Updated: May 1, 2021 7:03:00 am
In a key hearing on the Covid crisis that covered a range of issues, from vaccines and oxygen to testing and hospital admissions, the Supreme Court on Friday described the pricing of vaccines as “extremely important”, wanted to know from the Government if it is “doing something” to regulate that, and asked: “Why should there be two prices for the Centre and states?”
The court also warned state governments against any clampdown on grievances shared online by the public on the crisis and advised High Courts to avoid “off-the-cuff remarks” during Covid hearings as they “can give rise to misgivings about any individual”.
The bench of Justices D Y Chandrachud, L Nageswara Rao and S Ravindra Bhat suggested several measures for the Centre to consider: increase vaccine manufacturing facilities, implement compulsory licensing to manufacture generic drugs, put in place a display mechanism for real-time updates on oxygen supply; and, devise a uniform policy for hospital admission.
The court was hearing a suo motu matter regarding management of Covid. Its remarks come at a time where several High Courts, Calcutta to Madras to Karnataka, have pulled up the Centre and state governments over Covid mismanagement — and after both vaccine manufacturers, Serum Institute of India (Covishield) and Bharat Biotech (Covaxin), announced separate prices for the Centre and states.
“Vaccine pricing is extremely important. Don’t leave it to the manufacturers. How will they determine equity?” the bench asked Solicitor General Tushar Mehta. It asked the Government to “invoke” its “powers to see that additional facilities are created for vaccine manufacturing”.
“The manufacturers are charging you Rs 150 but Rs 300 or Rs 400 to states. Why should we as a nation pay this, the price difference becomes Rs 30,000-40,000 crore…No point for price difference. We are not directing it but you should look into it…AstraZeneca (Covishield) is providing vaccines at far lower price to the US citizens. Then why should we be paying so much?” Justice Bhat asked.
Pointing out that the Centre had said that 50 per cent of procurement will be done by states, the bench asked: “Will one state then get priority access over another in getting the vaccines… how will the vaccine manufacturers ensure equity?”
The bench further asked: “Why is the Central Government not buying 100 per cent of doses since it is best placed to determine equity and disburse…why not follow the pattern of national immunisation policy where the centre acquires and gives the vaccines to states?”
Stressing the need for additional infrastructure for manufacturing, Justice Chandrachud said: “We are conscious that health infrastructure is inherited in the past 70 to 100 years and this is not a critique of what we said. We are too seasoned to start value judgments.” Referring to oxygen supplies, the bench suggested: “Can there be a display mechanism put in place for real time update of this information to people?”
On key drugs for Covid patients, the bench referred to Bangladesh manufacturing Remdesevir and some Indian states importing it, and asked if India planned to replicate and enable manufacture of generic drugs without fearing legal action.
Compulsory licenses can be granted with a sunset clause, which shows that such licenses will be over once the pandemic is over, said Justice Chandrachud, adding that the Doha Declaration on TRIPS (Trade-Related Aspects of Intellectual Property Rights) shows that member states can take such steps to protect public health.
The court also sought to know why it should not issue directions under the Patents Act to enable generic manufacturers to make drugs like Remdesivir without fear of legal action. “This is a public health emergency. S-G, your affidavit says you have 10 PSUs which can manufacture. You can get licenses through patent control and get it manufactured,” Justice Bhat said.
At the end of the hearing, a counsel told the bench that hospitals in Noida and Gurugram were not enabling admissions if patients don’t have local address proof. Justice Chandrachud replied: “That is why we want the Centre to frame a uniform policy on hospital admission.” To another lawyer who raised the issue of migrant labourers, he said: “One of the reasons why we have asked the Government to rework the price of the vaccines is because the most marginalised of sections should get it.”
In the backdrop of reports that various states had issued warnings against posting Covid-related pleas on social media, the court said: “We want to make it very clear that if citizens communicate their grievance on social media and internet then it cannot be said it’s wrong information. We don’t want any clampdown of information. We will treat it as contempt of court if such grievances are considered for action. Let a strong message go to all the states and DGPs of states. Clampdown of information is contrary to basic precepts”.
On the oxygen shortage in Delhi and other states, Justice Chandrachud said: “Delhi represents the nation and there is hardly any ethnically Delhite…As a national authority which has a responsibility to the national capital, you are answerable to the citizens. You have a special responsibility as the Centre.”
Even as Mehta assured the court that the needful will be done, the court advised the AAP government to “coordinate with the Centre”. Justice Chandrachud told the Delhi government’s counsel Rahul Mehra: “There has to be an approach of cooperation…We do not want lives to impinge on political bickering…Politics is at time of elections and it cannot be allowed to permeate this whole process…There are so many things statesmanship can do.”
As Mehta and Senior Advocate Ranit Kumar referred to some “demoralising” observations by High Courts, Justice Chandrachud said: “…off-the-cuff remarks can give rise to misgivings about any individual… we, as judges, also exercise restraint. So maybe off-the-cuff remarks by a judicial officer can be avoided.”
The court fixed the next hearing on May 10 and said it will pass interim directions — the order will be out Saturday morning.
The day-long hearing also saw some lighter moments, including when Justice Chandrachud got logged out at one point due to technical issues, and a court official alerted others by saying: “It seems Justice Chandrachud has fallen off.”
As Justice Chandrachud came back online, the S-G remarked that “whoever said it used a wrong term…fallen off”. Justice Chandrachud responded: “Arrey, woh toh paramatma ke haath mein hai (Oh, that is in the hands of the Almighty).”
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