‘NATIONAL EMERGENCY’
Supreme Court takes suo motu cognisance of Covid crisis, asks Centre to present national plan for oxygen, medicines, vaccines, lockdowns
The Supreme Court on Thursday called the crisis triggered by the second Covid-19 wave a “national emergency” as it initiated a public interest litigation on its own, and asked the Centre to present before it on Friday a national plan to combat the crisis that has now made India the worst hot spot of the entire global pandemic.
“The situation in various parts of the country is grim. There seems to be a sudden surge in the number of Covid patients and mortality,” said the bench, headed by Chief Justice of India (CJI) SA Bobde, while taking a suo motu cognisance of the surge in infections, which have led to a shortage of hospital beds and crucial supplies such as medical oxygen and medicines.
The order said its focus areas at this time were the supply of medical oxygen, essential medicines, the method and manner of vaccination, and the declaration of lockdowns to check the spread of the disease.
Issuing the notices to the Union and state governments, it asked solicitor general Tushar Mehta to remain present in the court with the national plan on availability and distribution of essential supplies and services.
The bench, which also includes justices L Nageswara Rao and S Ravindra Bhat, appointed senior advocate Harish Salve as amicus curiae to assist the court.
A day after India saw the world’s biggest one-day jump in Covid-19 cases ever, the country again broke all records as 332,394 new infections and 2,255 deaths were reported on Thursday, both new single-day records.
The ferocious second wave of infections has overwhelmed hospitals and crematoriums across the country and has led to frantic cries for help on social media as patients throughout the country struggled to arrange for beds, key medical supplies such as oxygen and medicines.
Pointing out that at least six high courts were hearing issues related to the preparedness of the states and the Centre to deal with the crisis, the bench also issued notices to the petitioners before the high courts, asking why uniform orders should not be passed by the Supreme Court.
“The high courts have passed certain orders which may have the effect of accelerating and prioritising the services to a certain set of people and slowing down the availability of these resources to certain other groups whether the groups are local, regional or otherwise,” recorded the court in its order, while telling Mehta that these orders were also creating confusion and diversion of resources because of different priorities.
“Prima facie, we are inclined to take the view that the distribution of these essential services and supplies must be done in an even-handed manner
according to the advice of the health authorities which undoubtedly take into account relevant factors like severity, susceptibility, the number of people affected and the local availability of resources,” the court recorded in its four-page order.
On the issue of lockdowns, the CJI, whose bench had on Tuesday stayed an order of the Allahabad high court for virtually locking down five worst-hit districts of Uttar Pradesh, observed that this authority should be with the state government. “We want to keep the power to declare lockdown with states. It cannot be a judicial decision,” he remarked.
In its order, the apex court also asked the Union government to apprise it of existence or requirement of a coordinating body that could consider allocation of the resources in a consultative manner with the involvement of concerned states and Union territories in addition to providing logistical support for transportation and distribution of essential medicines, oxygen and other resources.
The bench further asked the Centre to consider the declaration of essential medicines and medical equipment required for treatment of Covid-19 as “essential commodities” under the law.
When Mehta asked if the
Centre was still required to make submissions before the high courts after the top court’s cognisance, justice Bhat said that the central government should go ahead and adduce its national plan before high courts since the idea was not to supersede high court orders at this moment. However, the CJI was of the opinion that it was perhaps a better idea for the Supreme Court to hear everything together and the matters before the high courts could be transferred to it.
During the hearing, the bench had observed that it will issue a notice only to the Centre at the moment. But the written order released in the evening mentioned notices to all the states as well as the petitioners before the high courts.
Experts questioned this move.
Senior counsel and former additional solicitor general Indira Jaising, however, questioned why justice Bobde put the matter before himself on Friday when he knew that he will not be able to deal with it after one hearing because he is demitting office.
“No one had complained about any high court order. So who was the aggrieved party? Can high court orders be bypassed without being challenged? If the Delhi high court had not stepped in at a latenight hearing on Wednesday, many more lives would have been lost,” she told HT, referring to the high court’s order on a Max hospital plea urgently seeking medical oxygen.
Former attorney general and senior lawyer Mukul Rohatgi also termed the suo motu registration of the case as “ill-conceived”.
“In Covid times, the apex court is hardly functioning when you have just two-three benches sitting there off late. On the other hand, high courts have been doing a great job. They should not be stultified. Proactive high court benches across the nation should rather get a pat on their back for holding courts at all times and rising to the occasion. In any case, this issue should have been left to the new CJI who takes over on Saturday, just a day later.”
Salve, who was present in the court on behalf of Vedanta with a request for reopening its Sterlite Copper plant in Tamil Nadu’s Thoothukudi to produce and supply oxygen for Covid-19 patients, said people were dying every day. “We want this permission only for starting the oxygen plant. And we will supply it free of cost. Give us the permission today and we can start producing it in 5-6 days.”
The plant was shut down in May 2018 after 13 civilians were shot dead in the anti-Sterlite protests in Thoothukudi. The Madras high court in August 2020 rejected Vedanta’s petition to reopen the plant, citing environmental concerns. The Supreme Court has also rejected requests to reopen the plant for a trial run.
Salve said Vedanta was pleading only for making the oxygen plant in Thoothukudi functional so that it could provide thousands of tonnes of oxygen for medical purposes.
Mehta cited the dire need for medical oxygen and added that the Centre was augmenting its supply from all possible sources. “Let Vedanta operate its plant only for the purpose of producing oxygen and this will be diverted only for medical purposes. Sooner the plant starts functioning, better for the country.”
Senior advocate CS Vaidyanathan, who represented the Tamil Nadu government, said there was a “trust deficit” with Vedanta. He added the violations for which the plant was shut could not be ignored. The state government opposed any urgent hearing of Vedanta’s application.
Justice Bobde questioned the Tamil Nadu government’s attitude. “What is this attitude? You are not manufacturing it [oxygen] and you will be getting it free of cost for your medical emergencies. We will make sure they follow all environmental norms, but we do not appreciate your attitude. This is a national emergency. Do not throw spokes like this,” the CJI told Vaidyanathan, while fixing the hearing into the matter on Friday.
Mehta said between protecting human life and the environment, they must lean toward protecting human lives.