- (1.) This order has been divided into the following sections to facilitate analysis: A. Introduction B. Outline of the Disaster Management Act C. Medical Infrastructure C.1 Submissions in UOI's Affidavits C.2 National Policy for Admission in Hospitals D. Oxygen allocation and availability E. Vaccines E.1 Vaccine capacity and disbursal E.2 Vaccine pricing F. Potentiality of Compulsory Licensing for vaccines and essential drugs G. Supply of Essential Drugs G.1 Submissions in the Central Government's Affidavits G.2 Recommendations G.3 Black Marketing H. Recommendations for augmenting healthcare workforce I. Epilogue J. Conclusion A. Introduction The genesis of this suo motu writ petition is in an order dated 22 April 2021. This Court took note of the unprecedented humanitarian crisis in the country, following the outbreak of the COVID-19 pandemic. Notices were issued to the Union of India[1], the Governments of the States and Union Territories[2], and to several petitioners who were before the High Courts. The Court observed: "the Union Government, the State Governments/Union Territories and the parties, who appeared to have approached the High Courts to show cause why uniform orders be not passed by this Court in relation to a) Supply of oxygen; b) Supply of essential drugs; c) Method and manner of vaccination; and d) Declaration of lockdown" [1] "UOI", referred interchangeably as "Central Government" [2] Collectively referred as "State Government" The Court directed the Central Government to : "1. Report on the existence or otherwise and requirement of setting up of a coordinating body that would consider allocation of the above resources in a consultative manner (with the involvement of concerned States and Union Territories). 2. Consider declaration of essential medicines and medical equipment including the above articles as essential commodities in relation to COVID. 3. In respect of coordination of logistical support for inter-State and intra-State transportation and distribution of the above resources."
(2.) The Court also had appointed an Amicus Curiae to assist it. However, the Amicus Curiae was, on his request, relieved of his position on 23 April 2021. Hearings in the matter were then conducted on 27 April 2021, where the Court appointed two new Amid: Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior Counsel. They will be assisted by Mr Kunal Chatterjee and Mr Mohit Ram, learned counsel and Advocate-on-Record. The Court began the hearing by noting that the jurisdiction it assumed under Article 32 did not automatically lead to the erosion of a High Court's jurisdiction under Article 226. Rather, the Court stressed on the importance of the jurisdiction under Article 226, and how High Courts may be better equipped to deal with issues within their own States. However, this Court assumed jurisdiction over issues in relation to COVID-19 which traverse beyond state boundaries and affect the nation in its entirety.
(3.) The Court noted that it was in receipt of an affidavit dated 23 April 2021 filed by the UOI. However, the Court directed the UOI to file an additional affidavit and the respective governments of the States/Union Territories to file fresh affidavits on four issues. The relevant extract of the order reads thus: "(i) Supply of oxygen - The Court should be apprised by the Union of India on (a) The projected demand for oxygen in the country at the present point of time and in the foreseeable future; (b) The steps taken and proposed to augment the availability of oxygen, meeting both the current and projected requirements; (c) The monitoring mechanism for ensuring the supply of oxygen, particularly to critically affected States and Union Territories as well as the other areas; (d) The basis on which allocation of oxygen is being made from the central pool; and (e) The methodology adopted for ensuring that the requirements of the States are communicated to the Central Government on a daily basis so as to ensure that the availability of oxygen is commensurate with the need of each State or, as the case may be, Union Territory. (ii) Enhancement of critical medical infrastructure, including the availability of beds, Covid treatment centres with duly equipped medical personnel on the basis of the projected requirement of healthcare professionals and anticipated requirements. The Union government will consider framing a policy specifying the standards and norms to be observed for admitting patients to hospitals and covid centres and the modalities for admission; (iii) The steps taken to ensure due availability of essential drugs, including Remdesivir and Favipiravir among other prescribed drugs and the modalities which have been set up for controlling prices of essential drugs, for preventing hoarding and for ensuring proper communication of the requirements at the level of each District by the District health authorities or Collectors to the Health Departments of the States and thereafter by the states to the Union Ministry of Health and Family Welfare so that the projected requirements are duly met and effectively monitored on a daily basis. (iv) Vaccination (a) Presently two vaccinations have been made available in the country, namely, Covishield and Covaxin; (b) As of date, the vaccination programme has extended to all citizens of the age of 45 years and above; (c) From 1 May 2021, the vaccination programme is to be opened up also to persons between the age groups of 18 to 45, in addition to the existing age group categories. The Union of India shall clarify (i) the projected requirement of vaccines as a result of the enhancement of coverage; (ii) the modalities proposed for ensuring that the deficit in the availability of vaccines is met; (iii) steps proposed for enhancement of vaccine availability by sourcing stocks from within and outside the country; (iv) modalities for administering the vaccines to meet the requirements of those in the older age group (forty five and above) who have already received the first dose; (v) modalities fixed for administering the vaccine to meet the additional demand of the 18-45 population; (vi) how the supplies of vaccines will be allocated between various states if each state is to negotiate with vaccine producers; and (vii) steps taken and proposed for ensuring the procurement of other vaccines apart from Covishield and Covaxin and the time frame for implementation; and (d) The basis and rationale which has been adopted by the Union government in regard to the pricing of vaccines. The government shall explain the rationale for differential pricing in regard to vaccines sourced by the Union government on one hand and the states on the other hand when both sources lead to the distribution of vaccines to citizens." ;