Coronavirus: SC says it cannot be a ‘mute spectator’ during national crisis

The Supreme Court on Tuesday said that its suo motu intervention into the management of the coronavirus pandemic was not meant to supplant ongoing cases in various High Courts in the country, Live Law reported. The court, however, added that it cannot be a “mute spectator” at the time of a national crisis.

“We are playing a complementary role,” Justice DY Chandrachud said. “If the High Courts have any difficulty in dealing with an issue due to territorial limitations, we will help.”

The bench, also comprising Justices L Nageswara Rao and S Ravindra Bhat, heard the case after former Chief Justice of India SA Bobde took suo motu cognisance of shortages of oxygen and drug supply to coronavirus patients. Bobde retired a day after the first hearing of the matter.

Last week, the Congress and the Supreme Court Bar Association had pointed out that the High Courts were better placed to get immediate reports on the Covid-19 situation and pass swift directions in the cases.

On Tuesday, the Supreme Court also said that the High Courts were in a better position to monitor what was going on within their territorial boundaries, adding that the ongoing proceedings in various states will not be restrained.

During the hearing, Justice Bhat raised the matter of differential pricing of vaccines by manufacturers and asked Solicitor General Tushar Mehta on what the Centre was doing about it, Live Law reported.

“There are powers under the Drugs Controller Act, Section 6 of Patents Act,” the judge said. “This is a pandemic and a national crisis. If this is not the time to issue such powers, what is the time?”

Under India’s new vaccination policy, applicable from May 1, everyone above 18 years will be eligible for the shots. Covid-19 vaccine manufacturers will now have to allot 50% of the doses produced to the Centre. They will be allowed to sell the remaining 50% to states and private organisations in the open market.

On April 19, the Serum Institute of India said it will sell its Covishield vaccine to states at Rs 400 per shot and at Rs 600 for every dose to private hospitals. Bharat Biotech set the price of its Covaxin shot at Rs 600 each for state governments and Rs 1,200 for private hospitals.

However, the Centre will continue to procure its share of vaccines at Rs 150 per shot from both the manufacturers. This has drawn Opposition criticism, which claims that it amounts to profiteering on part of the drug companies.

In its Tuesday order, the Supreme Court asked the Centre to file an affidavit on the basis and rationale adopted in regard to the pricing of vaccines. It also asked the Centre to provide a projection of the vaccine requirement to meet the demands of the third phase of India’s inoculation drive.

The court asked the Centre to apprise it on the current total availability of oxygen in the country, enhancement of medical requirements, including bed for coronavirus patients, and the steps taken to ensure availability of essential drugs like remdesivir and favipiravir, Live Law reported.

The matter will next be heard on April 30, when the states can also make their submissions.

The court also appointed senior advocates Jaideep Gupta and Meenakshi Arora as amici curiae in the case. Senior advocate Harish Salve, who was earlier appointed as the amicus curiae, had recused himself from the position in the last hearing.

Centre’s affidavit on Covid-19

The Centre submitted a 200-page affidavit in court, highlighting that Prime Minister Narendra Modi and Union Home Minister Amit Shah were directly monitoring the oxygen crisis in the country, reported NDTV.

“Resultantly, more and more medical oxygen is generated and is being made available every day, keeping in mind not just existing requirements but potential future requirements,” the Centre said in its affidavit. “It is submitted that these efforts include augmenting oxygen supply from all available sources within India and also importing oxygen from other countries using not only the diplomatic channels but also personal intervention of the political executive.”

The affidavit also noted at least three advisories – February 21, February 27 and February 28 – were sent to states and Union Territories about a surge in Covid-19 cases. The advisories, according to the Centre, included cautionary alerts, asking the state authorities to keep a check on Covid protocols and “super spreader events”, reported NDTV.

The Centre’s affidavit also highlighted that the medical oxygen supplies in any country were not unlimited and that the government had initiated efforts to “augment oxygen resources and procure more” from all sources. Following this, the government said that the supplies were supposed to be distributed to all states in a balanced manner, considering the active Covid-19 cases, reported PTI.

For clarity and assurance to state governments, the Union government said it mapped supply sources to meet the rising demand. The states were asked to inform the Centre about these “progressive projections forecast for requirement for medical oxygen as on April 20, April 25 and April 30, respectively”, the affidavit said, according to PTI.

However, the Centre stated that this mapping cannot be static as it would change with the surge in Covid-19 cases.