The Supreme Court said that it cannot remain as "mute spectators" in times of national crisis, justifying its intervention on the fallout from the second wave of covid in the country. The top court said its role was to complement, not substitute, the high court proceedings that have already taken cognizance of the practical matters on this issue in their respective states.
The apex court would only take up national issues which are systemic in nature, the bench led by Justice DY Chandrachud noted in its order. "High courts are in a better position to look into this. Supreme Court has to intervene too because there may be national or systemic issues," the bench added.
Supreme Court then appointed senior advocates Jaideep Gupta and Meenakshi Arora as amicus curiae in this matter. The court's directions came on a matter the former Chief Justice of India SA Bobde had taken cognizance of on April 22—a day before he retired from the top court.
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Noting the irregularity in vaccine pricing, the top court orally directed the Centre to examine the necessity of invoking provisions under the Patent Act to regulate its prices. "Regarding pricing on vaccination different manufacturers is quoting in different prices. You can invoke your powers under the Patents act during a pandemic and a national crisis, Justice Bhat said.
"And if this situation is not a pandemic and a national crisis, I don't know what is, he remarked.
Justice Rao observed that the bench had not perused the Centre's national policy if it had an. "Even if there is, I don't know if you have addressed the burden on health care (and its professionals). The projected number of increases in cases in the next few months are scary," Justice Rao observed.
The bench, which also comprised Justices LN Rao and S Ravindra Bhat, further highlighted tentative issues it wanted the Centre and the States to look into:
- Centre should apprise the court of the projected demand for oxygen and steps it has taken to augment the supply; a monitoring mechanism to oversee the supply to oxygen to various states; the basis of oxygen allocation to various states from the Central pool; the methodology for same; requirement by the states on a dynamic basis
- Steps taken to ensure effective supply of essential drugs including Remdisivir
- Steps taken for enhancement of health care infrastructure; the projected requirement of health care; increased testing capacity and projected number of beds required to meet the potential increase in the number of active cases. The centre must also clarify a model to ensure smooth communication between the Centre, States and all stakeholders.
- The Centre is directed to apprise the top court on its vaccination program and the projected vaccine requirement to ensure the vaccination of people in the age groups notified by the government. It shall also apprise the supreme court on the modalities pursued to ensure the availability of vaccines by procuring extra stock. The Centre must also inform the top court about its rationale behind the pricing of the vaccines—which it is negotiating with the respective manufacturing industries
- The Centre must notify a comprehensive panel of doctors—states must replicate this model at the state level—to communicate with the citizens on a daily basis on steps taken during the pandemic and to combat misinformation
During the hearing, several points came up for consideration. Senior advocate Anand Grover, representing a forum, sought the waiver of patents to allow other drug manufacturing companies to produce essential drugs like Remdesivir which were in scarce supply. Grover also sought details for the vaccine policy.
Senior advocate Siddhartha Dave, representing an individual, submitted that hospitals in various states were turning away patients on grounds of bureaucratic policy. This, he said violated several top court orders, which rule that hospitals can't turn a patient away.
Dave highlighted the rule in Gujarat where a patient maybe admitted to a hospital only if they contact the helpline number 108 and are brought in an ambulance provided by them. Walk-ins or patients coming in private vehicles were turned away, he said which has resulted in the deaths of at least two.