The Supreme Court on Friday came down hard on the Union government on matters related to the procurement of oxygen, the phase 3 vaccine policy, differential pricing of vaccines and more. The bench, comprising Justices DY Chandrachud, Nageswara Rao and Ravindra Bhat were hearing a suo motu case pertaining to the distribution of essential services and supplies during the pandemic.
The SC said that the clamp down on COVID-19 information will be treated as contempt of court, and that a direction will be issued to DGPs in this regard. The court told the Union government there should be free flow of information, and said it should hear voices of citizens. Further, it said there should not be any presumption that grievances raised on the internet by citizens are false.
Moving onto the vaccine policy, Justice Chandrachud asked how the Union government will ensure that people are registered to obtain the vaccine. The government has mandated that everyone has to register on the COWIN app and book a slot to get a vaccine. He questioned how people who are illiterate or don’t have access to the internet will book a slot.
One of the changes in phase 3 of the vaccine policy was that 50% of the vaccines produced by companies would go to the Union government, and the rest to states and the open market. While the Union government has placed an order at Rs 150 per dose with the Serum Institute of India (SII) for Covishield, SII will be charging Rs 300 per dose for state governments and Rs 600 for the open market. For Bharat Biotech’s Covaxin, the rates are Rs 400 for state governments and Rs 1,200 for private hospitals.
The bench added that vaccine manufacturing is publicly funded, and therefore, vaccines become public goods. The court asked why the Union government doesn’t procure 100% of the vaccines “since it is the best place to determine equity and disburse”. It questioned why it wasn’t being procured on the model of the national immunisation programme so that there is no difference in pricing. “Ultimately, it is for the citizens of the country,” Justice Chandrachud said.
“Why can’t we follow the national immunisation program policy and procurement is centralised but distribution be decentralised,” he asked, according to Bar and Bench. Poor people will not be able to pay for vaccines, he said.
Reiterating that a national immunisation policy must be followed, Justice Chandrachud flagged concerns about exclusion of SC/STs and the disenfranchised from vaccination coverage.
“How much of investments has the Union government made into vaccine companies and given advances in the last one year? What has been the financial contribution by the Union govt in research, etc in development of vaccines?” he further questioned, according to News18.
The bench also pressed the government about questions of equity, and asked if one state will get priority over another in getting the vaccine, and how the Union government will ensure equity when it is only purchasing half the doses.
Private vaccine manufacturers cannot be allowed to decide which state should get how much, the court said.
"Dont leave it to the manufacturers. How will they determine equity? Invoke your powers to see that additional facilities are created for vaccine manufacturing,” Justice Chandrachud told Solicitor General Tushar Mehta, according to LiveLaw.
Justice Bhat told the Solicitor General that his affidavit to the court states that there are 10 PSUs who can manufacture vaccines, for which they can obtain licences through the patent controller.
“Rs 4,500 crore was given to these vaccine manufacturers. We don't know what was the grant,” Justice Bhat said, referring to the supply credit to SII and Bharat Biotech.
“Manufacturers are charging you Rs 150 but charging Rs 300 or Rs 400 for states. Why should we as a nation pay this — the price difference becomes Rs 30,000 to 40,000 crore. No point for price difference. We are not directing it but you should look into it,” he said.
On the shortage of drugs such as Remdesivir, the court further reportedly asked if the Union government considered invoking Section 92 of the Patents Act to grant compulsory licenses in the face of emergency. It asked why it should not issue directions to enable generics to manufacture drugs for COVID-19 without the fear of legal action, according to LiveLaw.
The Supreme Court also asked if pricing is being regulated for those being admitted. “How is the Centre trying to regulate the high cost being charged to admit and treat COVID patients? Is it left to states to determine the charges?” the court asked, reported LiveLaw.
Justice Chandrachud further questioned what the Union government is doing to ensure facilities for states that are not able to keep up. He also questioned the Centre about temporary treatment centres, guidelines for the same, what is being done for shortage of medical staff, how doctors are being safeguarded and how they are treated if they contract COVID-19.
The court observed that even doctors and healthcare workers are not getting beds, and that the situation is grim. It said hostels, temples, churches and other places can be opened for converting them as COVID care centres.
“We agree that the health infrastructure we inherited over the past 70 years is not adequate,” says SC. The SC said the healthcare sector has come to a breaking point and retired doctors or officials could be re-employed.
For oxygen supply, the court reportedly asked if there is a mechanism to display supply, and asked if one can be developed to show real-time updates on allocation so that there can be a check on which hospital has how much oxygen.