SCO Explains: COVID National Policy Hearings

Transcript

The COVID-19 pandemic has led to the courts in India to take on various unconventional roles and be involved in crisis management. At the Supreme Court Observer, we have been tracking important COVID related cases. This includes the creation of a National Policy for COVID management; the plight of migrant laborers; access to affordable screening and treatment of COVID; the contagion of COVID in prisons; protection of children in children’s homes, and the conducting of Board Exams. Several procedural and technological changes were also made at the Court to facilitate social distancing guidelines. In this episode of SCO explains, we will talk about the evolution of the Suo Moto case on carving a national policy for the distribution of essential supplies and services during the pandemic.

The second wave of the pandemic saw a record number of patients and drastic scarcity of oxygen and other medical supplies. The CJI at the time, Justice Bobde day noticed the disparate approaches to COVID management.  On 22nd April, 2021, a Bench consisting Chief Justice Bobde,  Justice Ravindra Bhat and Justice Nageshwar Rao took Suo Moto cognizance of the situation. In its early hearings the Supreme Court clarified that it did not seek to supplant High Courts. Article 226 of the Constitution of India gave it wide powers, which helped to Court understand ground realities better. The Court stated that it could not be a mute spectator and had to play a complementary role to the High Courts.

On the 27th of April, Justice D.Y Chandrachud replaced CJI Bobde due to the CJI’s retirement.  The Court appointed senior advocates Meenakshi Arora and Jaideep Gupta as Amici to the Court. The Bench passed an Order listing important issues that they wanted the policy to address. This included the projected demand of oxygen and a plan for its supply; a policy for admittance of patients into hospitals;  coordination between states for the supply of drugs and oxygen; vaccination policy, and a plan to deal with vaccination deficit.

On the 30th of April, the Solicitor General submitted an affidavit on behalf of the Union of India answering the questions raised by the Bench. Justice Chandrachud posed further questions that the affidavit did not answer. The Bench asked questions regarding the lack of information amongst citizens, as well as states regarding the supply of oxygen and demanded a rationale for the distribution process adopted by the Central government. Further they emphasised the vaccination of frontline workers and the lack of access to vaccines in rural areas. The Court also highlighted the issue of price differentiation in vaccines and asked why the Central government was not using its powers under the Patents Act, 1970 to issue compulsory licenses or create a price ceiling. The Court repeatedly emphasized that this was not an adversarial hearing and that the common goal was to help the country move out of the pandemic. Justice Chandrachud also highlighted the importance of an informed citizenry.  

On the 5th of May, the Supreme court initiated contempt proceedings against state and central officials for failure to comply with the Court’s Order to supply oxygen. The Bench referred to the system adopted in Mumbai for the distribution of oxygen that allowed the maintenance of buffer stocks and instructed the Solicitor General to refer to that system. The Court issued an Order asking the Central government to optimize the supply of oxygen so that a buffer stock can be maintained in case of emergencies. The Central government was also instructed to audit the actual stock of oxygen in the country.  

On the 6th of May, the Court highlighted the irregularities in the allocation of oxygen and suggested that the Central government should take up allocation. The Bench also suggested that the shortage of frontline workers can be dealt with by utilizing post-graduate NEET aspirants and trained nurses. Justice Chandrachud emphasized the importance of a dynamic pan-India plan, which includes rural areas. The court also noted that the Centre was not planning for the third wave and the immunisation of individuals that will be most effected.

After a gap of 24 days, the Court heard this matter again on the 31st of May. Since the previous hearing, the pandemic had come under some degree of control and new issues had arisen. The bench highlighted the issues with allowing private supply of vaccines for persons between the ages of 18 to 45.  The Court demanded a rationale for the difference in vaccination policies for different age groups. Further, the Court suggested that the Central government must negotiate prices of vaccines on behalf of the nation, rather than let states fend for themselves. The court noted that the COWIN app was made under the assumption that India is fully digitized, which is not reflective of ground realities. The lack of access to the internet or computers, excludes persons in rural areas. Justice Ravindra Bhat stated that instead of filing various affidavits, the Central government must submit a policy document and supporting documents that explain the rationale behind that policy. Justice Nageshwar Rao noted that the vaccine policy also had to take into account disabled persons and persons with comorbidities and their specific needs.

The Centre has been given two weeks to file an affidavit.

A more detailed report of the hearing so far and future updates on the National Policy is available on the Supreme Court Observer website.

Read our detailed coverage here.