COVID Coverage: National Pandemic Policy – 30th April 2021

Bench Examines Centre’s Policy

On day three of the hearings Justice Chandrachud addressed the affidavit submitted by the Solicitor General, Tushar Mehta on behalf of the Union of India. He emphasised the dialogical role of the bench in this hearing. Justice Chandrachud reiterated that matters of local importance must be raised in the High Courts while the Supreme Court dealt with issues of national importance and with cross border concerns.

Justice Chandrachud addressed the affidavit by highlighting sections that required more clarity. And posed questions that the affidavit hadn’t sought to answer. These issues broadly included –

• Information about the mechanism of oxygen supply and allocation to the states from the Centre.
• The availability of information to individuals and the States regarding availability of oxygen, with an emphasis on the rationality of distribution.
• Vaccination drives for frontline workers.
• Restrictions the Centre has considered short of a lockdown to curb the virus.
• Questions of access and awareness in rural areas with specific regards to access for those without internet due to the Centre mandating registration on the COWIN app in order to receive the vaccine.
• The viability of a national immunization model where the Centre buys 100% of the available medication prior to allocation to State Governments in order to curtail the differing prices of the vaccine for the State Governments and the Centre.
• The ability of the court under Sections 92 and 100 of the Patents Act, 1970 to enforce compulsory licensing i.e., allowing someone else to produce a patented product without the consent of the owner specifically in a national crisis.
• The Centre’s responsibility in tracking mutant strains, regulating hospital standards for admission and treatment, importing generic drugs as allowed under the patents act, and accounting for States lacking in facilities.

Justice Chandrachud also referred to his own opinion in Puttaswamy to emphasise the importance of an informed citizenry in times of crisis. Any efforts to cause an information clampdown in the country were strongly castigated, a position that the Solicitor General agreed with.

The 3-judge bench also repeatedly and strongly emphasised that this hearing is not meant to be adversarial and the sole purpose was to help the country move out from the pandemic.

Drug Pricing

Justice Bhat brought up the issue of drug pricing in the current scenario. He put forward that India was at the forefront of TRIPS (Trade Related aspects of Intellectual Property Rights) when it came to the issue of compulsory licensing and the organizations that are producing medications have received substantial grants. Justice Bhat pointed out to the Solicitor General that the Centre had the power to mandate a set price.

Justice Chandrachud asked questions about accessibility to the marginalized. Out of the 50% of the vaccines dedicated to those between the ages of 18-44 by the Centre, a significant proportion fall into these margins. Justice Chandrachud highlighted this plight in order to further his point regarding the necessity of a national immunization model at the current juncture.

Justice Bhat bemoaned the current situation of private manufacturers deciding the allocation of resources and that a private manufacturer cannot “…decide the allocation and provide equity of a public good”. He then directed The Solicitor General to tell the Centre to pick this up and ramp up the availability of the vaccines.

Advocate Vikas Singh, President of the Supreme Court Bar Association, raised two issues on the subject of drug pricing. Firstly, he pointed out that a reduction of the vaccine price from 350/- to 300/-, with the Centre budgeting 35000 crores for vaccines, would allow for the Central Government to cover the entire population. Secondly, he brought to the court’s attention a television report from NDTV where Adar Poonawalla had claimed that even at 150/-they were turning a profit on vaccine sales.

Augmentation and Availability of Oxygen

Justice Chandrachud then questioned the Solicitor General about the root of the oxygen shortage problem. The Solicitor General stated the problems did not lie in the availability of oxygen, but in the inability of state governments to “lift” i.e., transport and handle the oxygen.

On the subject of the shortage in Delhi the Solicitor General referred to a letter from a supplier that stated the Delhi government had failed to lift the oxygen they made available. He said that Delhi was a non-industrial state and to meet oxygen needs they needed to import. The submission was that the Centre and philanthropic industries were providing aid in doing so.

Justice Chandrachud responded to the Solicitor General with the fact that the Central Government was still responsible to the citizens of Delhi and referred to the surplus oxygen currently in the steel sector as a possible way to begin rectifying the shortage. The solicitor general expressed concerns with such an action, stating that any direction would also result in diversion from another area that may also be vulnerable.

Oxygen transportation and allocation mechanisms

Chief Secretary Sumita Dawra put forth a comprehensive presentation regarding the mechanism being used for oxygen distribution and allocation. Chief Secretary Dawra also used her time to expand upon the efficacy of the virtual control room in monitoring the needs of states, especially those worst affected, and directing resources to those in need.

She explained how at the inception of the control room there was an understanding that the framework they created could not be rigid as this is an evolving crisis with needs fluctuating constantly. On inquiry from the bench, Dawra and the Solicitor General put forth that States are being provided with real-time updates from the central control room and are given regular access to retrieve data.

The logistical role of the Centre and the control room was said to be mostly facilitative and to provide a platform where States and other players are to play their role.

Interlocutory Applications

A multitude of parties were present in the hearing, representing a wide variety of parties including State Governments, interest groups and individuals alike. The bench directed that all those with Interlocutory Applications are to submit them to the Amici Curiae for this case. The Amici for this matter have been tasked with deciding which IA’s will be heard by the court in future hearings.

On acceptance of their request to appoint Advocates on Record to assist them, they appointed advocates Mohit Ram and Kunal Chatterjee.