Hindustan Times (Lucknow)

‘We also hear cries’: SC asks govt to overhaul Covid plan

- Utkarsh Anand letters@hindustant­imes.com NEW DELHI:

The Supreme Court on Friday asked the central government for a “substantia­l rethink of its policy decisions” on handling of the public heath emergency set off by the second Covid-19 wave, as it emphasised on the augmentati­on of medical oxygen, an overhaul of the vaccinatio­n programme to ensure equitable distributi­on, and deregulati­ng exclusive intellectu­al property rights to boost the production of essential drugs.

Among the urgent suggestion­s the court made was that the Centre must consider increasing Delhi’s medical oxygen quota by 210 metric tonne (MT), raising it from the current 490MT, which has been a repeated demand of the Dehi government, and ensure that supply reaches the Capital.

“The interventi­on of the Supreme Court must make a difference in people’s lives. It must save some lives,” remarked the bench, headed by justice Dhananjaya Y Chandrachu­d, as it listed out the areas of concern where, it said, the government must “do some serious thinking on their policy decisions and revisit them”.

Reading out from a note prepared by him, justice Chandrachu­d highlighte­d that the focus areas of the court, in its first comprehens­ive interventi­on into the current Covid crisis, included the management and augmentati­on of medical oxygen with a

real-time central dashboard for demand and supply; a plan to make vaccines available to everyone in the country at the same price with an endeavour to make them free for the poor and the maginalise­d; compulsory licences to more manufactur­ing units after a temporary waiver of the patents in order to ramp up production of essential medicines such as remdesivir and favipiravi­r; and ensuring hospitalis­ation to all those who require urgent medical aid.

“We also hear people crying. People who have crossed our paths crying for a cylinder of oxygen. Today the ground situation in the national capital is that there is no oxygen... or for that matter, in Gujarat or in other states. We can’t revive who have left us but we can certainly do something to save life of several others. We want you to tell us within a foreseeabl­e future, what is going to be the difference? How will things change on the ground?” the bench, which included justices L Nageswara Rao and S Ravindra Bhat, asked solicitor general Tushar Mehta, who represente­d the Centre.

While fixing the next date of hearing as May 10 to enable the Centre to respond to the necessity of modifying its policies, the bench said it will issue some interim directions to take care of the present situation, and the order will be uploaded on the Supreme Court website on Saturday morning.

One of the immediate directions, the court said, will be on ensuring that no patient is turned away by a Covid care facility in any state for want of a residentia­l proof or any particular identity card.

The S-G responded that the Centre was talking to all states since it was aware that there could be a second surge of infection which could be more seri These ous than the first wave. He said that the Union government may issue directions for a uniform policy for admission of patients in the hospitals while other priorities such as augmentati­on of medical oxygen and ramping up of vaccine manufactur­ing were being looked into diligently.

When Mehta said that the Delhi government has not been able to lift the allotted quantity of oxygen for want of tankers, the bench responded that the Centre had a “very valuable responsibi­lity” where citizens of Delhi were concerned.

“Delhi represents the nation and there is hardly any one ethnically Delhiite. Delhi represents people from all over the country. You have a special responsibi­lity as the Centre,” it observed and added that the Centre must also help Delhi in arranging tankers for transporta­tion of oxygen.

In the suo motu (on its own) proceeding­s of the top court, Mehta was assisted by Sumita Dawra, an additional secretary in the ministry of commerce and industry, who heads the oxygen procuremen­t and supply coordinati­on team at the Centre. Dawra contended through a presentati­on that there was enough quantity of medical oxygen available in the country, and the issues relating to tankers and transporta­tion were being ironed out.

The court had several pointed queries on the vaccinatio­n policy, apart from ramping up the production of essential medicines by way of deregulati­ng the patent. Justices Chandrachu­d and Bhat repeatedly underscore­d that there was a looming national emergency, requiring the Union government to suspend the patent rights of the manufactur­ers of essential drugs so that more units could be put to task to meet the pressing demand.

The bench reminded the S-G of the pertinent provisions of the Patent Act, asking why the Supreme Court should not issue authorisat­ion for using the patent for government purposes whereby the government could give compulsory licences for generics to manufactur­e remdesivir, favipiravi­r and tocilizuma­b after temporaril­y suspending the intellectu­al property rights.

“You can declare a national emergency and then use your powers under the Patents Act so that anybody can manufactur­e these drugs on your licences. This is a case where we should go for compulsory licensing. Look at statistics. Germany, Canada and many other countries have done the same thing. This is a public health emergency. You have no less than 10 PSUs that can take over and start manufactur­ing,” the bench told the S-G, asking for a response to this on the next date.

“Doha Declaratio­n of TRIPS shows that member states can take such steps to protect right of public health. Why should the court not issue directions under Section 100 and Section 92 to enable generics to manufactur­e these drugs without the fear of legal action? Is the logistical concern more important than right to health?” asked the judges.

The bench added that under the existing legal regime, India could bypass the patent rules for remdesivir by importing the drug from Bangladesh, and could also take a licence from the neighbouri­ng manufactur­er to produce the drug in India.

About the vaccinatio­n programme, the bench questioned the difference in vaccine pricing for the Centre and states, and asked why citizens of the same country should be made to pay more based on when or where they were inoculated.The court urged the Centre to follow the model of the national immunisati­on programme, where the Centre negotiated with the vaccine manufactur­ers and bought vaccines for the entire country while the states took care of the transporta­tion.

“Why isn’t the government buying 100% of doses? What is the rationale of Centre and state pricing? Ultimately it is for the citizens of the same country. You have created this duopoly of manufactur­ers and only Serum Institute of India and Bharat Biotech are producing these vaccines. But we cannot allow cooperativ­e federalism when it comes to pricing of drugs. This is a national emergency. You place the order and let states lift it. You have been able to get at Rs 150 for 20 crore people. The same manufactur­ers are now charging states between Rs 400 and 600,” the court told Mehta.

It further noted that the vaccine companies were selling the vaccines at lower prices to foreign nations. “Why should we, as a nation, purchase it at a higher rate? There is no point of different prices,” the bench told Mehta. “We are talking about the pricing of the vaccines because we believe that the most marginalis­ed of the people should get the vaccine free even if they are below 45,” added the court.

It also wanted to know from the government the investment­s it has made and advances given to the two companies -- Serum Institute of India and Bharat Biotech -- for research and innovation, as well as for increasing production of vaccines.

The bench asked Mehta how the government expected illiterate people and marginalis­ed sections to register themselves on the centralise­d CoWin portal for inoculatio­n when they neither had the knowledge nor the access.

Some of the other issues that the Centre needs to address by May 10 include the availabili­ty of beds, proactive testing, number of Covid care centres, adequacy of health care profession­als, their protection and treatment, and helplines in every district.

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