From anti-viral drugs to oxygen: How High Courts responded to Covid-19 second wave

On Thursday, the Supreme Court decided that it needed to intervene as the Covid-19 pandemic crisis claimed even more lives and India’s medical resources were impossibly strained.

The bench headed by Chief Justice SA Bobde, who is set to retire on Friday, initiated suo moto proceedings to consider four critical problems relating to the response of the authorities to the pandemic: the supply of oxygen, the supply of essential drugs, the method and manner of vaccination and the state’s powers to declare lockdowns.

However, High Courts in several states have already started proceedings related to several of these problems.

While the chief justice indicated that some of the proceedings pending before the High Courts could be withdrawn and placed before the Supreme Court, Justice Ravindra Bhat told Solicitor General Tushar Mehta that the court was not superseding the High Court proceedings “as of now”.

In the written order released later, the court said the High Courts have passed certain orders which may have the effect of “accelerating and prioritising the services to a certain set of people and slowing down the availability of these resources to certain other groups.”

Issuing notice to the Centre, states and parties who had approached the High Courts, the bench asked them to show cause as to why it should not issue uniform orders for the entire country on the problems it had listed.

The court also wanted a national plan to be framed to handle the crisis. It appointed senior lawyer Harish Salve as amicus curiae to assist the court in the proceedings and said the matter will be taken up again on Friday.

During the proceedings, Chief Justice Bobde said that while the efforts of the High Courts on the pandemic response were appreciated, this was leading to some confusion and causing resources to be diverted.

Here are some of the orders relating to the pandemic that High Courts have passed in April.

Delhi High Court

The Delhi High Court witnessed dramatic scenes on Wednesday evening when a top hospital in the capital approached the court pleading that it order oxygen to be supplied to the institution.

Proceedings relating to the grave oxygen situation in Delhi had actually started on April 19, when the High Court revived a public interest litigation filed last May by advocate Rakesh Malhotra that it had closed in January after the pandemic weakened.

The Delhi High Court bench consisting of Justices Vipin Sanghi and Rekha Palli began to consider several problems, including the delay patients were experiencing getting Covid-19 test results, the plight of migrant workers who had lost their livehoods with the city’s lockdown and the shortage of medical oxygen in the capital.

The bench asked the Central government to “examine the availability of oxygen in different states in the country in the context of the spread of the pandemic so that oxygen could be made available to the areas where it is most required, looking at the surge in Covid cases”.

It also asked for data on the number of hospital beds (both intensive care and non-intensive care) available in Delhi both in the state-run and Centre-run hospitals.

Further, the bench ordered a medical oxygen manufacturer to honour its contracts with Delhi after the government informed the court that the supply of 140 metric tonnes of medical oxygen from the company had suddenly stopped as it was diverting the stocks to other states.

When the matter was taken up again on Tuesday afternoon, the Delhi High Court expressed a sense of alarm at the oxygen shortage in Delhi.

The Centre informed the court that to bridge the gap in demand and supply, it had said only nine categories of industries would be allowed to use oxygen at this time and all other available industrial oxygen is being diverted for medical purposes. The bench, however, was not convinced with the order which said it would come into force from April 22.

The court said:

“The need for oxygen is now. Any delay in this regard would lead to loss of precious lives. We, therefore, direct the Central Government to implement the said decision forthwith, and make available oxygen to hospitals which are running out of their supplies, lest there is grave loss of life suffered by patients being treated there at.”

The order also dealt with testing capacity and shortage of drugs for treatment of Covid-19. The court asked the Centre to consider exercising its powers under the Patents Act to ensure manufacture and supply would be stepped up. It also asked the Centre to encourage manufacturers to grant voluntary licences to other firms to ramp up production. The matter was posted for April 22.

However, on the evening April 21, the Max hospital chain in Delhi moved the High Court with an urgent petition stating that it would run out of oxygen in a few hours.

The court urged the Centre to “beg, borrow and steal” oxygen to fulfil its responsibility of protecting the right to life and health of citizens.

In addition to asking the Centre to ensure the supply of the 480 metric tonnes of oxygen required by Delhi, it also obtained an assurance from the Centre’s lawyer that the smooth transport of oxygen would be ensured.

Even though the Supreme Court took suo motu cognisance of the matter on Thursday, the Delhi High Court went ahead with hearing petitions related to the pandemic as there was no stay on the proceedings.

On Thursday, the bench reiterated its position that the Centre should ensure unobstructed oxygen supply to Delhi, after it was informed that tankers headed to the capital were being blocked in Haryana and Uttar Pradesh. The court said local authorities responsible for the movement of oxygen would be held criminally liable if they do not comply with its orders.

Bombay High Court

The Bombay High Court was in the news this week for two matters relating to the Covid-19 pandemic.

The first was a public interest litigation taken up by the Nagpur bench of the High Court, which passed several directions regarding the supply of drugs used for Covid-19 treatment and medical oxygen supply in Nagpur city and district.

On April 12, the High Court directed the district administration to ensure the proper availability of the antiviral drug remdesivir and asked the officials to look into complaints that the drug tocilizumab was being hoarded. It also asked the Maharashtra chief minister to consider setting up an oxygen production plant in Nagpur expeditiously.

On April 13, the state government informed the court that it has in principle accepted the suggestion to set up an oxygen plant in Nagpur. Further, on April 17, the bench ordered that Covid-19 test reports be sent to the patients immediately over WhatsApp and on hard copy without waiting for them to be uploaded to the portal of the Indian Council for Medical Research.

On April 19, after applications were moved again over the shortage of remdesivir, the bench ordered the Maharashtra government to release 10,000 vials of the medicine immediately for use in Nagpur. On April 21, when it was brought to the court’s notice that its order on remdesivir was not followed, the court lashed out at the government. It said that it was ashamed that it was part of a “nasty society” and that it could not do much for the patients. It then ordered the authorities to report on the matter at 8 pm.

At the late evening hearing, the officials reported that 5,652 vials of the drug had been received between April 19 and April 21, and 6,520 vials would be received by Thursday morning.

The court on Wednesday also ordered increase of oxygen supply to Nagpur, after taking note of a communication from the Centre on April 18 that cut down supply to the city from a plant in Bhilai by 50 metric tonnes.

In the meantime, the principal bench of the High Court on Wednesday admitted a public interest litigation filed by a lawyer on the deteriorating Covid-19 situation in Maharashtra. The petition highlighted problems relating to the availability of drugs, oxygen and hospital beds in the state. On Thursday, despite being informed by the Centre’s lawyer that the Supreme Court had taken suo motu cognisance of the Covid-19 situation, the High Court continued to hear the matter.

Allahabad High Court

Perhaps the strongest intervention over the Covid-19 situation came from the Allahabad High Court on April 20.

On April 13, the High Court had asked the Uttar Pradesh government to consider restricting public movement to breach the chain of Covid-19 transmission.

On April 20, the High Court said the administration had failed to draw up a plan despite its orders. Therefore, the bench said it was constrained to intervene even though it was aware that lockdown measures were purely in the domain of the executive.

“Those in the helm of affairs of governance are to be blamed for the present chaotic health problems,” the bench observed. It then ordered for a lockdown in the five cities of Prayagraj, Lucknow, Varanasi, Kanpur Nagar and Gorakhpur.

However, the Supreme Court stayed this order the next day.

Calcutta High Court

With West Bengal witnessing an eight-phase state election, there has been widespread criticism of flouting of Covid-19 protocols during the election campaign, with leaders across parties addressing large meetings.

On April 13, the Calcutta High Court passed a slew of directions on two petitions, stating that extraordinary situations required extraordinary measures.

It asked the district collectors to ensure that the Covid-19 protocol for elections issued by the Election Commission of India was followed strictly in letter and spirit, adding that the collectors and the chief election officer would be held personally responsible for the implementation of the guidelines.

It asked the administration to ensure that residents wore masks and followed physical distancing norms.

On April 19, it asked the election officials to use the government machinery and the police force to ensure strict compliance of the pandemic protocols.

Madhya Pradesh High Court

Like Delhi and Bombay High Courts, the Madhya Pradesh High Court also intervened on a host of issues relating to the pandemic, including the supply of oxygen, antiviral drugs and testing infrastructure.

In a 49-page order on Monday issued on five petitions that the state government had failed to effectively act to counter the pandemic, the court agreed that the state’s health infrastructure was not adequate.

On the supply of antiviral drug remedesivir, the court asked the state government to devise a policy that would ensure that patients received the drug within an hour of it being prescribed by the doctor. It asked the Centre to consider stepping in to arrange the oxygen by diverting the available stock of liquid medical oxygen from the steel plants and other industries located across the country.