Distribution of COVID essentials like oxygen, Remdesivir| “Not substituting the jurisdiction of the High Courts”; Supreme Court explains why it intervened

Supreme Court: The 3-judge bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ has clarified that the purpose for taking the suo motu cognisance the “grim” situation of the country hit by the second wave of COVID-19 pandemic and non-availability of COVID-19 essentials was not to supplant or to substitute the judicial process which is being conducted in several High Courts across the country under Article 226 of the Constitution.

“The High Courts are well suited to make an assessment of the ground realities which prevail in each State and to find flexible solutions to deal with practical concerns of and the serious hardships faced by the citizens. Hence, there is no reason or justification to interdict the exercise of the jurisdiction of the High Courts in responding to the human problems faced by the citizens in the States and Union Territories and to find solutions with the cooperation of the authorities.”

However, in a time of national crisis, such as the one which is confronting the nation today as a consequence of the pandemic, the Supreme Court cannot stand silent as a mute spectator. This court has a constitutional duty to protect the fundamental rights traceable to Part III of the Constitution.

“The role of this Court in the present situation is complementary to the role and functions being performed by the High Courts. Neither is intended to substitute the other. Indeed, there may be certain national issues or issues of a systemic nature which have their origin beyond boundaries of a particular State. These issues which travel beyond state boundaries will require a comprehensive national approach if we are to alleviate the immense suffering caused by the pandemic. It is with the consciousness of this duty that this Court has assumed jurisdiction under Article 32 of the Constitution.”

The Court, hence, clarified that the High Courts shall not be restrained by the pendency of these proceedings in passing appropriate orders to deal with the emerging situation in each State or Union Territory concerned, as and when necessary to do so.

The Court has also asked the Central Government to apprise it on

(i) Supply of oxygen –

(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 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.

(ii) Enhancement of critical medical infrastructure, including the availability of beds, Covid treatment centres 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 centres and the modalities for admission;

(iii) 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.

(iv) Vaccination

(a) Presently two vaccinations have been made available in the country, namely, Covishield and Covaxin; (

  1. b) As of date, the vaccination programme has extended to all citizens of the age of 45 years and above;

(c) 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

(d) 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.

Panel of Medical Experts

A panel of medical experts to be nominated by the Central government to disseminate authentic information on all aspects including in regard to the steps which have to be taken for combating the pandemic. The Union of India may consider formulating modalities for ensuring due communication of advisories on a daily basis by the panel of nominated experts. This model may be replicated at the level of each State. This will ensure the dissemination of authentic information.

Amicus curiae

Senior Advocates Jaideep Gupta and Meenakshi Arora have been appointed as amicus curiae after Senior Advocate Harish Salve requested to be relieved of the nomination by the Court.

[IN RE : DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC, SUO MOTO WRIT PETITION (C) NO.3/2021, order dated 27.04.2021]


For UOI: SGI Tushar Mehta

For States: Senior Advocates Vikas Singh, Dr A M Singhvi, Niranjan Reddy, Ranjit Kumar, Rahul Mehra, Standing Counsels Rahul Chitnis and Sachin Patil

Bar Association of India: Senior Advocate Arvind P Datar and

Gujarat High Court Bar Association: Senior Advocate Yatin Oza

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