Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 237

SUPREME COURT OF INDIA
Dhananjaya Y. Chandrachud, L. Nageswara Rao, S. Ravindra Bhat, JJ.
IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC.
Suo Motu Writ Petition (Civil) No.3 of 2021
Decided on : 30-04-2021

Advocates Appeared:
Mr. Tushar Mehta, SG Ms. Aishwarya Bhati, ASG Mr. Rajat Nair, Advocate, Mr. Kanu Agrawal, Advocate, Mr. Amit Mahajan, Advocate, Mr. Prashant Singh B, Advocate, Mr. Raj Bahadur Yadav, Advocate, Mr. Gurmeet Singh Makkar, Advocate, Mr. Tushar Mehta, SG Mr. Maninder Singh, Sr. Advocate, Ms. Manisha Lavkumar, Sr. Advocate, Mr. A P Mayee, Advocate, Dr. Abhishek Manu Singhvi, Sr. Advocate, Mr. Mahendra Singh Singhvi, Advocate, Gen. Mr. Amit Bhandari, Advocate, Mr. Sandeep Jha, Advocate, Mr. Vikas Singh, Sr. Advocate, Mr. Suhaan Mukerji, Advocate, Mr. Vishal Prasad, Advocate, Ms. Deepeika Kalia, Advocate, Mr. Nikhil Parikshith, Advocate, Mr. Abhishek Manchanda, Advocate, Mr. Kapish Seth, Advocate, Mr. Mrityunjai Singh, Advocate, Mr. Sayandeep Pahari, Advocate, M/S. Plr Chambers and Co. Mr. Vikas Singh, Sr. Advocate, Mr. Pradeep Kumar Rai, Sr. Advocate, Ms. Mahalakshmi Pavani, Sr. Advocate, Mr. Arijit Prasad, Advocate, Mr. Brijender Chahar, Sr. Advocate, Ms. Sonia Mathur, Sr. Advocate, Mr. Vikas Pahwa, Sr. Advocate, Mr. Meenesh Dubey, Advocate, Ms. Ritu Bhadwaj, Advocate, Mr. Anupam Mishra, Advocate, Ms. Nina Gupta, Advocate, Ms. K.V. Bharathi Upadhyaya, Advocate, Mr. Mukesh Kumar Singh, Advocate, Ms. Sasmita Tripathy, Advocate, Mr. Prashant Singh, Advocate, Ms. Prerna Kumari, Advocate, Ms. Seema Patnaha, Advocate, Ms. Nandani Gupta, Advocate, Mr. Rahul Kaushik, Advocate, Mr. Rahul Mehra, Sr. Advocate, Mr. Satyakam, Advocate, Mr. Gautam Narayan, Advocate, Ms. Asmita Singh, Advocate, Mr. Adithya Nair, Advocate, Mr. Anand Grover, Sr. Advocate, Ms. Rajeshwari Hariharan, Advocate, Mr. R. Sathyanarayanan, Advocate, Ms. Nupur Kumar, Advocate, Ms. Mantika Haryani, Advocate, Ms. Astha Sharma, Advocate, Ms. Indira Jaising, Senior Advocate, Mr. Nipun Saxena, Advocate, Mr. Paras Nath Singh, Advocate, Mr. Umang Tyagi, Advocate, Ms. Serena Sharma, Advocate, Ms. Mantika Haryani, Advocate, Ms. Astha Sharma, Advocate, Mr. Amarjit Singh Chandiok, Sr. Advocate, Mr. Prashant Kumar, Advocate, Ms. Anindita Pujari, Advocate, Mr. Amarjit Singh Bedi, Advocate, Mr. S. Niranjan Reddy, Sr. Advocate, Mr. Mahfooz Ahsan Nazki, Advocate, Mr. Polanki Gowtham, Advocate, Mr. Shaik Mohamad Haneef, Advocate, Mr. T. Vijaya Bhaskar Reddy, Advocate, Mr. Amitabh Sinha, Advocate, Mr. Shrey Sharma, Advocate, Mr. Yatin Oza, Sr. Advocate, Mr. Purvish Jitendra Malkan, Advocate, Ms. Dharita Purvish Malkan, Advocate, Ms. Deepa Gorasia, Advocate, Mr. Alok Kumar, Advocate, Ms. Neha Ambashtha, Advocate, Ms. Nandini Chhabra, Advocate, Ms. Bhavna Sarkar, Advocate, Mr. Ranjit Kumar, Sr. Advocate, Mr. Manish Kumar, Advocate, Mr. C.S. Vaidyanathan, Sr. Advocate, Mr. Balaji Srinivasan, Advocate, Ms. Garima Jain, Advocate, Ms. Pallavi Sengupta, Advocate, Ms. Lakshmi Rao, Advocate, Mr. Aishwarya Choudhary, Advocate, Ms. Aakriti Priya, Advocate, Mr. Mohammed Shahrukh, Advocate, Mr. Prateek Yadav, Advocate, Mr. Devasish Garg, Applicant in Person Mr. Parvesh Sahib Singh Verma, Applicant in Person Mr. Anil Grover, Sr. AAG Ms. Bansuri Swaraj, AAG Dr. Monika Gusain, Advocate, Mr. Rahul Chitnis Advocate, Mr. Sachin Patil, Advocate, Mr. Aaditya A. Pande, Advocate, Mr. Geo Joseph, Advocate, Mr. M. Yogesh Kanna, Advocate, Mr. RajaRajeshwaran S., Advocate, Mr. S. C. Verma, Advocate, Gen. Chhattisgarh Mr. Sumeer Sodhi, Advocate, Ms. Simran Agarwal, Advocate, Mr. Vikram Sharma, Advocate, Mr. K.V. Jagdishvaran, Advocate, Mrs. G. Indira, Advocate, Ms. Ruchira Gupta, Advocate, Mr. Shishir Deshpande, Advocate, Mr. Anurag Sharma, Advocate, Mr. Abhishek Kumar Srivastava, Advocate, Dr. A.P. Singh, Advocate, Mr. Sadashiv, Advocate, Mr. V.P. Singh, Advocate, Ms. Geeta Chauhan, Advocate, Ms. Richa Singh, Advocate, Mr. Sharwan Kumar Goyal, Advocate, Mr. Jai Gopal Saboo, Advocate, Mr. Purushainder Kaurav, Advocate, Gen. MP Mr. Pashupati Nath Razdan, Advocate, Mr. Sunny Choudhary Advocate, Mr. Pulkit Agarwal, Advocate, Mr. Sudhanshu Kaushesh, Advocate, Mr. K.P. Jayaram, Advocate, Mr. Astik Gupta, Advocate, Ms. Maitrayee Jagat Joshi, Advocate, Mr A.D.N. Rao, Advocate, Mr A. Venkatesh, Advocate, Mr Rahul Mishra, Advocate, Ms. Ananya Khandelwal, Advocate, Mr. V.N. Raghupathy, Advocate, Ms. Siddhesh Kotwal, Advocate, Ms. Manya Hasija, Advocate, Ms. Ana Upadhyay, Advocate, Mr. Nirnimesh Dube, Advocate, Mr. Pukhrambam Ramesh Kumar, Advocate, Ms. Anupama Ngangom, Advocate, Mr. Karun Sharma, Advocate, Mr. Sunny Choudhary, Advocate, Mrs. K. Enatoli Sema, Advocate, Mr. Amit Kumar Singh, Advocate, Mr. Vivek Kolhi, Advocate, Gen Sikkim Mr. Sameer Abhyankar, Advocate, Mr. Amish Tandon, Advocate, Mr. Ayush Beotra, Advocate, Mr. Varun Tandon, Advocate, Mr. Dipin Tamang, Advocate, Mr. Uddhav Khanna, Advocate, Ms. Shafali Jain, Advocate, Mr. Amit Kumar, Advocate, Gen Meghalaya Mr. Avijit Mani Tripathi, Advocate, Mr. Shaurya Sahay, Advocate, Mr. Chetan Joshi, Advocate, Mr. G.M.Kawoosa, Advocate, Ms. Taruna Ardhendumauli Prasad, Advocate, Mr. Parth Awasthi, Advocate, Mr. Abhimanyu Tewari, Advocate, Ms. Eliza Bar, Advocate, Ms. Garima Prashad, Sr. Advocate, Mr. Abhinav Agrawal, Advocate, Ms. Garima Prashad, Sr. Advocate,/AAG Mr. Vishnu Shankar Jain, Advocate, Mr. Rakesh Malhotra, Advocate, Mr. Tungesh, Advocate, Mr. Shashank Deo Sudhi, applicant-in-person Mr. Chirag M. Shroff, Advocate, Mr. Shibashish Misra, Advocate, Mr. S. Debabrata Reddy, Advocate, Mr. Avnish Kumar Sharma, Advocate, Mr. Jishnu M.L., Advocate, Ms. Priyanka Prakash, Advocate, Ms. Beena Prakash, Advocate, Mr. G. Prakash, Advocate, Applicant-in-person Dr. Manish Singhvi, Sr. Advocate, Mr. Sandeep Kumar Jha, Advocate, Mr. Atul Nanda, Advocate, Gen, Punjab Mr. Karan Bharihoke, Advocate, Ms. Neha Sahai Bharihoke, Advocate, Mr. Siddhant Sharma, Advocate, Mr. Pashupathi Nath Razdan, Advocate, Mr. Pradeep Kumar Yadav, Advocate, Ms. Shikha Yadav, Advocate, Mr. Abhay Singh Yadav, Advocate, Mr. Sanjeev Malhotra, Advocate, Mr. Himanshu Chaubey, Advocate, Mr. Nitin Lonkar, Advocate, Ms. Sonali Suryawanshi, Advocate, Mr. Himanshu Chaubey, Advocate, Mr. Shibashish Misra, Advocate, Mr. Haris Beeran, Advocate, Mr. Mushtaq Salim, Advocate, Mr. Usman Ghani Khan, Advocate, Mr. Azhar Asees, Advocate, Ms. Pallavi Pratap, Advocate, Ms. Astha Sharma, Advocate, Ms. Manju Jetley, Advocate, Dr. Menaka Guruswamy, Sr. Advocate, Mr. Govind Manoharan, Advocate, Mr. Ibad Mushtaq, Advocate, Ms. Aishwarya Murali, Advocate, Mr. Victor Das, Advocate, Ms. Ambika Mathur, Advocate, Mrs. Shally Bhasin, Advocate, Mr. Purvish Jitendra Malkan, Advocate, Dr. Ashwani Kumar, applicant in person Ms. Raushan Tara Jaswal Advocate, Ms. Shobha Gupta, Advocate, Ms. Medha Garg, Advocate, Mr. Anurag Tomar, Advocate, Mr. Rameshwar Prasad Goyal, Advocate, Mr. S. Udaya Kumar Sagar, Advocate, Ms. Sweena Nair, Advocate, Mr Arunabh Chowdhury, AAG Mr Krishnaraj Thaker, AAG Ms Pragya Baghel, Advocate, Mr Kumar Anurag Singh Advocate, Ms Pallavi Langar, Advocate, Mr. Devashish Bharuka, AoR Mrs. Jaya Bharuka, Advocate, Mr. Ravi Bharuka, Advocate, Ms. Sarvshree, Advocate, Mr. Justine George, Advocate, Ms. Srishti Agarwal, Advocate, Mr. Ankit Agarwal, Advocate, Ms. Taniya Bansal, Advocate, Mr. Manoj V George, Advocate, Mr. Ranjit Philip, Advocate, Ms. Palak Arora, Advocate, Mr. K. Panmei, Advocate, Ms. Shilpa Liza George, Advocate, Mr. Shuvodeep Roy, Advocate, Ms. Diksha Rai, Advocate, Ms. Ninmisha Menon, Advocate, Mr. Deepak A. Masih, Advocate, Ms. Manreet Kaur, Advocate, Ms.Kusum, Advocate, Mr. R. N. Keswani, Advocate, Mr. J. Sai Deepak, Advocate, Mr. Guruswamy Nataraj, Advocate, Mr. V. Shyamohan, Advocate, Mr. Surya Prakash, Advocate, For M/S KMNP LAW Advocate, Mr. Viplav Sharma, in-person for the Appearings Parties

IMPORTANT POINTS
(1) Corona Pandemic – No patient shall be denied hospitalization or essential drugs in any State/UT for lack of local residential proof of that State/UT or even in absence of identity proof. Admissions to hospital must be based on need.
(2) Provisions of Sections 35 and 36 of Disaster Management Act, 2005 have been enacted in spirit of cooperative federalism in order to ensure that Central Government can assist and enable State Governments to effectively tackle disaster in question.
(3) Corona Pandemic – Once vaccination programme has been opened up for persons other than 45 plus age group, it would not be logical to impose obligation to source vaccinations for 18-44 age group on State Governments. Central Government must take responsibility of providing guidance to every State on quantities to be supplied to each State, vaccine(s) being allocated, period of delivery, and number of persons who can be covered for vaccination, among other details.

Headnote:
(A) Disaster Management Act, 2005 – Sections 6, 11, 35 and 36 – Corona Pandemic – Preventive measures – COVID-19 falls under definition of a disaster under Section 2(d)5 of DMA and provisions of DMA were invoked for first time to deal with present pandemic – A National Plan includes measures for disaster prevention, mitigation, preparedness and roles and responsibilities of different Ministries in terms of Section 11(3) of DMA – A National Plan for entire country was prepared in year 2016 and was revised and notified in November, 2019 – National Plan, 2019 provides a framework to Government agencies to deal with different aspects of disaster management – Provisions of Sections 35 and 36 of DMA have been enacted in spirit of cooperative federalism in order to ensure that Central Government can assist and enable State Governments to effectively tackle disaster in question – Since COVID-19 is a novel virus, knowledge in relation to such a virus is contemporaneous in nature and is subject to constant development – There was no need to develop a fresh National Plan under Section 11 for COVID-19 since a National Plan was already in place, which was being supplemented by various orders and measures taken by competent authorities under DMA – National Plan, 2019 can be supplemented by issuance of additional guidelines to tackle any aspect of disaster management including issue of admission to hospitals and access to essential drugs and vaccines in respect of COVID-19. (Paras 6, 8, 13 and 14)
(B) Corona Pandemic – Medical Infrastructure – There is no national policy on how admissions must take place in various tiers of hospitals (CCC, DCHC and DCH) – Gaining admission into a hospital with a bed is one of biggest challenges being faced by most individuals during this second wave of COVID-19 pandemic – Left to their own devices, citizens have had to suffer immeasurable hardship – Different states and local authorities follow their own protocols – Differing standards for admission in different hospitals across nation leads to chaos and uncertainty – Situation cannot brook any delay – Central Government directed to frame a policy in this regard, in exercise of its statutory powers under DMA, which will be followed nationally – Presence of such a policy shall ensure that no one in need is turned away from a hospital, due to no fault of their own – Such a policy should address requirement of a positive test for COVID-19 virus, which may become difficult for many individuals since testing facilities are overwhelmed, test results are taking inordinately long time and new strain of COVID-19 virus is sometimes not even picked up by a regular RT-PCR test – Hospitals are refusing to admit individuals who cannot produce a valid ID card which shows that they belong to city where hospital is located – Given how overstretched our hospitals are during second wave of COVID-19 pandemic, it is entirely plausible that individuals may travel to other cities in desperation, since beds may not be available in their city – Rural health infrastructure is seriously deficient – No hospital should be allowed to deny them entry solely based on this reason or any other issues with identity proofs – Admissions to hospital must be based on need – Central Government, in consultation with respective State Governments, must formulate guidelines on the stage at which hospitalization is required so as to ensure that scarce hospital beds are not occupied by persons who do not need hospitalization – This aspect should be based on advice of medical experts and can be suitably altered given needs of each State (or regions within State) and in course of experiences gained during pandemic – Directions issued to all States, Union Territories, and all public agencies, to ensure that orders are implemented forthwith – Central, State and Union Territory governments shall issue necessary orders and circulars, incorporating the directions, within three days, which shall be in force till replaced by an appropriate uniform policy, devised by Central Government, statutorily. (Para 23)
(C) Corona Pandemic – Preventive Measures – Vaccines and Medicines – Once vaccination programme has been opened up for persons other than 45 plus age group, it would not be logical to impose obligation to source vaccinations for 18-44 age group on State Governments – Central Government must take responsibility of providing guidance to every State on quantities to be supplied to each State, vaccine(s) being allocated, period of delivery, and number of persons who can be covered for vaccination, among other details – Leaving State Governments to negotiate directly with manufacturers will produce chaos and uncertainty – Object of vaccinating 18-44 age group cannot be achieved in absence of stocks being available – Several critical drugs, used to treat COVID-19, such as Remdesivir and Tocilizumab, are being sold at significantly inflated prices or in fake form – This is a condemnable attempt to exploit people’s misery and profit from their helplessness – In order to clamp down on this practice, Central Government can consider constituting a special team to identify and prosecute those who sell medical grade oxygen/COVID-19 medicines at exorbitant prices and sell fake substances and recover concerned substances – A protocol for ambulances must also be evolved to avoid citizens being exploited by extracting unconscionable charges – Central Government can consider creating a platform for easy reporting and redressal of such cases – Widespread sharing of information by individuals living through COVID-19 pandemic becomes crucial – Role of Courts in creating and preserving this collective public memory cannot be understated – Central Government shall, in collaboration with States, prepare a buffer stock of oxygen for emergency purposes and decentralize location of the emergency stocks – Central Government shall revisit its initiatives and protocols, including on availability of oxygen, availability and pricing of vaccines, availability of essential drugs at affordable prices and respond on all other issues highlighted in this order before next date of hearing, that is, 10th May 2021 – Central Government shall, within two weeks, formulate a national policy on admissions to hospitals which shall be followed by all State Governments – Till formulation of such a policy by Central Government, no patient shall be denied hospitalization or essential drugs in any State/UT for lack of local residential proof of that State/UT or even in absence of identity proof. (Paras 36, 56, 57, 64 and 69)
Facts of the case:
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 India1, the Governments of the States and Union Territories2, and to several petitioners who were before the High Courts. 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.
Findings of Court:
In light of continuing surge of infections in the second wave of the pandemic, we direct the Central Government and State Governments to put on record the efforts taken to curb the spread of the virus and the measures that they plan on taking in the near future. At the same time, we would seriously urge the Central and State Governments to consider imposing a ban on mass gatherings and super spreader events. They may also consider imposing a lockdown to curb the virus in the second wave in the interest of public welfare. Having said that, we are cognizant of the socio-economic impact of a lockdown, specifically, on the marginalized communities. Thus, in case the measure of a lockdown is imposed, arrangements must be made beforehand to cater to the needs of these communities.
Result : Directions issued.

ORDER

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.2 National Policy for Admission in Hospitals

D. Oxygen allocation and availability

E. Vaccines

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

1. 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 India¹["UOI", referred interchangeably as "Central Government"], the Governments of the States and Union Territories^{2^{[Collectively referred as "State Government"], and to several petitioners who were before the High Courts. The Court observed:}}

a) Supply of oxygen;

b) Supply of essential drugs;

c) Method and manner of vaccination; and

d) Declaration of lockdown"

The Court directed the Central Government to :

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:

(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 communica

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2021 Supreme(SC) 237

SUPREME COURT OF INDIADhananjaya Y. Chandrachud, L. Nageswara Rao, S. Ravindra Bhat, JJ.IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC.Suo Motu Writ Petition (Civil) No.3 of 2021Decided on : 30-04-2021

Cases Referred (2)

SUPREME COURT OF INDIA
Dhananjaya Y. Chandrachud, L. Nageswara Rao, S. Ravindra Bhat, JJ.
IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC.
Suo Motu Writ Petition (Civil) No.3 of 2021
Decided on : 30-04-2021