Having taken suo moth cognisance of the COVID- related issues in the country, the Supreme Court on Tuesday clarified that it does not intend to supplant or substitute the High Courts in their dealing of the practical issues and problems in their territories.
"We acknowledge that Article 226 is valuable for the protection of both Fundamental rights and legal rights. High Courts are best-situated to assess the ground realities in each state and come up with flexible solutions for practical concerns of the citizens. They may find solutions with the cooperation of all the authorities concerned", the bench headed by Justice D. Y. Chandrachud asserted.
At the same time, the bench clarified it is also important that the intervention of the top court is appreciated in proper perspective, that the Court has jurisdiction under Article 32 towards the protection of fundamental rights, and that in the face of a national crisis, the court cannot stand silent as a mute spectator.
"Our role will be complimentary to the functioning of the High Courts. Neither is intended to substitute the other. We are on the national issues, the broader issues of a systematic nature, the issues which are beyond state boundaries and that is why the suo motu cognisance was taken"
"By the pendency of these proceedings, the High Courts are not restrained from continuing to deal with the issue that they are seized of", the bench, also comprising Justices L. Nageswara Rao and Ravindra Bhat, stated.
The bench, on Tuesday, required the Union of India to highlight the following issues before the Court:
Supply of oxygen – the bench initially required the Centre to tell the total availability of oxygen in the country, but SG Tushar Mehta urged the court to avoid this aspect –
" I have good reason for it. The oxygen is being augmented but I don't want to create any panic".
Then, the bench agreed to exclude this point.
Instead, the court has asked to be apprised of the projected demand for oxygen in the country at present and the future; the steps being taken to augment the availability of oxygen; the monitoring mechanism to be put into place for the supply of oxygen to the states; the basis of allocation of oxygen to the states from the central pool; and the methodology for communication of states' requirement to the Centre on a daily basis.
Enhancement of critical medical infrastructure- The bench also asked the Centre to clarify the issue of enhancement of the critical medical infrastructure- number of beds, Covid treatment centres equipped with personnel, healthcare professionals.
The Court has also asked for details as regards the availability of essential drugs such as Remdesivir. The bench also indicated the need for a system of seamless communication of their requirements from the district collectors to the Health Departments of the states to the Ministry of Health and Family Welfare and for a daily monitoring of the same.
Vaccination: The bench recorded, "As of now, there are two vaccines which are available in the country- Covishield and Covaxin. At present, the vaccination has been extended to all above the age of 45 years, and from May 1, the age group of 18 to 45 will be added to this existing group".
The order requires the Union of India to clarify the projected requirement of vaccine and the modalities to ensure that any deficit will be catered to.
"The Union of India shall also highlight the basis and the rational for the pricing of the vaccine", directed the bench.
The bench also suggested the setting of a comprehensive, official line of communication at a national level, where individuals may acquire information on a daily basis for combating the pandemic at their level. The bench suggested that the Union of India come up with an identified panel of specialists for this purpose, which model can be replicated by the state governments.
The bench also appointed Senior advocates Jaideep Gupta and Meenakshi Arora as amicus curiae in the matter.
The following is the courtroom exchange as it transpired:
SG Tushar Mehta: I have filed a detailed reply.as has been rightly indicated by Your Lordships, that this is the fight for the nation; If we fails the nation fails; if succeeds, then we succeed collectively. Apropos to what Your Lordships said that there must not be any political bickering (in the earlier matter where Vedanta has been permitted to run its oxygen plant in Madras), it is with the same spirit that I have filed this affidavit.
Unfortunately, since the affidavit could only be filed today, Your Lordships would not have the occasion to see it. But just to satisfy Your Lordships, may I indicate a letter by the Additional Director, Health averring that some states like that of Kerala and Tamil Nadu have made a rational utilisation of oxygen and there has been a reduction in their consumption by 25%, and urging all other states to follow in their footsteps.
So these states are appreciated! It is not about Aam Aadmi Party or BJP or the left or the Congress party! This is about one nation!
Justice Chandrachud: We would like to clarify that the purpose of the suo motu intervention is not to supplant the High Courts and not to take over the valuable role that they play under Article 226. It is a basic principle that 226 extends to the protection of both legal rights as well as fundamental rights. The High Courts are in a better position to monitor the territorial situation. At the same time, it is also important for the Supreme Court to intervene to look into the systemic, national issues and ensure the coordination at a national level and between the states, which the High Courts may find difficult to deal with. This is a national crisis and the Supreme Court of India, being the national Constitutional Court, cannot be a silent spectator. But we must clarify that we are not preventing the High Courts from continuing with the proceedings that they have begun. In fact, we support their endeavour. If they face any difficulties by virtue of their jurisdiction being confined to a state, we will take up from there and ensure that their orders are enforced by cooperative means.
Considering that the amicus curiae (Senior advocate Harish Salve) appointed by the previous bench has been relieved, we would like to appoint other advocates to assist us on the matter. We are not against the orders of the courts, we only want certain visions before us, to be able to balance the different perspectives. Then we can come up with a median- a comprehensive, unified plan which may fulfil the needs of all citizens.
SG Mehta: The central government does not oppose any of the constitutional courts, be it the High Courts or the Supreme Court or both, who are calling upon us to assist them in knowing how the central government is dealing with this crisis. We are not even remotely questioning the jurisdiction. Your Lordships may examine what steps have been taken as regards the perceptional issues – from the beginning of the problem in 2019 till 2020; what steps are being continuously taken; how the second wave was kept in mind even though it was not anticipated; what guidelines and directions were issued; how, as a nation, we are dealing with the unprecedented surge.
The coordination between the states inter se is a matter which is being looked into from the highest political executive level, by both the Centre and the states. There have been meetings of the Prime Minister and the Chief Ministers. We are proud to say that except in certain exceptional cases, there is no question of one state being pitched against the other or against the Centre. The situation is being monitored and reviewed hourly. The work is progressing on a war footing. The provisions under the Disaster Management Act have been taken recourse to to iron out any differences. We are not here as 'A' government or 'B' government or 'A' party or 'B' party, but as a nation before this court.
Justice Bhat: I wish to flag two issues which are exclusively in the central government's power – one, the use of central forces – paramilitary forces, the army doctors, the Armed Forces which are not deployed at the border, and the railways- which can be used as a common facility for hospitals, transportation, vaccination. What is the national planning on this? I am not saying if it is right or wrong, it is just for necessary for us to know.
Two, in order to combat this pandemic, we need to vaccinate the maximum number of people. The key element here is pricing. It is the central government which has negotiated a certain price till now. But now the different manufacturers are citing different prices. What is the central government thinking with regard to this? It is their power under the Drug Price Control Order. There is also the power under section 100, Patents Act (Power of Central Government to use inventions for purposes of Government). If this is not a national emergency, then I fail to understand what is (for the exercise of the government's extra-ordinary authority under the aforesaid statutory provisions). If you clarify this, a lot of issues would be resolved at the level of the High Courts. If these issues have not been considered, you may consider them now.
SG Mehta: Substantially, they are there in my affidavit. To the extent they are not, I will put them on record. But I can assure Your Lordships that the central government resources are being put to optimum use in every which way possible.
The bench then heard advocates voicing the concerns of the different states and other stakeholders:
Senior advocate Vikas Singh, (for the SCBA, being an intervenor in these proceedings amid the initial apprehension of withdrawal of proceedings before the High Courts to the SC; and for the state of West Bengal): Your Lordships opening statement clarifies the SCBA concerns. I am also appearing for the state of West Bengal – in the 73 years, the vaccine pricing for the Central and the state governments has always been the same. It is for the first time now, that the pricing for Covaxin is Rs.150 for the Centre and Rs.600 for the states and 1200 for the private parties and for Covishield, it is Rs.150 for the Centre and 400 and 600 respectively for the states and the private parties. This is creating a huge problem. Since it is the central government which is negotiating the vaccine, there is no reason for there to be differential pricing between the Centre and the states. As regards the private players, it is still understandable.
Secondly, under the DM act, it is the union secretary which is heading a committee of all secretaries as regards the issue of movement of oxygen between states. If it is only the central task force which is looking into it, the word of the states may get lost. So an endeavour may be made to involve the representatives of the states in their 'zoom' meetings.
Senior advocate Abhishek Manu Singhvi, for the state of Rajasthan: For Rajasthan, one issue, which is occurring perhaps unintentionally, is that it is the largest state with the lowest density of population. There are 750 km to be transversed from Bhiwadi till Jaisalmer. It touches five states and it also touches Pakistan. One has to travel hundreds of kilometres to reach some of the remote villages. Cases in the state are increasing at a galloping rate. As per our figures yesterday, the number of active cases is 1.29 lakhs. As of May 9, our projections show that the oxygen requirement will double. The national allocation plan has 2 sources for us- 100MT from Bhiwadi and 40 from the Reliance plant in Jamnagar. Today, we need 300 MT. By 9th may, we will need 550. The oxygen availability per active case is 6 kg in Madhya Pradesh, 2.81 in UP, 8.02 in Gujarat and in Rajasthan, it is 0.6. Please look at the disparity.
Justice Chandrachud: This is not the correct index. Every patient does not need oxygen. What you have done is divided the number of patients by the oxygen availability.
It may be noted that the Delhi high court on Monday said it expects the Rajasthan government to honour the orders not to obstruct cryogenic tankers carrying medical oxygen for COVID-19 patients to other states, observing that any obstruction at this stage will tantamount to endangering hundreds of human lives.
Dr. Singhvi: Yesterday, the Delhi High Court was misled by a statement by Inox, which runs the Bhiwadi plant, that certain tankers which they were bringing to Delhi have been 'detained' by the state of Rajasthan. The Delhi High Court then, unfortunately, said that they hope and trust that such a thing would not be done. Of course, it cannot be the intent of the Courts to transfer the problem from state 'A' to state 'B'. But Inox did not tell the High Court that 23 tankers have been requisitioned by Rajasthan by an April 21 order of the district authorities under the Disaster Management Act. Even the 23 tankers are too less for Rajasthan.
Justice Rao: You can approach the Delhi High Court for a correction of the order.
Dr. Singhvi: The order is between Inox and the Union of India. I am not a party in the High Court. I was not heard. And anyway, the Delhi High Court does not extend to Rajasthan. But if there is no clarification of the order, it will come to be implemented.
Justice Chandrachud: Why must we micromanage these issues now as to why the tanker was stopped or detained. If you are hurt by the order, you can challenge it before us. Otherwise, go to the High Court and clarify the position.
Dr Singhvi: The High Court is not hearing states but it is hearing individual parties, hospitals and the Union of India. There are also some limitations on state High Courts in doing such things. I don't want my tankers, which are travelling 1000 kilometres to serve areas dispersedly, to hamper a national cause!
Justice Bhatt: Even as we speak, you can go to the High Court. We will write a one-line order.
Justice Chandrachud: You can give a factual clarification regarding the tankers being stopped or detained over there. The other issues, we will handle here.
SG Mehta: The question before the High court was nonavailability of tankers to supply oxygen to the Delhi government. The scheme is such that it is the Centre which allocates the oxygen. We call for potential leads from the state government. Based on the availability of oxygen as at 12:30 on any day, the quantity is allocated in consultation with the state governments. Then it is for the state government to arrange for tankers. We are running double engine trains, there is an electric engine and also one that runs on diesel, so in case the electricity fails, they can still deliver to the destination. These trains use the green corridor, which means that there is no stoppage from the place of departure till the destination. It is on these trains that the tankers are mounted. The Delhi government was not able to find sufficient tankers. So the Delhi High Court court called on Inox, which is a major supplier, and they were pointing out to the court their problem.
The central government also had the same problem. Initially, it was a serious one, and though it continues even now, its gravity has reduced. Suppose, certain tankers are directed to go from Gujarat to Madhya Pradesh, the Gujarat government may hold on to them, saying that our people are also dying. And these tankers come to be stopped by the District Magistrates and the DSPs. So the central government under the DM Act has said that it will be a criminal offence to stop the tankers. Now this is rarely occurring. We also have a central virtual control room, where there are joint secretaries and additional secretaries working 24/7. If any such report comes, then the Home Secretary etc discusses it with the concerned state chief secretary.
Inox said that four tankers have been detained by Rajasthan. The court said that this is unfair and illegal and also violative of the directive of the central government. Probably, the tankers are still with Rajasthan. But the state is not my opponent. I am only showing the circumstances in which the order was passed.
Advocate Rahul Mehra, for the GNCTD: As a government, we have nothing against the state of Rajasthan. We are all together, we are all Indians. It was not on our asking that that order was passed. The court even relegated the Rajasthan government to the central government to make any representations. Nobody is to be prejudiced, there are to be no coercive steps against anybody. It is all to be in a cooperative spirit. Now if Delhi start stopping tankers, there will be chaos. Every state must cooperate.
SG Mehta: This used to happen a lot in Haryana and in UP. It was then when the Home Minister said that these tankers be treated as an ambulance, that not only must they not be prevented from moving but they must be given way!
Dr Singhvi: But the catch is that the Inox used wrong words like 'detain' and 'stop'. It was a requisition of the tankers to store oxygen for transferring it. Rajasthan is 10 times larger than any other state. How do I otherwise transport?
Justice Chandrachud: Dr Singhvi, you may explain this to the High Court-why the tankers were stopped, who stopped them.
Senior Advocate S. Niranjan Reddy (for the state of Andhra Pradesh): The oxygen is being allotted from the central pool, and it is being allotted from Orissa to Andhra Pradesh, from Visakhapatnam to Maharashtra. There is no difficulty in that, but it is disrupting the existing supply lines and the logistical chain. The northern part of Andhra Pradesh is closer to Orissa and the southern part is closer to Tamil Nadu. So Parcelling out the states in smaller regions may help.
Justice Rao: Mr. Solicitor, you may consider what Mr Reddy is saying. If you allot Tamil Nadu to the norther part of Andhra Pradesh, there might be logistical issues. We have a 1000 km coastline.
Also, have you dealt with the availability of healthcare professionals? Taking into account their fatigue over the past one month and the future which seems to be scary? Where do we stand, how do we plan?
SG Mehta: Although the allotment which is made geographically may seem illogical, but there are several considerations, such as their need, the requirements of the other states, of other units. But this mechanism is ever-evolving. If any other mechanism seems to be better, it can always be considered. Nothing is cast in stone. In fact, if we have directed a supply from state A to state B and suddenly there is a surge in a neighbouring state, we re-route. We are open- our only concern is maximum augmentation of oxygen, keeping in mind the future requirements, and of the maximum coverage of oxygen.
Advocate Yatin Oza (for an NGO): Since there are only a limited number of companies which are producing the essential medicines, there is an acute shortage. There may be a waiver of all intellectual property rights. The Union of India may take recourse to sections 92 (on compulsory licensing) and 100 of the Patents Act. Same route may be adopted with regard to the vaccination policy.
Senior advocate Siddharth Dave: There is also a need for a uniform policy for admission to hospitals in all states. In Delhi, you need the SDM's sign in order to be admitted in a hospital. (Mr Oza pointed out that two patients died outside a hospital in Gujarat as they were not admitted on account of arriving in a private vehicle and not the '108' ambulance service).Your Lordships have held that the right to medical facilities is a fundamental right and it cannot be denied by this bureaucracy.
SG Mehta: This is a very valid issue. As a citizen and a potential patient, it is my concern also. Although I am not opposing individuals from approaching this court, but it is the states who are being dealt with with here...The Delhi High Court and the Gujarat High Court are also in seisin of this issue and they can be moved...
Justice Chandrachud: But Mr Dave is not asking for our intervention, he only seeks that the central government may lay down a uniform hospitalisation policy. Although we are on the national, systemic issues, if individual grievances present a national picture, we will look into them.
SG Mehta: Even if Your Lordships should look into the individual grievances, we are not opposing it. We are only saying that the individual problems may not serve the purpose with which Your Lordships are examining this issue, when the high courts have already taken suo motto cognisance of the related issues. This is because in each state, the availability of beds, doctors etc is different.
Justice Chandrachud: Yes, there is free play in the joints for the states. But there must also be a broad framework as to when one can be hospitalised.
As the bench prepared to dictate its order, advocate Sachin Patil pointed out that 30% of the test reports are wrong, and even though the patient has all the symptoms of Covid, just because the report is negative, they are not getting treatment.
After the bench passed its order, listing the matter for Friday, Justice Chandrachud observed,
"But we must clarify that there must be no recrimination. Recriminations will not save life. It is the bench's appeal to you. The matter must proceed in a cooperative spirit. We have to arrive at a final solution"
"Equally, we are aware that in our exercise of judicial review, we are not overtaking the executive power of the government. We only want to be apprised of what is happening and to throw suggestions at you. Like Mr Reddy validly pointed out that there must be a parceling of states", added Justice Chandrachud to the SG
SG Tushar Mehta assured that he has received intimation from the Centre that some changes in this direction have already been taken care of.