Supreme Court Directs National Policy for Hospital Admissions and Oxygen Buffer Stock: Suo Motu Writ Petition (Civil) No.3 of 2021 (30 April 2021)

Introduction

Date of the Judgment: 30 April 2021

Citation: Suo Motu Writ Petition (Civil) No.3 of 2021

Judges: Dr Dhananjaya Y Chandrachud, J, L Nageswara Rao, J, S Ravindra Bhat, J.

Can a lack of a national policy on hospital admissions exacerbate the ongoing COVID-19 crisis? The Supreme Court of India, in response to the unprecedented humanitarian crisis, initiated a suo motu writ petition to address critical issues such as oxygen supply, essential drug distribution, vaccination methods, and the declaration of lockdowns. This order highlights the court’s directives aimed at ensuring a more coordinated and equitable response to the pandemic.

The Supreme Court took suo motu cognizance of the COVID-19 crisis and issued notices to the Union of India, State Governments, and Union Territories. The court appointed Mr. Jaideep Gupta and Ms. Meenakshi Arora as Amici Curiae to assist in the matter. The bench comprised of Dr Dhananjaya Y Chandrachud, L Nageswara Rao, and S Ravindra Bhat, JJ.

Case Background

On April 22, 2021, the Supreme Court took note of the severe humanitarian crisis caused by the COVID-19 pandemic. The court issued notices to the Union of India (UOI), State Governments, and Union Territories, and also to several petitioners before various High Courts. The court sought to address the issues of oxygen supply, essential drug distribution, vaccination, and lockdown declarations.

The court directed the Central Government to report on the need for a coordinating body for resource allocation, declare essential medicines and equipment as essential commodities, and coordinate logistical support for inter-state and intra-state transportation. An Amicus Curiae was appointed to assist the court, but was later relieved and replaced by two new Amici Curiae.

The court emphasized that its jurisdiction under Article 32 does not undermine the High Courts’ jurisdiction under Article 226, acknowledging that High Courts are better positioned to address state-specific issues. However, the Supreme Court assumed jurisdiction over issues that transcend state boundaries and affect the entire nation.

The court directed the UOI and respective State/Union Territory governments to file fresh affidavits addressing the supply of oxygen, enhancement of medical infrastructure, availability of essential drugs, and vaccination programs.

Timeline:

Course of Proceedings

The Supreme Court received an affidavit dated 23 April 2021 from the UOI, and directed the UOI to file an additional affidavit. The respective governments of the States/Union Territories were also directed to file fresh affidavits on four issues. The court also appointed two new Amici Curiae, Mr Jaideep Gupta and Ms Meenakshi Arora, to assist it.

During the hearing on 30 April 2021, the Court heard submissions by Mr Tushar Mehta, learned Solicitor General of India, appearing on behalf of the Central Government. The Court also heard a presentation on oxygen supply in India by Ms Sumita Dawra, Additional Secretary, Department of Promotion of Industry and International Trade, Ministry of Commerce and Industry.

The Court clarified that the jurisdiction it assumed was to facilitate a dialogue among stakeholders and not to usurp the role of the executive and the legislature. The Court emphasized that the policy approach must be bound by the human rights framework, specifically the right to life under Article 21 and the right to equality under Article 14 of the Constitution.

Legal Framework

The Disaster Management Act, 2005 (DMA) is the primary legislation for managing disasters in India. COVID-19 falls under the definition of a “disaster” under Section 2(d) of the DMA.

Section 2(e) of the DMA defines “disaster management” as a continuous process of planning, organizing, coordinating, and implementing measures for disaster prevention, mitigation, capacity building, preparedness, response, and rehabilitation.

Section 11 of the DMA mandates the creation of a National Plan for disaster management. The National Plan includes measures for prevention, mitigation, preparedness, and the roles of different ministries. The National Plan is to be reviewed and updated annually.

Section 12 of the DMA empowers the National Disaster Management Authority (NDMA) to recommend guidelines for minimum standards of relief.

Section 35 of the DMA empowers the Central Government to take necessary measures for disaster management, including coordination with State Governments. Section 36 outlines the responsibilities of Central Government ministries and departments.

The Court noted that the National Plan, 2019, can be supplemented by additional guidelines to tackle specific aspects of disaster management, including hospital admissions and access to essential drugs and vaccines for COVID-19.

The court also referred to the judgement in Centre for Public Interest Litigation vs Union of India, where it was noted that there was no need to develop a fresh National Plan under Section 11 for COVID-19 since a National Plan was already in place.

Arguments

The Central Government submitted that it has a three-tier setup of Covid Care Centers (CCC), Dedicated COVID Health Centers (DCHC), and Dedicated COVID Hospitals (DCH). It also stated that it has increased the number of isolation beds and ICU beds since the first lockdown.

The UOI stated that it has developed an IT module for projecting expected cases and has shared these projections with the States. It also detailed the meetings conducted by various officials to address the pandemic.

The UOI argued that it has been consistently writing to the State Governments since December 4, 2020, with projections of cases, and directions to arrange necessary infrastructure. The UOI also stated that it had developed a live portal for States and districts to input data, but alleged that the data was not regularly updated.

In relation to oxygen, the Central Government submitted that it had constituted an Empowered Group -II to ensure availability of essential medical equipment and oxygen management. It also stated that it has been calculating oxygen requirements of different states based on active cases and doubling rates.

The UOI stated that it has been taking steps to augment the supply of oxygen, including issuing licenses to industrial gas manufacturers, enhancing production of Liquid Medical Oxygen (LMO) in steel plants, restricting industrial use of oxygen, augmenting the availability of tankers, commissioning Pressure Swing Absorption (PSA) plants, importing medical oxygen, and augmenting the availability of cylinders.

On vaccines, the Central Government stated that it has constituted a National Expert Group on Vaccine Administration for COVID-19 (NEGVAC). It also stated that it has rolled out a revised strategy of COVID-19 vaccination for all persons over 18 years of age, with effect from 1 May 2021. The UOI stated that under this revised strategy, the State Governments and private hospitals are to procure 50% of the vaccines.

The UOI also stated that the liberty to decide prices on an arm’s length basis between the State Government and hospitals is based on the concept of creating an incentivized demand for the private vaccine manufacturers.

The Central Government also submitted that it is taking steps to augment the production of Remdesivir and has revised the maximum retail price of a 100 mg/vial of Remdesivir to Rs 3500.

The Central Government also submitted that Tociluzumab is manufactured by a Swiss company and India is completely dependent on imports for this drug.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues:

• Supply of oxygen – The Court should be apprised by the Union of India on:
  • The projected demand for oxygen in the country at the present point of time and in the foreseeable future;
  • The steps taken and proposed to augment the availability of oxygen, meeting both the current and projected requirements;
  • The monitoring mechanism for ensuring the supply of oxygen, particularly to critically affected States and Union Territories as well as the other areas;
  • The basis on which allocation of oxygen is being made from the central pool; and
  • The methodology adopted for ensuring that the requirements of the States are communicated to the Central Government on a daily basis so as to ensure that the availability of oxygen is commensurate with the need of each State or, as the case may be, Union Territory.
• Enhancement of critical medical infrastructure, including the availability of beds, Covid treatment centers with duly equipped medical personnel on the basis of the projected requirement of healthcare professionals and anticipated requirements. The Union government will consider framing a policy specifying the standards and norms to be observed for admitting patients to hospitals and covid centers and the modalities for admission;
• The steps taken to ensure due availability of essential drugs, including Remdesivir and Favipiravir among other prescribed drugs and the modalities which have been set up for controlling prices of essential drugs, for preventing hoarding and for ensuring proper communication of the requirements at the level of each District by the District health authorities or Collectors to the Health Departments of the States and thereafter by the states to the Union Ministry of Health and Family Welfare so that the projected requirements are duly met and effectively monitored on a daily basis.
• Vaccination:
  • Presently two vaccinations have been made available in the country, namely, Covishield and Covaxin;
  • As of date, the vaccination programme has extended to all citizens of the age of 45 years and above;
  • From 1 May 2021, the vaccination programme is to be opened up also to persons between the age groups of 18 to 45, in addition to the existing age group categories. The Union of India shall clarify (i) the projected requirement of vaccines as a result of the enhancement of coverage; (ii) the modalities proposed for ensuring that the deficit in the availability of vaccines is met; (iii) steps proposed for enhancement of vaccine availability by sourcing stocks from within and outside the country; (iv) modalities for administering the vaccines to meet the requirements of those in the older age group (forty five and above) who have already received the first dose; (v) modalities fixed for administering the vaccine to meet the additional demand of the 18 -45 population; (vi) how the supplies of vaccines will be allocated between various states if each state is to negotiate with vaccine producers; and (vii) steps taken and proposed for ensuring the procurement of other vaccines apart from Covishield and Covaxin and the time frame for implementation; and
  • The basis and rationale which has been adopted by the Union government in regard to the pricing of vaccines. The government shall explain the rationale for differential pricing in regard to vaccines sourced by the Union government on one hand and the states on the other hand when both sources lead to the distribution of vaccines to citizens.

Treatment of the Issue by the Court

Authorities

Judgment

What weighed in the mind of the Court?

The Supreme Court was primarily concerned with the immediate need to address the humanitarian crisis caused by the COVID-19 pandemic. The court emphasized the importance of ensuring the right to life and equality under Articles 21 and 14 of the Constitution. The court was also concerned about the lack of a coordinated national response and the disparities in access to essential resources such as oxygen, hospital beds, and vaccines.

The Court was also concerned about the clampdown on information sharing on social media, which it viewed as an important tool in combating public tragedies. The Court also emphasized the importance of creating a “collective public memory” of the pandemic.

The Court considered alternative interpretations and justifications provided by the Central Government, but ultimately prioritized the need for a coordinated national response and the protection of fundamental rights. The Court rejected the argument that State Governments should procure 50% of the vaccines, stating that this would lead to chaos and uncertainty.

The Court also rejected the argument that differential pricing of vaccines was justified, stating that allcitizens should be treated equally.

Ratio Decidendi

The ratio decidendi of this case is that during a national crisis like the COVID-19 pandemic, the Central Government has a constitutional obligation to ensure a coordinated and equitable distribution of essential resources, including oxygen, hospital beds, and vaccines. The court emphasized that the right to life and equality under Articles 21 and 14 of the Constitution cannot be compromised.

The Court also held that the Central Government has a duty to formulate a national policy on hospital admissions to ensure that no patient is denied treatment due to lack of local residential proof or identity proof. The Court also held that the Central Government has a duty to ensure that all citizens have equal access to vaccines, regardless of their location or economic status.

The Court further held that the Central Government has a duty to ensure that there is no clampdown on information sharing, as freedom of information is essential for preventing public tragedies.

Obiter Dicta

The Court made several obiter dicta, including the observation that the State Governments should not be left to negotiate with vaccine manufacturers on their own, as this would lead to chaos and uncertainty. The Court also observed that the Central Government should consider invoking its statutory powers under the Drugs Price Control Order, 2013, to fix the prices of essential drugs.

The Court also observed that the Central and State Governments should not use their powers to suppress dissent or criticism, as freedom of speech is essential for a healthy democracy. The Court also observed that it is important to create a “collective public memory” of the pandemic, so that lessons can be learned for the future.

Conclusion

The Supreme Court’s order in this suo motu writ petition was a landmark intervention in the management of the COVID-19 pandemic. The court’s directives on oxygen supply, hospital admissions, and vaccine distribution had a significant impact on the government’s response to the crisis. The Court’s emphasis on the right to life and equality, and the importance of freedom of information, were crucial in ensuring a more coordinated and equitable response to the pandemic.

The Court’s order also highlighted the importance of a national policy framework for disaster management, and the need for the Central Government to take a proactive role in ensuring that all citizens have access to essential resources. The Court’s intervention was not intended to usurp the role of the executive or legislature, but to ensure that the government’s actions were in line with the Constitution and the fundamental rights of citizens.