Centre’s O2 plan needs a ‘serious revamp’: SC

NEW DELHI: The Supreme Court on Thursday said the country needs to be prepared for the third wave of Covid-19 which experts say could be more harmful, especially for children, and emphasised upon the need to create buffer stock of oxygen.

The top court said the central government’s formula of oxygen allocation “seriously needs to be revamped”.

It asked the Centre not to reduce oxygen supply to Delhi from 700MT till further orders and ensure that rationalisation exercise is completed while taking into account the pan-india perspective.

The top court said that people in Delhi are dying despite efforts being made to treat Covid-19 patients and there is also no denying that many have lost their lives due to shortage of oxygen supply. It made clear to the

Centre and Delhi government that it will not allow the top court of the country to be a ground of recrimination between the two as both indulged in a blame game on the

issue of allocation and supply of oxygen.

A bench of justices DY Chandrachud and MR Shah said: “We need to prepare for the third

and South Africa. And given the consensus-based approach of the WTO, it will not happen overnight.

“The administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines,” US trade representative Katherine Tai said. “We will actively participate in text-based negotiations at the World Trade Organization (WTO) needed to make that happen.”

The proposal will now be discussed and cleared by the general council, which is the highest decision-making body of the WTO. The council will lay down conditions under which member countries will be allowed to “violate” the agreement on Traderelated Aspects of Intellectual Property Rights (TRIPS), which protects patents and copyrights. This could take weeks and months or years as it did when WTO dealt with patented drugs and HIV/AIDS that was the last time it confronted similar policy challenges, according to people familiar with ongoing negotiations.

Though immediately “pleased” by the US decision, India would wait for the conclusion of the text-based negotiations for the final outcome of its proposal. It could be the largest beneficiary of the waiver as the vaccination-producing hub of the world, currently overwhelmed by domestic demand.

In the joint proposal filed in October, India and South Africa had sought a waiver of TRIPS provision “in relation to prevention, containment or treatment of COVID-19”, covering, in other words, vaccines, diagnostic kits and technologies and therapeutics such as remdesivir.

The US support for waiver is only for vaccines.

The Biden administration had been under mounting pressure from lawmakers of the ruling Democratic Party and rights groups at home and a growing number of WTO member nations — more than 100 at last count — to reverse US opposition to the waiver proposal ordered by Trump. Trump who was in office when India and South Africa moved their joint proposal last October. The US was joined in its opposition to the waiver by the European Union, the UK, Japan and Switzerland, essentially developed countries that had built up sizable stockpiles of vaccines and therapeutics.

“The Administration’s aim is to get as many safe and effective vaccines to as many people as fast as possible,” Tai said. “As our vaccine supply for the American people is secured, the Administration will continue to ramp up its efforts – working with the private sector and all possible partners – to expand vaccine manufacturing and distribution.”

India and South Africa moved the proposal before the WTO calling for temporary waiver of the agreement on TRIPS to protect patents and copyrights, with the goal of ensuring easy and affordable access globally, and specially to developing countries, to Covid-19 vaccines, therapeutics and related technologies till the pandemic had been crushed.

The proposal secured the support of the majority of the members of the WTO.

“The decision probably wasn’t made lightly,” said Atman Trivedi, an Obama administration official, who was on Biden’s presidential transition team, pointing to the centrality of intellectual property safeguards to the American economy. “But the strong humanitarian case, as infections surge in India, throughout South Asia, Latin America, and other parts of the developing world, is compelling.”

The second wave of Covid-19 in India added a sense of urgency to the debate on whether or not the US should support the waiver, as the tragedy unfolding in overcrowded, ill-equipped and understaffed hospitals and overwhelmed cremation grounds was depicted in graphic details in words and visuals in the US media.

Rick Rossow, who holds the India chair at the Center for Strategic and International Studies, a leading tank, welcomed the Biden administration decision but said, “India and other nations have the right to break patents anyways under Compulsory License rules.”

“But proactively announced American support further helps repair the damage caused by the noticeable period of American inaction from mid-april.”

The US announced an expansive package of assistance for India last weekend. Many observers here and in India have said it was too late to stem the devastation that is unfolding there, with untold shortages of life-saving oxygen supplies, personal protective equipment and therapeutics.

surge of Covid-19 which may have altogether different parameters. We have to be ready for that. We have been reading that some experts have said that the third surge will be more harmful especially to children.

“We understand children are more resilient as compared to elders but we have to also consider that they themselves will not go to hospitals and their parents will have to take them making them vulnerable.”

The bench warned both solicitor general Tushar Mehta, appearing for the Centre, and senior advocate Rahul Mehra, representing Delhi government, that the Supreme Court being the top Constitutional court of the country cannot be allowed to be a ground of recrimination. “We are making it clear that this is not an adversarial litigation. We are not going to allow this court to become a ground of recrimination between two governments. We won’t allow any recrimination to be made against Delhi government or the Central government. All we want is that everyone should work in a cooperative manner,” the bench told Mehta and Mehra.

Mehra further said that despite the top court’s direction, Centre has failed to allocate requisite oxygen to the state even on Thursday as per their estimate, a day after it had given 730MT.

He said that the Centre has tried to put the Delhi government in dock in every affidavit they have filed before the courts, and claimed that other tates like Madhya Pradesh and Punjab were given more oxygen than their demands.

At the outset, Mehta told the bench that the Centre has complied with top court’s order and instead of 700 MT oxygen ordered, it had ensured a supply of 730 MT to Delhi on Wednesday for treating Covid-19 patients.he said that a survey was conducted in 56 major hospitals of the national capital on May 4 and it revealed that they had significant stock of liquid medical oxygen (LMO).

The S-G said that unloading of oxygen tankers brought to Delhi is taking too long as the vehicles need to be sent back for refilling to the eastern corridors.he said if the Centre keeps on giving 700MT of oxygen to Delhi, it will deprive other states of equitable distribution as the demand of 700MT is not correct.

The bench said people and hospitals are making SOS calls including on social media that they have very limited oxygen left or they are running out of it, which is creating panic.

“People and even some big hospitals of the national capital are making SOS calls about a shortage of oxygen supply. Why are you not creating a buffer stock? If as you claim, Delhi is not using or needs 700MT and only 490MT is needed, then this excess 200MT can be used to create a buffer stock,” the bench told Mehta.

There can be a centralised pool of buffer stock, like if any hospital runs out of the oxygen, then it can immediately contact to replenish its supply which can save lives and avoid creating panic, it said. Mehta said there was no dearth of medical grade oxygen in the country but without blaming anybody, there are some lacunae with Delhi government efforts in distributing the gas internally.

He suggested that an audit of oxygen supply and demand be conducted across the country, which would clear the actual picture of which state needs how much gas and how much is allocated to it.

The bench said, “Your (Centre) formula of oxygen allocation seriously needs to be revamped. Although the court does not mean disrespect to the experts who devised that formula but it needs to be revamped. There are many Covid positive people who are in their houses but also need oxygen.”

It said creating of buffer stocks like was done in Mumbai, where several centralised points were made and it was publicised properly that if any hospital needed oxygen they could contact them, will assuage the people to a great extent and save lives.

“No one can deny that people have not died due to shortage of oxygen. We accept that not all lives are lost due to want of oxygen but still many have lost their lives. It’s a fact,” the bench observed.

The top court said the Centre will also have to consider the situation not only in small cities and metropolitan cities but also in rural areas where people are suffering for want of oxygen.

The S-G said that health is a state subject and it is they who decide how to distribute oxygen and how much to distribute.