[Suo Moto COVID Crisis] “This Is An Exact Case Where We Should Go For Compulsory Licensing; This Is A Situation Of Public Health Emergency": Justice Ravindra Bhat

  • Sakshi Shukla & Shruti Kakkar
  • 03:10 PM, 30 Apr 2021

Supreme Court continued hearing Suo Moto plea concerning PAN India COVID Crisis, procurement and distribution of vaccine, oxygen supply, price regulation and need of invoking powers under Section 92 of the Patents Act.

A Special Bench of Justice DY Chandrachud, Justice L. Nageswara Rao and Justice S. Ravindra Bhat, while clarifying that the present litigation should not be treated adversarial in nature, emphasized on free flow of information in regard to calls for help by general public;

“We want to make it very clear that if citizens communicate their grievance on social media and internet, we cannot call it wrong. If any citizen is harassed for making grievance for bed or oxygen by the police, we will take it as a Contempt of Court. Let this message go to all DGPs, to all States. Let us hear out our citizens and not clamp down their voices.”

Reference was made to the Puttaswamy judgment, where Justice Chandrachud authored a distinct para on free flow of information during famine and effects it had in coping up with the situation.

Justice Rao highlighted that there are around 25000 Medical graduates and 200000 nurses who can assist in the present times where healthcare system is facing a major paucity of professionals.

Justice Ravindra Bhat flagged the issue of frontline workers including doctors, nurses;

“You should use your power to ensure that everyone who is working beyond a certain point, are paid more. (Referring to a recent notification) Doctors are required to come back on 11th day after recovering from COVID. Last year it was 14. We don't want to put them in danger!”

Citing the case of Bayer v. Natco, flexibilities under DOHA Declaration and Article 31 of TRIPS Agreement, Justice Bhat said,

“This is an exact case where we should go for compulsory licensing. This is a situation of Public Health Emergency.”

Recalling the past instances where hostels in Karnataka were created as a facility to treat COVID patients, Justice Bhat further suggested to utilize all places of public use, temples, churches, mosques, and other religious places as COVID facility with remuneration which may be paid later.

The Bench also laid emphasis on Government’s responsibility to negotiate with the manufacturers and provide vaccines to the State Government as difference in bargaining capacity may result in differential access/treatment.

On the shortage of Oxygen in Delhi and the submissions made by the Learned Solicitor General, Mr. Mehta;

SGI: Based on requirement, a particular amount was allotted to each State. In Delhi, the issue is being simultaneously discussed. The CG is pulling to extract oxygen from whatever place possible. The problem is of logistics.

SGI: Most of the state government are doing their bit to ensure logistics for carrying oxygen, one state, Delhi, I don't want to vitiate the atmosphere, Delhi has not been able to lift the oxygen.

Justice Chandrachud: Is it your case that Delhi is unable to lift oxygen?

SGI: Yes, even today the supplier has oxygen but lifting is the problem.

SGI: Every state is a proactive state. Delhi is a non-industrial state and here the problem is more acute. However, other non-industrial states are taking innovative ideas; I am not being judgmental to any particular state.

SGI: If the states are facing problem, CG is providing help to the states. There are some logistics issue in the states that need to be sorted out.

Justice Chandrachud: In Maharashtra and Goa, the need of the state is 784MT and you allocated 784MT. In Delhi the allocation is 490MT but what has been lifted is 360MT. Your affidavit states that we are not oxygen deficit country.

SGI: Delhi Government has claimed before the High Court that their demand was 700MT and they have been allocated 490 MT.

Justice Chandrachud: If you are aware of the requirement of 700 MT to Delhi, why did you only supply to Delhi 490MT?

SGI: These were the figures discussed.

Justice Chandrachud: Centre has a very valuable responsibility as far as Delhi is concerned. Delhi is not a full state. Why don't you give them the deficit? The ones who have left us, we cannot bring them back. But the ones who are with us, can we not save them? ... Forget someone’s inability, you are Centre, It is your Responsibility. We have tried to balance the position of Centre in our judgment of NCT of Delhi but now it is time to implement.

Senior Counsel Indira Jaising made a brief submission on abolishing GST on essential COVID supplies and medicines.

Former Union Minister and Senior Advocate Dr. Ashwani Kumar made submission on ban on political rallies.

Issues inter-alia flagged by the bench for Centre and the States

  1. What is the mechanism to display allocation of supply to different States by the Centre? Can a mechanism be maintained (with daily allocation update) of how much supply is being made to States from the Centre’s end and real time updates on a software from State/District’s end indicating to citizens which hospital has been supplied oxygen and the quantities remaining such that is easy for citizens to identify the medical aid available?
  2. What are the restrictions, short of lockdown, that the Centre is taking to curb the spread of virus?
  3. What sorts of efforts has the government made in terms of increasing the availability of tankers, cylinders and by when does it expect the supply of 800 additional tankers?
  4. What is the Government planning on the use of oxygen concentrators to reduce the demand of LMO and using it only for critical patients? Is there a comprehensive plan on augmenting the production/import of these concentrators?
  5. What is the expected supply of oxygen/medical aid to be received from outside India?
  6. How do the Central and State Government enable vaccine registrations for persons who are illiterate or don’t have access to internet, considering the mandatory registration on CoWIN App?
  7. Do the Centre or State Attempts to undertake Targeted vaccination drives for crematorium workers and other coordinate groups who are providing on-ground assistance during the pandemic?
  8. Is the reach of INYAS, the nation-wide vaccination awareness programme, to rural areas and low-income households in cities?
  9. Has the Central Government considered exercising its powers under Section 92, Patents Act, 1970, which enables compulsory licensing of patents in case of public health emergency?
  10. When will the disbursal of 50% of centrally procured doses be communicated to States? Will SII and Bharat Biotech have to demonstrate equity in disbursing vaccines between the States?