Case BriefsCOVID 19High Courts

Kerala High Court: Finding it shocking and unbelievable that were 278 attacks against Doctors, Nurses and Healthcare Workers in the State of Kerala, the Division Bench of Devan Ramachandran and Kauser Edappagath, JJ., stated that,

“The attacks on Health Care Workers or an attempt to intimidate or threaten them, for whatever be the reason can never be condoned or tolerated.”

Pursuant to frequent incidents of violence against medical practitioners in the State of Kerala and various orders of the Court, the State government had proposed following suggestions:

“1. CCTV should be installed in all hospitals, initially and a feed shall be given to Police AID Post

  1. At the institution level, security in charge officer to be nominated by the Superintendent of Hospital.
  2. The paramedical staff and others to be given security related training by coordinating with the Superintendent of the Hospital.
  3. All further appointments of security personnel, especially for Casualty and Out Patient Department (OPD) areas shall only be from Ex-Serviceman Society/organizations.”

Noticeably, around 278 cases had been registered under the provisions of the Kerala Health Care Service Persons and Health Care Service Institutions (Prevention of Violence and Damage to Property) Act, 2012 of which 232 of such cases had been charge-sheeted and 28 were under investigation.

The Indian Medical Association and Association of Private Medical Hospitals submitted that, in spite of the earnest efforts taken by the Government instances of attacks on Doctors and Nurses are still continuing, mainly because of the delay in investigation and conclusion of the proceedings on the crimes registered; and also because the Police are often lax in responding to their plea for assistance or protection. It was also submitted that sometimes certain vexatious messages in the social media give rise to misunderstanding on the working of a particular hospital, which leads to untoward incidents, but that the Police are slow in responding to it.

Noticing that there was nothing on record to suggest whether steps had already been implemented, apart from saying that they had been proposed, the Bench stated that all the steps which we have extracted above, require to be effectively implemented. Opining that it is only sensitization and education that the citizens be made aware that their actions against Doctors and Nurses would invite penal consequences under the provisions of the Act would ease the situation, the Bench said,

“we have not come across any public messages or news releases from the side of the Government informing the public that such attacks would attract very severe penalties the Government to ensure that the provisions of the Act are made known to the public at large, including by giving publicity in the premises of the hospitals and also by giving it good circulation through the Mainline and Online media.”

Hence, the State Police Chief was directed to ensure that necessary instructions are given to all the Station House Officers to react swiftly and quickly in case of any complaint being made to them by the hospitals and make adequate arrangements for disseminating information about penal consequences of violence against medical practitioners.

Additionally, on being informed that the Government had brought out an order (G.O (Rt)No.1750/2021/H&FWD) dated 16-08-2021, whereby certain fees and charges were prescribed for treatment of patients suffering from “post COVID complications”; the Bench asked the government to explain the necessity for having issued the order, particularly when post COVID complications – by its very nature – indicate problems that arises out of COVID-19 infections. [Kerala Private Hospitals Association v. State of Kerala, RP No. 379 of 2021, decided on 09-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For The Petitioners: Syam Divan (Senior Advocate) along with K. Anand, Advocates

For State Of Kerala: Advocate General & Government Pleader

For Union of India: P. Vijayakumar, Assistant Solicitor General of India

For Indian Medical Association (IMA): S. Gopakumaran Nair (Senior Advocate) along with Sri.Suraj T.Elenjikkal,

For Private Medical Practitioners Association: M/S.M.Gopikrishnan Nambiar, K.John Mathai, Joson Manavalan, Kuryan Thomas, Paulose C. Abraham & Raja Kannan,

For State Police Chief: M. Ajay, Sri.S. Kannan, Senior Government Pleader

Interviews

Ms Ashima Gulati, a law graduate (2016) from National Law Institute University (NLIU), Bhopal. Right after her law school she started working as an Associate in the Securities, Capital Markets, and Corporate Group at Khaitan & Co., Mumbai but discontinued in 2019 to switch her career path. She is currently a teaching fellow at Teach for India and also an impact fellow at Global Governance Initiative. She is also a co-founder of #HumHongeKaamayaab, an initiative that works for Covid-19 vaccination in India. She has been nominated for India’s COVID Soldier award, organised by The Better IndiaIn this conversation, she talks about the world for law graduates which lie beyond the corporate sector.

She has been interviewed by Vranda Agarwal, Campus Ambassador for National Law Institute University, Bhopal.

I. Can you please introduce yourself and give us a glimpse of your law school journey?

My name is Ashima Gulati, and I was born and brought up in Punjab. I am a first-generation lawyer, and one of the few students from my city at the time who have appeared in and cracked CLAT.

Since my first year itself, I was certain that I would participate in all kinds of co-curricular and extra-curricular activities that were present to understand my own interests, likes and dislikes. This led me to participate in various moot court, debate, arbitration and negotiation competitions and sports and cultural events. I developed a keen interest in moot court competitions, particularly international law, and participated and did reasonably well at Philip C. Jessup Moot Court Competition, amongst others. I also ensured that such activities do not overshadow my academic learning. During my law college, I have interned at law firms, an NGO and a lawyer’s chamber. Such a diverse experience guided me in leveraging my strengths and working upon my weaknesses. I made an informed decision of pursuing a career at a law firm, and worked on my knowledge and skill set accordingly.

I am a sports enthusiast and was the first female co-convenor of the sports society of my university. Further, I have also held positions of responsibilities in other societies in the university, including heading the IPR society in my final year. It has been 5 years since I graduated from NLIU, Bhopal, and I cherish and reminisce my five years spent at the university with utmost happiness and hope to visit it soon.

II. Please tell us about the journey that began once the glittery college life ended. Looking at your career trajectory, you have tried and tested, experimented with varied career roles. How did you navigate through them?

In my 4th year, I got a pre-placement offer (PPO) at the Mumbai office of Khaitan & Co., which was a good milestone to achieve as a student. I worked in its securities and capital markets team for almost 3 years, and gained a great sense of accomplishment and experience at that stage of my life. However, my quest for upskilling and problem solving made me inquisitive to look beyond a corporate job. After quitting Khaitan & Co., I took time off to comprehend my KSMs and identify career opportunities which would be able to nurture and hone my skills better. In the meantime, I ensured to acquire as much knowledge as I could about foreign policy, international development, public policy, and enrolled myself in various learning courses. I also utilised my break in applying the acquired knowledge by participating in various workshops and conferences. Such an investment helped me gauge my natural inclination towards impact sector, and thereby I applied for the prestigious Teach for India Fellowship. I was fortunate to have been accepted into one of the most challenging and life-changing fellowships that any organisation has to offer. I am currently in my second year of the fellowship, and I am already working towards my next career move in the impact sector.

I believe it is human nature to get extremely comfortable in a phase and to then just be tied up in your own comfortable zone. It takes a lot of courage and confidence to break such barriers and to take the risk of being in a zone of unknown. I would say my courage and support from my family and friends has helped me navigate through every decision I have made in my career, and having a sense of ownership to my own mistakes has strengthened my confidence to navigate through such a career transition.

III. How has your experience with Khaitan & Co. shaped you and please share the highs and lows during your tenure?

During my time at Khaitan & Co., I was fortunate to be involved in a diverse range of market deals and securities products. The deals varied from public deals to private deals, and involved well-known and reputed corporate brands in India and abroad, with unique and complex issues to be addressed. I have had a great learning experience working at Khaitan & Co., and my work ethics have grown and strengthened during my tenure.

IV. Please tell us about the switch that you made from a completely different field of securities and capital markets to the impact sector. What was the motivation behind it and what all hardships did you face with this decision?

The decision to transition from capital markets to impact sector did not happen overnight for me. I have taken a number of steps before making an informed decision of switching my career path. After quitting Khaitan & Co. in 2019, I took a work break before diving into another law firm job. I utilised this break to not just relax and rejuvenate but also to catch up on my other interests, including painting and reading. I thoroughly enjoy reading news. I believe such interests motivated me to acquire more knowledge and perspective about emerging career paths. Over the course of few months, I was learning about foreign policy, international development and public policy, and was really enjoying working on case studies for building my problem-solving skill set. I would say one thing led to the other, and I ended up realising that I am interested in learning and working in the impact sector, and I believed that I weighed in my options before making a career switch. It was definitely a challenging decision to make in light of my comfort at a law firm and its perks however, it was a decision that made a lot of sense to me. It was difficult for my friends and family members to understand the rationale behind the career change but given it was an informed decision that I was making, they supported me throughout. It has been more than 1 year since I have transitioned to impact sector, and I am challenged with different issues almost every day, which requires a combination of skills and values, including research, problem solving, courage and compassion.

V. Many students face a sort of unsaid pressure to join corporate firms during their law school and are often skeptical about the alternate career paths that might on the face seem challenging. How to avoid this dilemma?

I believe every career path has its own advantages and disadvantages. Sometimes, as a young student, we tend to give in to the most common career choice amongst our peers for a number of reasons. It is perfectly fine to make a career decision based upon your comfort or that you do  not want to explore the unknown territory. I believe it is a matter of choice and one should make an informed decision in making that choice. I would say to weigh in pros and cons before making any such decision, and to identify the exact cause or reason for making a choice. Once you are certain that you have a reason for following a career path and not just an illusion or peer pressure, you would be much more comfortable with the decision that you make vis-à-vis your career. It is not necessary that the reason for joining a law firm or other career option would make sense to another person but it should make sense to you. It is also important to understand that choices can change anytime. You can start working in one career path and transition into another after sometime. All that is important is that you have made an informed decision and not just followed someone’s career decisions blindly.

VI. Since you are working with the impact sector which is known for its challenging construct. How did you overcome these challenges and hardships? Also, please tell us how the law has helped you move ahead in this journey.

During the initial months of my fellowship at Teach for India, every day would bring a new issue for one or the other families of my students. The issues would be either financial, physical or emotional in nature. I have had check-ins with the families, where the elders have had breakdowns due to the obstacles they were facing in life. Suddenly from a very comfortable law firm job, I found myself in extremely difficult and sensitive situations. I believe my understanding of my own strengths and limitations has helped me in each of such sensitive moments. I grew up from reacting to such issues to responding to such problems. I strongly believe in the power of collective action and strategic thinking, and I would say that such skill and mindsets helped in finding my footing in the impact sector and to rise to the never-ending challenges. Legal education has empowered me in building and honing such skills, in addition to building up my knowledge to address such issues. The work ethics and learnings from my tenure at Khaitan & Co. has supported me to perform better in a more effective and efficient manner. I believe if I am able to perform well now, credit is to also be given to my earlier experiences and learnings at law school and Khaitan & Co.

VIII. Your passion to work for the under-resourced community is evident through the various projects like #HumHongeKaamayaab and legal education awareness projects that you are working on. Please share your experiences with the community. Law as a subject is very closely linked to society at large, what would be your suggestion for all the young lawyers who are passionate to work for the underprivileged. What can be the possible contributions even without taking it up as a full-time career?

I started my Teach for India Fellowship in July 2020, right in the middle of the pandemic and lockdown restrictions. The pandemic exposed the actual depth of inequity and divide that exists in India between the different economic brackets of citizens. With the imposition of lockdown in India, we saw an exodus of migrant workers along with their children from smart cities to villages on foot. The immediate need for a greater percentage of students in India was to secure safe shelter and constant supply of food. Regardless, we saw a sudden and immediate shift in education policies towards digital/virtual learning, with the assumption that each student in our country has access to a smartphone or an uninterrupted access to internet. What appeared to be an easy reality of learning for a few was indeed a far-fetched dream for the majority of students in India. My students who have migrated and/or have survived the lockdown restrictions with a daunting fear of lack of food needed more than the basic construct of education. The students from better economic brackets have received enhanced learning during this time whereas, for the majority of our students, we have experienced a setback in their learning, development and growth. The lockdown restrictions, though a necessary evil, has created an emotional damage to our students, which sought our immediate attention. My first few months as a fellow were invested in collecting data about my students, their families and their well-being. Through Teach for India and additional support, I have been able to ensure each of my students have an access to a smartphone with monthly internet recharges, and ration supply as well. During the lockdown, I was also personally involved in securing and negotiating rental arrangements for the families. I have also been able to search for and provide for various job opportunities to the family members of the students affected by the pandemic and lockdown restrictions. With the support of my legal peers, I have assisted a few families in their legal disputes as well. All of such efforts are in addition to my working as a teaching fellow to my 60+ students, for whom I am deeply motivated and invested in ensuring that each one of them receives excellent education resulting in their holistic development.

I also work for the community at large, and have initiated a number of welfare projects aimed at creating awareness and providing access to the welfare schemes and policies. One of such projects is #HumHongeKaamayaab which was made public on 29-4-2021 with a clear aim of getting 100% Covid-19 vaccination amongst under-resourced communities in India. In the last few months, we have been able to reach out to more than 19,000 individuals by creating and spreading Covid-19 vaccination awareness, and have assisted more than 500 individuals in the vaccination process. Additionally, we have successfully vaccinated more than 200 individuals. We have recently adopted a new working model to organise medical expert sessions for our NGO partners. In the month of August alone, we have trained over 1500 individuals across PAN India, who shall further train and counsel local communities to get Covid-19 vaccination. I am humbled with the support #HumHongeKaamayaab has received in the last 3.5 months from civil society organisations and individuals. We have officially partnered with over 15 partners operating in States PAN India. It was truly gratifying to see #HumHongeKaamayaab being featured in Max India Foundation’s April-June Newsletter.

I have also started a legal education awareness project with the aim of creating awareness about legal education and law as a career option for the students belonging to under-resourced communities in India. As a lawyer, I believe it is my duty to create awareness about the benefits that legal education has to offer, and to work towards ensuring inclusive education for all.

I believe that knowledge and information are essential means to ensuring equity, and legal education plays an important role in providing access to such knowledge and information. There are various career paths that a law graduate can undertake if one is passionate about working in the social sector, such as practising litigation for marginalised and vulnerable sections of the society, consulting for the Government and NGOs in policy and implementation sector, working in an NGO or a social enterprise, amongst others. If one is unable to dedicate full time then volunteer options are always available at NGOs and social enterprises, wherein one can work accordingly to their availability. During the second wave, we saw a number of student led projects and organisations work in providing Covid-19 relief, and I believe we all have the will and motivation to work for the society. I believe that my legal education and work experience has always been an advantage for me in comprehending and working through my new career path.

IX. Any message that you would like to share with all those struggling with career decisions.

I believe it is essential to trust your own gut when it comes to making career decisions. It is a good practice to take career advice and learn from others mistakes but it is all very subjective. What works for others might not work for you and may not even be the best thing for you. I would rather suggest to research about each of the career paths that interests you in terms of comparable measures, and to also identify your weaknesses and strengths and evaluate how well does your attributes work in a given career path. Whatever career path that you choose, just ensure that you have made an informed decision and not just blindly followed the common trend.

I also want to emphasise on the point that one can change a career choice at any stage of life so, let us not overburden and overwhelm the young students to make life decisions at the start of their careers. It is okay to not know which career decision is better for you at the start of your career. This is a lifelong decision, which will keep on evolving at different life stages, so just take an informed decision and enjoy the work that you do.

COVID 19Legislation UpdatesNotifications

The Director General of Foreign Trade, Ministry of Commerce and Industry has provided the procedure and criteria for applying for export of Covid-19 Rapid Antigen Testing kits notified vide circular dated August 17, 2021. Through circular dated August 16, 2021, DGFT had restricted the export of COVID-19 Rapid antigen test kits [Read our previous story HERE]. Now, the quota for export of Covid-19 Rapid Antigen Testing kits during July, August & September has been fixed to be 1176 lakh kits.

The online applications for export of Covid-19 Rapid Antigen Testing kits shall be submitted between August 20, 2021 and August 30, 2021. The validity of export license will be for 6 months only.

 


*Tanvi Singh, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a postscript to its 188-pages long judgment in Ajit Mohan v. Delhi Legislative Assembly (wherein it was held that representatives of Facebook will have to appear before the Committee constituted by Delhi Legislative Assembly for looking into Facebook’s role in aggravating Delhi Riots which broke out last year), the 3-Judge Bench of Sanjay Kishan Kaul, Dinesh Maheshwari, and Hrishikesh Roy, JJ. stressed upon the need for timely disposal of cases. The way forward, in dealing with the likely post-COVID surge in number of cases pending adjudication, was also discussed.

The Court said that the purpose of the postscript was only to start a discussion among the legal fraternity by bringing to notice the importance of succinctly framed written synopsis in advance, and the same being adhered to in course of oral arguments to be addressed over a limited time period and more crisp, clear and precise judgments so that the common man can understand what is the law being laid down.

The Court expressed that COVID times have been difficult. The judiciary and the bar are no exception. It was noted that this was a contributing factor in there being a period of four months between reserving the judgment and pronouncing the order in the Ajit Mohan case. But this was not the only reason. The “saga of hearing” lasted 26 hours ─ which the Court said is “a lot of judicial time”. Daily time period was recorded. Apart from pleadings, there were written synopses, additional written synopses, rejoinders and replies filed liberally by both parties. The convenience compilations themselves were very voluminous, in contradiction to their very purpose.

Concern of the Court was if this is how the proceedings will go on in the future, “it will be very difficult to deal with the post-COVID period, which is likely to see a surge in the number of cases pending adjudication”. The Court then discussed “the way forward”.

Clarity in Thought Process

The Court said it believes that there needs to be clarity in the thought process on what is to be addressed before the Court. Counsels must be clear on the contours of their submissions from the very inception of the arguments. This should be submitted as a brief synopsis by both sides “and then strictly adhered to”.

Restriction on Time Period for Oral Submissions

The Court said that much as the legal fraternity would not want, restriction of the time period for oral submissions is an aspect that must be brought into force.

Instead of restricting oral arguments it has become a competing arena of who gets to argue for the longest time.

Looking into this aspect, the Court then referred to a few international best practices including Article 6 of the European Convention on Human Rights ─ which while recognising the right of fair trial and public hearing, qualifies it inter alia to be completed “within a reasonable time”. This is intrinsically linked to administering justice without delays.

The Court said that delay in judicial proceedings has been the bane of our country and there cannot be a refusal to part ways from old practices especially when they have outlived their purpose. It is the litigants who bear the costs of our complex and prolonged adjudicatory process.

Clear and Short Judgments

The Court was conscious of the “equal responsibility of this side of the bench”. “It is the need of the hour to write clear and short judgments which the litigant can understand”, the Court said. It was advised that:

The Wren & Martin principles of precis writing must be adopted.”  

But then, the Court was perplexed, as to how this is to be achieved if the submissions itself go on for hours on end with vast amounts of material being placed before the Court; with the expectation that each aspect would be dealt with in detail failing which review applications will be filed.

Use of Judicial Precedents

The Court noted that it is weighed down by judicial precedent. Often a reference is made to the judgment of the Privy Council or the earlier years of the Supreme Court which saw short and crisp judgments, but then the volume of precedents the Court faces today was not present then. In today’s technological age, all that is required is to instruct the junior counsel to take out all judgments on a particular point of view and submit it to the Court in a nice spiral binding. On every aspect, there may be multiple judgments.

The Court was of the opinion that if the proposition of law is not doubted by the Court, it does not need a precedent unless asked for. If a question is raised about a legal proposition, the judgment must be relatable to that proposition ─ and not multiple judgments. The other scenario is if the facts of the cited judgments are so apposite to the facts of the case that it could act as a guiding principle.

The contribution to the development of law can be nurtured by comprehensible precedent. There may be times when the complexity of matters gives rise to complex opinions. But the judgments are becoming more complex and verbose only on account of large number of precedents cited and the necessity to deal with them and not merely refer to them as is done in other countries.

Case Management

The Court recorded that case management has been discussed for long, but seldom is it followed in its true letter and spirit. This may possibly be because of the large volumes of cases, but then this is all the more reason for better management.

Referring to the US Supreme Court,  it was noted that there the norms and the traditions take care of the requirement of restrictive time frames to address submissions; which are preceded by the contours of arguments given in the written synopsis and the material sought to be relied upon.

The Court did not doubt that lawyers think on their feet but then, the Court said:

[G]iven the current milieu, there has to be clarity before the lawyers get on their feet keeping a little leeway in mind for something which may evolve during the arguments.

As of 1-5-2021, the Supreme Court of India had 67,898 pending matters. The Court expressed that the time spent on routine matters leaves little time to settle legal principles pending before larger Benches that may have an impact down the line on the judicial system.

Interim Proceedings

While concluding, the Court noted that another matter of concern is prolonged interim proceedings. In criminal matters, even bail matters are being argued for hours together and at multiple levels. The position is no different in civil proceedings where considerable time is spent at an interim stage when the objective should be only to safeguard the rights of the parties by a short order, and spend the time on the substantive proceedings instead which could bring an end to the lis rather than on the interim arrangement. In fact, interim orders in civil proceedings are of no precedential value. It was noted by the Court that this is the reason it is said that:

[W]e have become courts of interim proceedings where final proceedings conclude after ages ─ only for another round to start in civil proceedings of execution.

The Court ended by stating that by this post script it intended to start a discussion among the legal fraternity on the issues touched upon. [Ajit Mohan v. Delhi Legislative Assembly, 2021 SCC OnLine SC 456, decided on 8-7-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.


Case BriefsCOVID 19High Courts

Gauhati High Court: In a case related to the availability of oxygen and vaccination in the State of Nagaland the Division Bench comprising of Songkhupchung Serto and S. Hukato Swu, JJ., directed the state government to ramp up vaccination status for the health workers, Shopkeepers and vegetable vendors, journalists and judicial fraternity. The Bench remarked,

“They (health workers) are the people who are delivering the health service to the people; in case they are infected they will be the ones who will be spreading the virus to others.”

Considering the submissions made by Union and State counsels the Court was of the view that though vaccination is going on, availability of the vaccine is far short of the number of people that needs to be vaccinated in the State. The Bench stated that if the State has to fight the Covid war effectively and prevent the 3rd wave coming and causing so much suffering as the 2nd wave had done, the only way is ramping up vaccination and complete the same at the earliest. The Bench reminded the government that,

“The 3rd wave might be just standing at the door if vaccination is not done with speed and proper Covid behaviours are not followed.”

Therefore, directions were issued to the State and the Central Government to do all possible at their command to make the required number of doses of vaccination available in time so that vaccination could be carried out with speed and be completed at least within 3 months. Hence, the Health Department and State government were directed to come up with instructions to make the required number of doses of vaccine available within 3 months.

Noticing that nothing substantial had been done by the State with regard to Court’s order regarding vaccination of Shopkeepers and vegetable vendors since they are vulnerable section of the society who are also potential spreader of the virus due to the nature of their profession, the Bench warned the State government to take some pragmatic steps so that priority is given to these groups of people at the earliest. Concerning the health workers, the data submitted before the Court suggested that out of 25,000 plus only 15,000 plus had taken the vaccination and out of that 10,000 plus had taken their 2nd dose. Finding these figures concerning because these they are the people who are delivering the health service to the people, the Bench stated that in case they are infected they will be the ones who will be spreading the virus to others. The Bench further stated,

“We are aware of the fact that nobody can be forced to take vaccine unless they volunteer. However, the authorities should make sure that these health workers, in case they do not volunteer to take the vaccine, produce their testing certificate as and when they report for duties.”

The District Task Force was also directed to ensure that private hospitals also follow the same directions. Appreciating that vaccination camps had been organized at Secretariat and Directorate level regarding other Government servants, the Bench cautioned the Government and authorities concerned that no such camp had been organized the judicial fraternity.

Acknowledging the nature of work with regard to the journalist community, the Bench also directed that a special camp should also be organized for them.  Lastly, the Bench remarked, “since no one knows as to when this war against Covid will end, the Government should come up with some pragmatic plan so that office works are not affected for such a long time.”

[Kohima, In re., PIL (Suo Moto) 1 of 2021, decided on 30-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Amicus Curiae: Mr. Taka Masa

Counsel for the State: Mr. K. Sema, Addl. Sr. Advocate General

Counsel for the Health Department: Mr. N. Mozhui

Counsel for Union of India: Ms. Akhala, ASGI

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

The National Human Rights Commission,  India has taken cognizance of a complainant that the mass gatherings of protesting farmers, flouting Covid appropriate behaviour, are against the very rules/norms laid down by the Central Government and the advisory of the Commission itself as safeguards against the pandemic. Allegedly, the situation is likely to worsen day by day due to the increased inflow of the farmers at the sites of protests: they are not only putting their lives at risk but also posing a risk, as the potential carriers of the virus, to the others in the rural areas.

Accordingly, the Commission has issued notices to the Chief Secretaries of NCT of Delhi, Haryana and Uttar Pradesh to submit action taken reports regarding the steps taken to control the spread of Covid-19 infection at the protest sites of the farmers. The report is to be submitted within four weeks.

Issuing the notices, the Commission has observed that the country is passing through an unprecedented and scary second wave of Covid-19, which has already claimed more than three lakh human lives and is still raging virulently in different parts of the country.

It has further observed that the Central and State Governments are struggling against all odds to save lives in the face of inadequate health facilities. Measures like lockdowns, containment zones and Covid protocols are employed to somehow overpower the deadly Covid, which is now leading to other serious diseases like black fungus, white fungus etc. In these extraordinary circumstances, our sole aim has to be saving human lives.

The complainant has also stated that more than 300 farmers have died during this ongoing protests due to several reasons including Covid infections. The Cases of black fungus etc are also rising. He has sought intervention of the Commission apprehending that situation may become more worrisome as the farmers, in large numbers, are planning for observing 26th May, 2021 as the Black Day.


National Human Rights Commission

[Press Release dt. 25-05-2021]

Case BriefsHigh Courts

Rajasthan High Court: The Division Bench of Sandeep Mehta and Devendra Kachhawaha, JJ., dismissed an application which was filed for temporary suspension of sentences on behalf of the infamous convict appellant Asharam, aged about 83 years.

The applicant-appellant was also facing trial in another case at Gujarat involving the offence under Section 376, Penal Code 1860 and was in custody in connection with the said case as well. He got infected by COVID-19 Virus while suffering Life Imprisonment at the Central Jail, Jodhpur and as a measure to provide treatment, he was shifted to the M.D.M. Hospital, Jodhpur. Since the health status of the convict appellant was not improving at the M.D.M. Hospital, he was shifted to the All India Institute of Medical Sciences (AIIMS), Jodhpur where he was provided complete treatment for COVID-19 infection as per protocol. In the intervening period, the appellant developed internal gastrointestinal bleeding as a result whereof, his haemoglobin dropped to critically low level and accordingly, he was provided treatment for the said disorder including blood transfusion, etc. Later on, as per the conclusion of the treating doctors at the AIIMS, Jodhpur, the condition of the applicant-appellant was stable and he was fit for discharge.

Counsel for the petitioner, Mr J.S. Choudhary, Sr. Advocate with Mr Pradeep Choudhary submitted that convict had expressed his desire in writing that he does not desire to take the allopathic line of treatment and instead, his followers may be allowed to set up a fully functional medical facility at his Ashram at Pal Village, Jodhpur so that he can be treated by Ayurveda and for the reason which if the sentences awarded to the appellant are suspended, he and his followers are ready and willing to abide by any condition which may be imposed by the Court.

The Court observed that there was no certificate/ opinion of the doctors that the ailments with which, the convict appellant was afflicted, can be treated by Ayurveda. The Court further observed that suspending the sentences awarded to the appellant in this case would be nothing short of an exercise in futility because immediately on his release from the Central Jail, Jodhpur, he would be required to be taken to State of Gujarat in connection with the case pending trial as a production warrant certainly would be in force.

The Court dismissed the application and held that the prayer is not tenable as the Court was cognizant of the fact that whenever the convict has been taken out from prison even for attending the dates of hearing during trial, his followers form huge congregations which create law and order situations and presently, the risk of spread of COVID infections would become imminent. The Court directed the district and jail administration to ensure that proper treatment was provided to the convict appellant at the suitable medical institution in light of the observations made in the medical reports/ certificates issued from the AIIMS, Jodhpur.

[Asharam v. State of Rajasthan, 2021 SCC OnLine Raj 451, decided on 21-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

For the petitioner: Mr J.S. Choudhary, Sr. Advocate with Mr Pradeep Choudhary

For the respondent: Mr Anil Joshi

Case BriefsHigh Courts

Allahabad High Court: Following the order given on 11th May by the Court which had directed that Pandemic Public Grievance Committee should be formed in each district, the Court noted that the government had filed an affidavit stating they had passed directions to form a committee in each district on 13th May, 2021.

As no guidelines were given by the state on how such committees would function the Court ordered that the Committee along with the District Nodal Officer who is appointed in every district by the State Government shall ensure that each and every grievance stands redressed within 24-48 hours. The Court also enlarged the scope of the Committee to look into the complaints of supply of oxygen to those who are in home isolation, the private hospitals and nursing homes of the district concerned.

Health Infrastructure of five districts

In the order dated 11th May, the Court had ordered district magistrates to submit data on health infrastructure in their districts. On perusal of the data, the Court had no hesitancy in stating that the infrastructure was lacking in urban areas to meet the needs of the city population and life saving gadgets were scarce in rural community health centres. Level 3 hospitals were lacking in most districts.

Taking the sample case of Bijnor, both in terms of health infrastructure and testing, the Court ordered the State Government to immediately improve and increase the testing methods of the rural population and the population of small cities and towns and also provide sufficient health care infrastructure.

Court observes State’s Health System is “Ram Bharose”

Taking the case of one (Late) Mr Santosh Kumar, 64, who was admitted in an isolation ward in Medical College, Meerut on 21st April. On 22nd April, he went to the washroom and fainted there. He was brought out and laid on a stretcher. Efforts were made to revive him but unfortunately he passed away. The doctor who admitted him in the hospital was the same doctor on duty that night, however neither that doctor and none of the other hospital staff could recognize the patient and his body was disposed of as an unidentified body. On this incident, the Court observed that

If this is the state of affairs of treatment at medical College in the city like Meerut then the entire medical system of the State pertaining to the smaller cities and villages can only be taken to be like a famous Hindi saying ‘Ram Bharose’

The Court further observed that:

‘A patient is admitted to the hospital in an absolute care of doctors and paramedical staff and if the doctors and para medical staff adopt such casual approach and show carelessness in the performance of their duty, then it is a case of serious misconduct because it is something like playing with the lives of innocent people’

Court emphasised on need to vaccinate each person in the state and improve health infrastructure

The Court gave the following suggestions to the state to improve vaccination rate in the state

  1. Those who would like to buy vaccines for the ‘have-nots’ should be allowed to do so and given benefit under the IT Act.
  2. Big business house who donate to religious organisations should be asked to divert fund for vaccines.
  3. Incentives should be given to local manufacturers who have the infrastructure to produce such vaccines.
  4. Big medical companies and even the government should produce vaccines on a large scale.

The Court observing that when it [health infrastructure of the state] cannot meet the medical requirements of our people in normal times then it definitely had to collapse in the face of the present pandemic, gave various suggestions for improving the health infrastructure of the state such as:

  1. All nursing homes should have an oxygen facility on each bed.
  2. Nursing homes/hospitals having more than 20 beds should have 40% beds reserved for ICU.
  3. Of the designated 40 per cent; 25 percent should have ventilators, 25 percent should have High Flow Nasal Cannula and 50 per cent of the 40 per cent reserved beds should have bipap machines
  4. Every hospital with more than 30 beds should have an oxygen production plant
  5. Medical colleges in Prayagraj, Agra, Meerut, Kanpur and Gorakhpur should have enhanced facilities as are there with the prestigious Sanjay Gandhi Postgraduate Institute within a period of four months. Emergency laws should be applied for the acquisition of land for them, autonomy and funds should be given to them to achieve the same.
  6. Community health centres in villages should have pathology services at par with Level 2 hospitals
  7. Every B and C grade town in the state should have 20 ambulances each and every village should have 2 ambulances with ICU facilities.

The Court stated that the viability of following the suggestions may be looked into at the highest level and a report should be submitted on the next date by the Health Secretary of both the Centre and the State. The Court directed appointment Nodal Officers by the District Judges of districts Bijnor, Bahraich, Barabanki, Shrawasti, Jaunpur, Mainpuri, Mau, Aligarh, Etah, Etawah, Firozabad and Deoria and asked them to submit a report in a week’s time. The date of next hearing was set at 22nd May, 2022.

[In-Re Inhuman Condition At Quarantine Centres And For Providing Better Treatment To Corona Positive, Public Interest Litigation No. 574 of 2020, decided on 17-05-2021].

 

Case BriefsHigh Courts

Patna High Court: The Division Bench comprising of Sanjay Karol, CJ., and S. Kumar, J., opined that it is the settled position of law that the right to health, including access to basic medical infrastructure, is a facet of Article 21 of the Constitution of India, which the State is duty-bound to provide. The Bench stated,

Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21.

Relying on the decision of Constitution Bench of the Supreme Court in Common Cause (A Registered Society) v. Union of India, (2018) 5 SCC 1, the Bench reiterated that when it comes to interpretation of fundamental rights, the Court has to adopt a liberal, dynamic, extensive and interpretative approach and needless to add the right to life has to be with dignity is a settled principles of law. Reliance was also placed by the Court on the decision of Supreme Court in Union of India v. Mool Chand Kharaiti Ram Trust, (2018) 8 SCC 321,wherein it had been reiterated that the constitutional duty to develop “humanism” as envisaged under Article 51-A(h) applicable to the medical profession.

The counsel for one of the petitioners, Mr. Dinu Kumar informed the Court that the Medical Institutions, specified to deal with Covid-19, are lacking in infrastructure. Illustratively, he mentions that C.T. Scan Machines are either not installed or not fully functional/operational, be it for whatever reason.

Since the onset of the first wave of current Pandemic, the Court had been monitoring the position within the State. The Bench opined that the biggest challenge before the Government is to change the mindset of the people of Bihar and break the myth amongst the local populace that- Bihar Corona ko Khaa Gaya Hai. The various directions issued, policies framed and programmes propagated by the Central Government and the State Government under the provisions of Disaster Management Act, 2005 and Epidemic Diseases Act, 1897, needs to be highlighted, popularised and people need to be sensitised, both in the urban and rural areas by all modes of communications, including electronic and print media. The Bench suggested,

On a personal level Persons engaged in pursuing social beneficially schemes, can be asked to sensitize the general public in adhering the advisories issued, at least of wearing masks; maintaining social distancing; avoiding congregation at public places; and taking all precautions in dealing with the problems arising out of current Pandemic Covid-19.

Noticing that in Bihar, recovery rate improved up to 89.72%, above than the national recovery rate of 77.77 % and the death rate in Bihar was the lowest in the country. The Bench complimented the officials, who have wholeheartedly and dedicatedly devoted themselves to this battle against the corona virus. The Bench opined that as representatives of institutions and pillars of a democracy, it is the collectively responsibility of the Court to ensure that the people get help and are provided with the healthcare they need, especially in these times of great crisis. The Bench added,

None should lose life only on account of lack of adequate medical care. We would also be amiss if, right at the outset, we do not acknowledge the excellent work carried out by our doctors and other medical staff whom we had in previous litigation termed as our Guardian Angles.

In the attending circumstances, when the State is in a state of a medical emergency, for the State itself has imposed lockdown from 06-05-2021, the Bench opined that non-reporting of deaths by the functionaries under the Municipal Act and the Panchayat Act should also entail action for their removal on the ground of non-performance/discharge of their duties. Hence,

The public representatives must engage themselves at the grass-root level, for they are pretty familiar with the geography, demography and topography of their respective jurisdiction. to ensure that all deaths taking place within their respective jurisdictions, are immediately reported and certainly not later than 24 hours.

The Bench emphasized that in case of violation to report the deaths within 24 hrs, the Court would make sure to remove the official responsible for negligence from the service. With regard to the issue of hoarding/black-marketing of the medical equipment, including oxygen cylinder, the Bench directed the state to take necessary actions against the same.

Directions by the Court

In the above backdrop, the Bench issued following directions:

  1. The government hospitals are duty-bound to extend medical assistance for preserving human life. Failure on the part of even private hospitals to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21.
  2. The public representatives as also the functionaries of the State under the Registration Act, Municipal Act and the Panchayat Act shall take all steps ensuring implementation of the Government policies, including immediate registration of deaths, more so in the rural areas of Bihar.
  3. All deaths must be reported within 24 hours. A true picture is essential for taking effective steps in defeating this pandemic Covid-19.
  4. The State need to shift the focus to the rural areas so as to ensure that none is deprived of the medical health infrastructure in connection with pandemic Covid-19.
  5. Government of India shall favourably consider the request seeking enhancement of the quota of oxygen cylinders and oxygen (LMO) within four days.
  6. Municipal authorities are directed to take steps for proper collection, treatment and disposal of waste generated from COVID patients in home isolation.
  7. The process of procuring C.T. Scan equipment is directed to be expedited.
  8. Government of Bihar shall file a fresh affidavit, furnishing complete information in a format (tabular chart) prepared by all the learned counsel in terms of our direction within next four working days.
  9. Fresh data be furnished to this Court, with respect to RTPCR, positivity rate and death etc., making clear the geographical locations, Urban and Rural designations and also, the number of (a) Covid Care Centres (CCC); (b) Dedicated Covid Health Centres (DCHC); (c) Dedicated Health Centre (DHC) or for that matter the private hospitals in each one of the districts.

[Shivani Kaushik v. Union of India, Civil Writ Jurisdiction Case No. 353 of 2021, order dated 13-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Advocates before the Court:

For the Petitioner/s: Shivani Kaushik (In Person)

For the UOI: Dr K.N. Singh (ASG)

For the State: Anjani Kumar, AAG-4

For the Respondent 5: Mrs Binita Singh

For Respondent 6: Shivender Kishore,

For PMC: Prasoon Sinha

For DMCH : Mr. Bindhyachal Rai, Advocate
For GMC : Mr. Rabindra Kr. Priyadarshi ,
For the Intervener : Mr. Rajiv Kumar Singh, Advocate

Case BriefsCOVID 19High Courts

Allahabad High Court: The division bench of Siddhartha Varma and Ajit Kumar, JJ. while hearing suo moto proceedings to examine the Covid 19 situation across the state of Uttar Pradesh, gave the following directions:

Creation of Pandemic Public Grievance Committee: The Court directed that a three member Pandemic Public Grievance Committee shall be formed in every district within 48 hours of the passing of this order. The committee would consist of Chief Judicial Magistrate or a judicial officer of similar rank to be nominated by the District Judge, Professor of a Medical College to be nominated by the Principal of Medical College and if there is no medical college then a level-3/4 doctor of district hospital to be nominated by Chief Medical Superintendent of that district hospital and an administrative officer of the rank of Additional District Magistrate to be nominated by the District Magistrate.

Submission of Details: The Court sought the following information from the districts of Bahraich, Barabanki, Bijnor, Jaunpur and Shravasti both at urban and rural level. (I) Number of city population; (2) Number of level-1 and level-3 hospitals with details of beds; (3) Number of doctors, anesthetists in level-2 level-3 hospital; (4) medical and paramedical staffs (5) Number of BiPAP machines and High Flow Nasal Cannula Masks (6) Number of rural population tehsil-wise, (7) Number of community health centres,(8) availability of beds in community health centres (9) number of life saving gadgets like High Flow Nasal Cannula Masks, BiPAP Machines; (10) Number of oxygen concentrators with capacity details in community health centres, (11) Number of medical and para-medical staffs. The Court also asked the state to disclose how many tests were conducted since 31st March.

Compensation to teachers, investigators and Shiksha Mitras who passed away on Election Duty: The Court was not happy with the Rs 30 lakh promised as compensation to the teachers, investigators and Shiksha Mitras who had passed away while on election duty. As per the Court, it was too meagre an amount and proposed that the amount should be atleast to the tune of 1 crore and asked the State Election Commision to rethink the compensation. The Court observed that it was a deliberate act on the part of the State and State Election Commission to force them to perform duties in the absence of RTPCR support and it was not the case that somebody volunteered to render his/ her services during election but it was all made obligatory to those assigned with election duty to perform their duties during election even while they showed their reluctance.

Inoculating physically handicapped people and illiterate: The Court asked the State government how it plans to inoculate the physically challenged persons who cannot make it to the vaccination centres and also those who are illiterate (both labour and villagers) who cannot register themselves on the COWIN app. The Court directed the State Government to explain as to what is the difficulty with it if it opts to a guideline to inoculate physically challenged persons even in the absence of the Central Government guidelines.

Fact-finding committee on death of Justice VK Srivastava: The Court directed the State Government to constitute a Committee to conduct a fact finding enquiry into the treatment administered to late Justice V.K. Srivastava and submit the report to this Court within two weeks. The Court noted that the documents show that the late judge was advised life saving drugs Remdesivir, however, the papers do not show whether actually he was administered Remdesiver or not, on the first day and subsequent two days.

The Court also questioned the State regarding the diet given to covid patients in Government hospitals and also directed that no coercive action should be taken against Sun Hospital, Lucknow till they decide on show cause notice given to the Hospital and its reply. The next hearing is to take place on 17th May, 2021. [In-Re Inhuman Condition At Quarantine Centres And For Providing Better Treatment To Corona Positive, 2021 SCC OnLine All 289, decided on 11-05-2021].

Case BriefsCOVID 19High Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Chander Bhusan Barowalia, JJ passed directions against the respondents in addition to the directions already passed in CWPIL No. 11 of 2020.

The instant petition was filed as a pro bono publico for grant of appropriate directions to ensure that all the Covid patients are provided adequate medical facilities including beds, medicines and ventilators at the Dr. Y.S. Parmar Medical College and that the Covid patients at Nahan Government Hospital are properly and regularly attended to and treated by the doctors and not be left at the mercy of the medical support staff and to further ensure immediate installation and functioning of the ventilators already supplied and available in the Hospital and that every doctor at the hospital may kindly be made personally responsible and liable to ensure that the critical Covid patients requiring oxygen are put on ventilators forthwith in order to prevent further loss of life and to complete the installation and functioning of the existing oxygen manufacturing plant in the Nahan Medical College premises forthwith from its emergency fund without waiting for the resolution of the dispute with the supplier of the said oxygen plant and machinery. An appropriate direction is also requested as the nodal agency to execute and monitor the financial obligations of the State under the Disaster Management Act, 2005 and lastly to designate the Nahan Medical College as Covid 19 dedicated hospital for the district.

The main issue is about lack of oxygen facilities at Dr. Y. S. Parmar Government Medical College, Nahan and non-functioning of 25 ventilators which have been given to the Medical College under the HIM Care Scheme in July, 2020.

Counsel for the petitioners submitted that in view of the surge of Covid cases, the hospital at Nahan is far too small to handle Covid cases as it has only 20 Covid ICU beds and additional 10 beds which are being maintained through ‘D’ type oxygen cylinders to deal with the Covid patients. Whereas, taking into consideration the sudden surge in the Covid positive patients, the facility for atleast 500 persons should be made available by the Government.

The Court laid directions due to drastic surge in the Covid-19 positive cases and as the fatality in the State are highest in the Country. The directions are:

  • Increase the number of authorized laboratories/clinics/hospitals which can carry on the testing for a larger percentage of population
  • Increase the number of testing being done in the bigger towns of the State. The State Government should consider the use of other kits, besides the Rapid Antigen Kit, or the RT PCR tests, for increasing the tests being carried out on daily basis.
  • In order to increase the testing facilities in the hill districts of the State, the State Government should consider sending of ‘mobile vans’ which are fully equipped for carrying out the testing of COVID-19 virus.
  • The State should increase the number of dedicated COVID-19 Hospitals. For, merely having few dedicated COVID-19 hospitals, is too little to tackle the menace, especially when the pandemic is likely to spread and increase throughout the State in the coming months.
  • The State is also directed to consider the feasibility of establishing temporary hospitals with the help of any other Central agency.
  • The State is directed to increase the number of beds available in the hospitals. It shall ensure that the majority of the beds are equipped with Oxygen tank and sufficient numbers of bed are equipped with ventilators. If necessary, the number of ICUs in the hospitals should be increased. This is essential as it is claimed that the second strain directly affects the lungs of the patient. Therefore, the patient needs to be given intensive care, and may require to be put on ventilator immediately.
  • The State Government is directed to ensure that the PPE kits and other protective gears, such as gloves, masks, and sanitizer are provided to all the medical staff, especially to the Doctors, Nurses, Ward Boys to look after the COVID-19 patients. Until and unless our front line worriers are protected from COVID-19 virus, it will be impossible for us to win the battle against the COVID-19 virus.
  • The State Government is directed to publish the names and locations of the testing centres, and the names and locations of Hospitals/Dedicated COVID-19 Health Care Centres in the media bulletin on a daily basis. The media bulletin should clearly indicate the total number of beds available in each hospital/Dedicated COVID- 19 Health Care Centres, and the number of vacant beds available in each hospital. It should also indicate the class of the beds i.e. the number of beds attached with ventilators, number of beds attached with Oxygen cylinders and the number of beds without any Oxygen tank/ Cylinder.
  • We make it absolutely clear that in case the private hospitals refuse to cooperate or reluctant to provide Covid test and covid facilities, then the State Government shall forthwith resort to coercive steps as provided under the Disaster Management Act and also Essential Services Maintenance Act. In addition thereto, wherever private hospitals have been granted incentives like plots on concessional rates etc. etc. The State Government shall be free to withdraw the incentive/ recover the amounts etc. Lastly, the State may proceed to take any other coercive or punitive step as may be warranted and otherwise permissible under the law.
  • The State should also consider the purchasing of additional CT Scan Machines in the State as it is learnt that this machine is essential to detect the presence of the second strain of Covid-19 virus.

The Court further directed to furnish the following informations:

i) Available bed capacity exclusively for Covid-19 facilities in the State both in Government and private hospitals alongwith the details of the availability of oxygen (high flow or otherwise).

ii) State shall give the details of the steps taken and proposed to augment the availability of oxygen meeting both the current and projected requirements.

iii) Place on record the plan prepared by the State Government under the Disaster Management Act to tackle the Covid-19 cases.

iv) Steps taken to ensure the availability of essential drugs including Remdesivir, Favipiravir and Tocilizumab amongst other prescribed drugs and the modalities which have been set up for controlling the essential drugs for preventing hoarding and ensuring the proper communication of the requirement at the level of each Districts by the District Health Authorities or the Collectors of the Health Department of the State.

v) The details of the steps taken by the Government to comply with the judgment of the Hon’ble Supreme Court in suo motu Writ Petition (Civil) No. 3 of 2021 in Re: Distribution of Essential Supplies and Services during pandemic, dated 30.04.2021.

vi) Furnish the details of the staff alongwith their designation who have been deputed in the Covid hospitals, both Government and Private.

vii) Respondent No.4 shall furnish the details with regard to distribution of Remdesivir, Favipiravir and Tocilizumab from the Central Government to the State Government up-to-date and why the State of Himachal Pradesh has been discriminated while making allocations of Tocilizumab vide letter dated 27.04.2021 and why allocation of only 3000 Remdesivir vials was made to the State of Himachal Pradesh in comparison to the States with lesser population and with far lesser Covid- infections.

viii) The State shall provide details along with data with regard to distribution of the oxygen and further the details proposed to augment the supply of oxygen.

ix) The State shall furnish the data and also give the data-wise demand and supply of oxygen for the last two weeks as well as future projected demand and the measures taken for meeting such demand.

x) The State shall ensure the uploading of real time data about the availability of beds in each hospital of the State for Covid-19 patients on its Web Portals and also on the Web Portals of all the Hospitals and also physically display the data outside each hospital on daily basis .

xi) As regards the availability of beds in hospital, the following parameters of information must be placed in the public domain by the State Government for all Covid designated hospitals in the State, both public and private through dedicated website and physically outside the hospital.

(a) Name and address of hospital;

(b) Total number of designated Covid-19 beds;

(c) Total number of available designated Covid-19 beds;

(d) Number of beds available in ICUs with ventilators.

(e) Number of beds in ICUs without ventilators;

(f) Number of general hospital beds available with oxygen;

(g) Number of general beds available without oxygen facility.

(h) Date and time when this information was last updated;

(I) Name and mobile number of the Nodal Officers for admission to the hospital;

(j) Link to GPS location of the hospital (only for website).

Such information must be updated once every eight hours and it must be ensured that the site is not password protected and does not require any login credentials to view this information.

(xii) The State shall also furnish the steps taken regarding the availability of oxygen for those all the Covid-19 patients, who though may in home isolation but require oxygen.

xiii) Experts speculate a third wave and, therefore, the State shall disclose its road-map in case third wave strikes.

(xiv) The State has not carried out any Vaccination Programme for those aged between 18 to 44 on the pretext of non-availability of vaccine. Therefore, the State Government is directed to disclose clearly as to from which date, it shall commence the vaccination for the age group as aforesaid.

(xv) The State shall furnish its stand regarding the importance (if any) of the ventilators in treatment of Covid and how it proposes to put to use the ventilators that are lying idle with the State in various hospitals.

(xvi) The State is directed to furnish the complete details regarding the availability of essential medicines required for the treatment of Covid-19 patients, more particularly, the availability of Remdesivir, Favipiravir and Tocilizumab and in case of short-fall, the steps taken in this regard.

(xvii) In the meanwhile, respondent No.4 is directed to ensure the adequate availability of the essential drugs, more particularly, the life saving drugs to the State of Himachal Pradesh and enumerate in detail the steps taken in this regard on or before the next date of hearing.

[Ashutosh Gupta v. State of HP, 2021 SCC OnLine HP 4555, decided on 06-05-2021]


Arunima Bose, Editorial Assistant has put this report together 

Counsel for petitioners: Mr. B.N. Misra and Ms. Vandana Misra.

Counsel for the State: Mr. Ashok Sharma and Mr. Ajay Vaidya

Counsel for respondent 4: Mr. Balram Sharma

Case BriefsCOVID 19Supreme Court

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

COVID 19

The Ministry of Home Affairs through Order No. 40-6/2020-DM-I(A), exercised under Section 10(2)(l) and Section 65 of the Disaster Management Act, 2005 has directed governments and authorities of states and union territories to ensure the following:

  1. Use of liquid oxygen is not allowed for any non medical purpose.
  2. All manufacturing units may maximise the production of liquid oxygen and provide it to the government with immediate effect and till further orders.
  3. All stocks of oxygen should be made available to the government for medical purposes only.
  4.  No exception is allowed to any industry with regard to use of liquid oxygen.

Earlier, National Executive Committee under the Disaster Management Act, 2005 by Order No. 40-3/2020-DM-I-(A) dated 22nd April, 2021 had taken various measures to ensure uninterrupted supply of oxygen throughout the country. These measures included restricting industrial usage of oxygen to ensure availability of oxygen to covid patients.

A copy of the order is given below:

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and S. Ravindra Bhat, JJ has taken suo motu cognisance of the “grim” situation of the country hit by the second wave of COVID-19 pandemic and has asked the Central Government to report on,

  1. The existence or otherwise and requirement of setting up of a coordinating body that would consider allocation of COVID resources in a consultative manner (with the involvement of concerned States and Union 3 Territories).
  2. Considering declaration of essential medicines and medical equipment including the Drugs, oxygen and vaccination 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.

Due to the sudden surge in the number of covid patients and mortality, the nation is witnessing a shortage of essential COVID resources such as Oxygen and drugs like Remdesivir.

While, drugs, oxygen and vaccination availability and distribution are being carried out by Governments including the Central government according to protocols established by the health authorities, the Court noticed that a certain amount of panic has been generated and people have invoked the jurisdiction of several High Courts in the country seeking various reliefs such as Delhi, Bombay, Sikkim, M.P., Calcutta, Allahabad and Gujarat.

“The High Courts have passed certain orders which may have the effect of accelerating and prioritising the services to a certain set of people and slowing down the availability of these resources to certain other groups whether the groups are local, regional or otherwise.”

The Court was hence, of the prima facie view that the distribution of these essential services and supplies must be done in an even handed manner according to the advice of the health authorities which undoubtedly take into account relevant factors like severity, susceptibility, the number of people affected and the local availability of resources.

It, hence, asked the Central Government to place before it a national plan for dealing with the above services and supplies during Pandemic.

The Court, hence, issued notice to the Union Government, the State Governments/Union Territories and the parties, who appeared to have approached the High Courts to show cause why uniform orders be not passed in relation to

  1. a) Supply of oxygen;
  2. b) Supply of essential drugs;
  3. c) Method and manner of vaccination; and
  4. d) Declaration of lockdown.

The Court will hear the matter tomorrow i.e. on 23.04.2021.

Senior Advocate Harish Salve, assisted by advocate Anuradha Dutta, has been appointed as Amicus Curiae to assist the Court in the matter.

[IN RE : DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC, 2021 SCC OnLine SC 339, order dated 22.04.2021]

Experts CornerShantanu Mukherjee

Introduction

The bargain implicit in a patent – the Faustian pact, as Bently and Sherman put it – is classic: a limited monopoly granted by the State in exchange for public disclosure of an invention. Over the years, perhaps nowhere has this pact fuelled as much academic and policy debate as in the pharmaceutical industry. The basis for the debate is understandable: medicines can save lives, and therefore monopolies that potentially restrict access to medicines are a matter of public concern, but on the other hand, for the private sector, drug development and manufacture is a business, and an expensive business at that.

 

When the Covid-19 pandemic first hit, it was clear that global commitment to research collaborations and technology licensing would be crucial to scale up research, development, manufacturing and supply of vaccines and therapies. Even after a vaccine or vaccines had been developed, no pharmaceutical company would in itself have the manufacturing capacity to meet global demand for vaccines. One would need to manufacture around 5 billion doses to vaccinate the world, for a single-dose vaccine, and 10 billion for a two-dose vaccine.[1] To contextualise the sheer enormity of this challenge, consider that all the vaccine companies in the world together produce less than 6 billion doses a year (including flu shots, routine childhood immunisations, etc.). This means that in order to meet global demand for Covid-19 vaccines without cutting back on any others, global vaccine manufacturing capacity would need to double at the very least, and more likely almost triple.[2] This would require cross-border licensing, technology transfer and contract manufacturing deals to be struck by vaccine developers at a scale and pace hitherto unheard of.

 

Furthermore, hundreds of patents associated with the treatment of viral infections such as Severe Acute Respiratory Syndrome (SARS), Middle East Respiratory Syndrome (MERS), influenza and Ebola had the potential to be repurposed for treating Covid (as remdesivir, favipiravir and lopinavir, among others, eventually were)[3]. Could this be achieved if patent-holders clung to monopoly-based rent-seeking ideologies? Could innovators be trusted to grant licences fairly, quickly and on reasonable terms? Would vaccine nationalism and corporate self-interest impede the global effort to combat Covid, and limit access to vaccines and therapies? These were the questions being asked by concerned citizens and organisations early in 2020[4], much as they had in the context of other public health crises[5].

 

Now, less than a year later, several vaccines have been approved for public use, supply deals worth billions of dollars have been struck and governments around the world have begun massive vaccination drives for their citizens. Were the naysayers wrong? Has the world managed to rise above petty national and corporate interests and come together, as the Beatles had hoped?

 

As is often the case when ideals collide with realpolitik, the situation is rather more intricate than that.

Through these series of articles, we aim to explore the legal and commercial issues at the heart of the biggest global vaccination effort the world has ever seen.

Part 1: Ideals v. Deals

 

  1. “You Got The Cash, We Got The Doll”

In early 2020, as Covid-19 raged across the world and companies raced to develop therapies and vaccines, supported by billions of dollars in government aid, concerns grew regarding access.

 

In March 2020, it was reported that the Trump administration was trying to secure a vaccine being developed by CureVac, a privately held German biotechnology group, exclusively for the United States (US), by persuading the group to move its development efforts to the US, in exchange for a large financial donation.[6] CureVac’s investors denied the story and German officials conveyed their disapproval of any such exclusive access deal in no uncertain terms. A few months later, the German government bought a 23% stake in CureVac, effectively ensuring it can keep an eye on – and likely a veto over – similar overtures.[7]

 

On 13 May 2020, Sanofi’s CEO, Paul Hudson, said in an interview that the US would likely get Sanofi’s Covid-19 vaccine (if approved) before the rest of the world, because the US was first to fund Sanofi’s vaccine research and expected that “if we’ve helped you manufacture the doses at risk, we get the doses first”.[8]

 

This, understandably, did not go down well in Europe. The French Prime Minister delicately reminded Sanofi that it was a “deeply French company” and emphasised that “equal access to a vaccine for all is non-negotiable”.[9]

 

Hours after Hudson’s interview appeared, Sanofi clarified that while vaccines from US production sites would be mainly reserved for Americans, production capacity elsewhere would supply Europe and the rest of the globe.[10]

 

This echoes a more recent controversy, arising out of an interview given by AstraZeneca’s CEO[11], in which, while seeking to explain the company’s recent inability to meet its vaccine supply commitments (which he characterised as being on a “best efforts” basis), he gave the impression that vaccine production from AstraZeneca’s British plants were being reserved for the United Kingdom (UK), while the European Union (EU) was being supplied by a plant in Belgium (which was facing production issues, hence the supply disruption). We will examine the EU/AstraZeneca Advance Purchase Agreement (recently released in redacted form), and other commercial deals that define the current vaccine access landscape, in greater detail in future instalments of this series (including “Part 2: Follow the Money”).

 

The CureVac and Sanofi incidents underscored a larger trend. As the US, UK and other wealthy nations rushed to enter into Advance Purchase Agreements with vaccine manufacturers such as Moderna, Pfizer and AstraZeneca for the purchase of under-development vaccines, an overwhelming majority of the world’s (already limited) vaccine manufacturing capacity was being blocked for them, effectively denying access to poorer countries that could not afford to enter into these at-risk vaccine pre-purchase deals.

 

The effort to develop and distribute a vaccine was beginning to look less like a collaborative global endeavour and more like an undignified Black Friday stampede, or a brawl for the last action figure in a store the night before Christmas.

2. “Cohagen, Give These People Air!”

Pressure mounted from the open access lobby for a more equitable approach. On 14th May 2020, 140 political leaders and economists released a letter[12], drafted by United Nations Programme on HIV/AIDS (UNAIDS)  and Oxfam, calling for a World Health Organisation (WHO) administered global agreement that (i) ensured mandatory global sharing of all Covid-19 related knowledge with a pool of licences freely available to all countries; (ii) established a global manufacturing and distribution plan “fully funded by rich nations”; and (iii) guaranteed that Covid-19 vaccines, diagnostics, tests and treatments were provided “free of charge to everyone, everywhere”. On the same day, members of European Parliament expressed support for compulsory licensing as a means of ensuring Europeans access to approved Covid-19 vaccines.[13]

 

Meanwhile several health advocacy groups, including Doctors Without Borders, Third World Network and India’s Cancer Patients Aid Association, asked the Indian government to invalidate three Gilead patents protecting Remdesivir (at that time, the only drug approved in the US for emergency treatment of Covid-19).[14] This was despite the fact that Gilead had issued voluntary licences to manufacturers in India and Pakistan allowing them to make and sell Remdesivir in 127 countries.[15]

 

At the same time, other global initiatives such as the Medicines Patent Pool (MPP)[16], the World Health Organisation (WHO) Covid-19 Technology Access Pool (C-TAP)[17] and the Open Covid Pledge[18] were trying to put in place voluntary pooling mechanisms to share the intellectual property (IP) and technology necessary to fight Covid, but these failed to gather critical mass and take off. Industry leaders appeared generally dismissive[19] of these initiatives, and they failed to attract any pledges or licences from drug companies developing Covid therapies or vaccines. Although 18 generic drug manufacturers did offer their capacity to develop and supply Covid-19 treatments to those in need via the MPP, no patent licences for such treatments have been placed in the MPP pool to date.

 

It was reported[20] that apart from lacking industry support, these initiatives had been edged out by the WHO’s more popular program, the Access to Covid-19 Tools (ACT) Accelerator.[21] The ACT Accelerator was preferred, the article theorised, because it respected and preserved the intellectual property status quo, while the C-TAP sought to challenge it.[22]

 

However, with even the European Commission now admitting the unanticipated challenges in scaling up production of vaccines and mulling voluntary licensing mechanisms[23], the dynamics of the conversation around voluntary sharing approaches may shift.

 

3. “I’ll Live To See You Eat That Contract”

On 2 October 2020, India and South Africa tabled a joint proposal before the World Trade Organisation (WTO) requesting that a temporary waiver be granted to WTO members permitting them to choose not to implement, apply or enforce certain obligations related to Covid-19 products and technologies under Sections 1 (copyrights and related rights), 4 (industrial design), 5 (patents) and 7 (protection of undisclosed information) of Part II of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, for the duration of the Covid crisis.[24] The proposal argues that it offers a way to ramp up global production of vaccines and calls on members to ensure that IP rights do not impede timely access to affordable vaccines and medicines.[25]

 

The proposal was opposed by several other countries on the basis of the argument that existing TRIPS allowances for compulsory licensing and parallel importing were sufficient to address the relevant concerns.

 

Proponents of the waiver proposal countered that such TRIPS allowances are illusory, as compulsory licences, when granted in the past by countries such as India, Malaysia and Colombia, have faced backlash from other member States and pharmaceutical companies, including threats of trade sanctions.[26] Interestingly, the draft of the waiver proposal requires that WTO members do not challenge any measures taken in conformity with the waiver, including through the WTO’s Dispute Settlement Mechanism.

 

Recent news reports indicate that more than 400 US civil society groups and lawmakers are calling on the US President to support the TRIPS waiver.[27] On 3 February 2021, 14 members of the European Parliament, in a letter to the EU leadership, asked the EU to support the waiver and issue compulsory licences to facilitate the scaling up of Covid-19 vaccine production.[28] The WTO General Council (GC) will receive an update from the TRIPS Council on this matter during the GC meeting on 1-2 March 2021.

 

Increasing inability by vaccine manufacturers to meet their supply commitments, resulting contractual and diplomatic tensions and allegations of vaccine nationalism will likely cause the conversation to return to the TRIPS waiver proposal periodically, although the proposal itself is unlikely to pass (ultimately). Some believe that the political push for a TRIPS waiver may well lead voluntary pooling initiatives such as C-TAP to finally take off, in that, faced with the prospect of a TRIPS waiver or compulsory licensing, the industry may move to adopt voluntary approaches. Further, while the TRIPS waiver proposal can, in theory, expedite response to the pandemic by suspending intellectual property protection to trade secrets, it may not eventually be able to actually force technology transfer[29]. If potential vaccine manufacturers cannot get access to the complex technological know-how necessary to manufacture the vaccines or therapies (where such know-how has not been disclosed in the patent filings and is protected as confidential knowhow or trade secrets), the TRIPS waiver would do little good[30]. Under those circumstances, a voluntary mechanism for facilitating technology transfer such as the C-TAP could come into its own.

 

Conclusion to Part 1

The biopharma industry’s lukewarm response to sweeping initiatives like the Open Covid Pledge, the WHO/MPP patent pools and the TRIPS waiver proposal, when contrasted with the range of voluntary measures (such as voluntary licensing and IP waivers) taken by the industry over the past year suggest that patent-holders would much rather adopt a case-by-case approach to waiving or licensing their IP than sign up to a blanket, global commitment in respect of such IP. While drug companies can probably live without making large profits[31] from the ongoing vaccine development frenzy (given the substantial government funding they’ve received towards development and commercialisation), they can’t simply give away the IP they develop without retaining any say in the manner of its exploitation, either. From the perspective of a pharma CEO who is, ultimately, a salaried professional answerable to shareholders that demand a return on their investment, this would likely amount to throwing the baby out with the bathwater.

 

The second part of this series (“Part 2: Follow the money”) will examine how compulsory licensing failed to move beyond the statute books other than in Israel but did, arguably, trigger a few voluntary IP non-enforcement pledges by vaccine manufacturers, and how access to vaccines today is a function not of the sweeping global “open access” schemes argued for by so many, but on a patchwork of bilateral advance purchase agreements between governments and vaccine developers, and public-private initiatives such as COVAX[32].

 

† Shantanu is the founder of Ronin Legal, a legal boutique with a focus on pharma, biologics and healthcare. He can be reached at shantanu@roninlegal.in and on Twitter [@LegalRonin]. 

[1]<https://www.gatesnotes.com/About-Bill-Gates/Year-in-Review-2020?WT.mc_id=20201222100000_YIR2020_BG-TW_&WT.tsrc=BGTW>.

[2]Ibid.

[3]<https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7474498/>.

[4]<https://www.iam-media.com/coronavirus/the-danger-coronavirus-presents-biopharma-patent-owners>. See also <https://www.iam-media.com/coronavirus/global-calls-compulsory-covid-19-patent-licensing-build>. See also the Médecins Sans Frontières Technical Briefing Document “Voluntary Licenses and Access to Medicines” available HERE

[5]See, among others, Hoen, Ellen, Private Patents and Public Health, Changing Intellectual Property Rules for Access to Medicines, available HERE

[6]<https://www.nytimes.com/2020/03/15/world/europe/cornonavirus-vaccine-us-germany.html>.

[7]<https://www.fiercebiotech.com/biotech/after-a-turbulent-few-months-germany-takes-a-stake-covid-vaccine-drugmaker-curevac>.

[8]<https://www.bloomberg.com/news/articles/2020-05-13/u-s-to-get-sanofi-covid-vaccine-first-if-it-succeeds-ceo-says>.

[9]<https://sciencebusiness.net/covid-19/news/transatlantic-tensions-over-access-covid-19-vaccines-mount-after-sanofi-ceo-says-us?_sm_au_=iVVTQQcQ7tvsNHsQvMFckK0232C0F

[10]<https://endpts.com/sanofi-walks-back-paul-hudsons-promise-of-early-vaccine-access-for-the-us-sort-of/>.

[11]In an exclusive interview to an Italian newspaper, available Here.

[12] Full text available HERE.

[13] Global Calls for Compulsory Covid-19 Patent Licensing Build, available HERE .

[14]See HERE. See also HERE.

[15] <https://generics.pharmaintelligence.informa.com/GB149889/Gilead-Licenses-Remdesivir-To-Five-Firms>. Generic versions of Remdesivir are now available in India. See  HERE.

[16]On 31-3-2020, the Medicines Patent Pool (MPP) – which has hitherto focused on increasing access to HIV, tuberculosis and hepatitis C drugs in developing nations through patent pooling arrangements – decided to temporarily expand its mandate to include any Covid-related health technology where licensing could improve access.

[17] C-TAP was launched in May 2020, to act as a platform to voluntarily share Covid-related knowledge, intellectual property and data and accelerate the scale up of manufacturing. See  HERE.

[18] The Open Covid Pledge (OCP) website <https://opencovidpledge.org/> lists patent-holders who are making their intellectual property available free of charge for use in alleviating the Covid-19 pandemic. The OCP attracted significant participation from technology giants (its founding partners included Facebook, Amazon and Microsoft) but none from companies developing Covid vaccines or therapies.

[19]Pharma Leaders Shoot down WHO Voluntary Pool for Patent Rights on Covid-19 Products, available HERE .

[20]Constraints Facing the Covid-19 Technology Access Pool (C-TAP) available HERE.

[21] The Accelerator is a global collaboration to accelerate the development, production, and equitable access to Covid-19 tests, treatments, and vaccines. It was set up by the WHO, European Commission, France and the Bill & Melinda Gates Foundation in April 2020.

[22]<https://genevahealthfiles.substack.com/p/constraints-facing-the-covid-19-technology>.

[23]“The Commission will foster the creation, if need be, of a voluntary dedicated licensing mechanism, which would allow technology owners to retain a continued control over their rights whilst guaranteeing that technology, knowhow and data are effectively shared with a wider group of manufacturers.” Communication from the Commission to the European Parliament, the European Council and the Council dated 17-2-2021, available HERE .

[24] Text of proposal available HERE

[25]See generally, Médecins Sans Frontières Briefing Document dated 8-10-2020 available HERE.

[26]<https://www.openaccessgovernment.org/trips-covid-19-waiver/103738/>.

[27]<https://timesofindia.indiatimes.com/world/us/us-civil-society-groups-lawmakers-press-biden-to-support-indias-trips-waiver-proposal-on-covid-19-vaccines/articleshow/81244149.cms>.

[28]<https://www.aninews.in/news/world/europe/eu-parliamentarians-strongly-back-india-south-africa-proposal-for-covid-vaccine-patent-waiver20210205044636/>.

[29]<https://genevahealthfiles.substack.com/p/constraints-facing-the-covid-19-technology>.

[30]<https://medicineslawandpolicy.org/2020/12/what-is-the-know-how-gap-problem-and-how-might-it-impact-scaling-up-production-of-covid-19-related-diagnostics-therapies-and-vaccines/>.

[31] Where do Covid-19 Vaccine Players Stand on Pricing? So Far, It’s No Profit, Slight Profit or Undecided available HERE.

[32] COVAX, the vaccines pillar of the Access to Covid-19 Tools (ACT) Accelerator, is co-led by Coalition for Epidemic Preparedness Innovations (CEPI), Gavi, The Vaccine Alliance and WHO. It is a global initiative that works with Governments, vaccine manufacturers, UNICEF, the World Bank, and others to ensure rapid and equitable access to Covid-19 vaccines for all countries.

Bharat ChughExperts Corner

There is hardly any webinar on the effects of the pandemic that gets concluded without the wise panellists exhorting us – in Churchill’s words not to, “let a perfectly good crisis go to waste”. The intent, of course, is for us to gather newer skills and keep reinventing ourselves, in order to stay relevant. While we may or may not learn, white collar criminals seem to know this better than anyone else and they are not letting this crisis go to waste.

Hate to sound like an alarmist, but the truth is white collar crime (WCC) is on the rise and it is further expected to grow – by alarming proportions – in the next few months and years. A crisis is often followed by a rise in the number of financial crimes. We are already seeing a huge rise/spike in cases relating to cybercrime, employee fraud, illegal profiteering, accounting malpractices, money laundering, corruption in the grant of government contracts, bailouts, stimulus packages, and so on. A large amount of money is being pumped into economies worldwide to alleviate the crisis.

We all know that it was not really the best of all possible worlds – financially, even before Covid, but the pandemic really made it worse. It has given rise to a vicious triangle (known as the fraud triangle); a deadly cocktail of pressure, opportunity and rationalisation which has always provided a great breeding ground for WCC.

Let us see how:

Pressure: A rising tide is known to lift all boats, but, it is only when the tide goes out that you learn who has been swimming naked.1 A crisis such as a pandemic offers not only a great motivation for all sorts of financial chicanery but also lays bare the real financial position of a lot of entities. Because of the financial downturn, businesses are under tremendous pressure to make (or at least appear to make) their financial targets/numbers. Most companies are missing their financial targets and that leads to enormous pressure. This is made worse by the kind of compensation incentive structures that we have. Executive compensation, as we all know, is mostly linked to profits, and the bottom line, unfortunately, is the only thing that separates success from failure in the cut-throat world of business. An unprecedented situation of pressure such as this, often yields itself easily to falsification of accounts, accounting malpractices, market manipulation, fraud and other financial shenanigans.

Opportunity: What has further exacerbated the situation is the presence of a great opportunity for people prone to such acts. With priorities elsewhere, internal controls, compliance and supervision have become somewhat lax. Travel-related restrictions and physical closure of offices have created gaps in regulation and oversight. Attention for the most part, is diverted to somehow keeping businesses afloat and saving jobs. Internal controls and incisive due diligences do not appear to be the top priority at this moment.

What provides an even greater opportunity is the fact that Governments across the world are pushing in trillions of dollars into the economy as stimulus packages and bailouts. Further, the Governments are procuring (especially in sectors such as healthcare) like never before and, since time is of the essence, the usual safeguards in the process in public procurement (both in terms of pricing and quality) are being bypassed. Extraordinary circumstances indeed require extraordinary measures but the extents to which we are ready to make departures from best and healthy procurement practices are quite disconcerting.

Times such as these yield themselves easily to corrupt practices. And in this, we may do well to remind ourselves that – even historically, most anti-corruption laws owe their genesis to crisis, wartime procurement, and the resultant corruption. Everyone seems to have let their guard down. This, as history tells us, is a terrible idea.

Rationalisation: This is another important element in understanding WCC. The people who usually commit WCC are intelligent and sharp people (usually decision-makers at the higher rungs of organisations and companies) who are very good at rationalising (though terrible at being rational). This rationalisation is nothing but a distortion of facts to make things appear better than they really are.

To illustrate this, the thinking of most white collar criminals mostly is, “It is just a change of numbers on a spreadsheet; we are not killing anyone”, or “We are doing this to save jobs, and we will push the money back in, once times are better.”

This deadly cocktail of rationalisation and short-term thinking is extremely problematic and is further compounded by a tendency to want to remain in “denial” – often despite all evidence to the contrary. There is no one as blind as the person who does not want to see, right?

A crisis – in fact, is time to introspect but not many companies (and that is true across the world, and across times) have successfully engendered a culture of radical honesty where anyone can tell the emperor that “he has no clothes…”. Rationalisation and wilful blindness are rampant; meetings often mere echo chambers. This is even more problematic in times of crisis and needs to change.

The fact that the victims of WCC often are a body as diffused and abstract as “shareholders”, “investors”, “taxpayers”, “employees” and not a single visible person – such as an 80-year-old widow, makes it easier for the perpetrators to rationalise. Since one cannot see the immediate victims, as one may – in a conventional crime such as murder, one finds it easier to rationalise and have less (or no) moral compunctions about one’s acts. The importance of putting a face to the victim cannot be emphasised enough. We need to ensure that victims of WCC do not remain invisible.

“If I look at the mass, I will never act. If I look at the one, I will.” This statement by Mother Teresa provides a great insight into human nature and reminds us that we are most likely to act charitably to the suffering of “one” who is before us, but the suffering of an abstraction such as “humanity”, “investors”, “shareholders” or “pensioners” fails to conjure up any humanity in us.

So, the point is made: given the circumstances, white collar crime needs to be taken seriously. In case of a company, indeed a company has “no soul to be damned and no body to be kicked”, but, under our legal system, a company can still be prosecuted and face massive and often debilitating fines. There is, therefore, a need to understand the risks and keep a few things in mind. Here are a few suggestions:

(iRecognising that this is not the time to drop our guard: Compliance departments in organisations should, in fact, be working in overdrive. There should be frequent checks and training/hygiene drives should be ramped up too, especially for those organisations which do business in areas having a lot of government interface, and areas which are tightly regulated and considered high risk traditionally – such as healthcare or defence. The same is also true for organisations dealing with sensitive personal data, take – for instance, companies in the fintech space.

One needs to be wary of the risks. This is not the time to cut down on in-house legal/compliance staff and external legal advice. Cutting corners with the law with a view to save up some money is extremely short-term/myopic thinking. The regulatory backlash and consequences would often far outweigh the compliance costs – for most high to moderate risk areas of work.

(iiPutting in place “adequate procedures” to ensure that corrupt practices do not take place. These “adequate procedures” are nothing but proper compliance and anti-bribery programmes. These commonly include:

(a) Exercises for identification of corruption risks; assessment of controls/checks and balances.

(b) Developing and ensuring compliance with proper policies and codes of conduct.

(c) Regular anti-bribery, anti-corruption training programmes for all relevant stakeholders.

(d) Proper vigil mechanism incentivising whistle-blowers to raise their concerns.

(e) Rules regarding maintenance of proper documentation to ensure illegal practices are ruled out.

(f) Investigation of suspected instances of illegality/corruption with a view to fix liability of individuals concerned.

(g) High-risk areas can be monitored with the help of data analytics. The compliance teams should have access to all the important data streams in order to boost efficiency.

The above procedures may not only help in preventing illegal practices but, in the event of a possible prosecution of the organisation, also afford a legally tenable defence to the company. Having “adequate procedures” in place (to check corruption) is a specific defence for companies under the new Prevention of Corruption Act, 1988 (POCA) where – for the first time – even commercial organisations can also be prosecuted for corruption, and not just errant individuals. Marking a departure from the earlier legal position, POCA also makes bribe-giving an offence. There is, therefore, a need to be extremely careful.

(iii) Introducing expedients such as creation of “ethical hotlines” that provide an anonymous, safe and easy reporting mechanism.

(ivChange in corporate culture: A strong corporate culture of zero tolerance of corrupt practices. Merely detailing the rules on the company website or portal is simply not enough. There should be a cultural shift within the organisation in order to ensure that everyone understands why a strong stance against financial crime is important and why doing business ethically is always a better idea. (In other jurisdictions, courts are increasingly looking into “corporate culture” while deciding as to whether, in a given case, acts of employees/agents can be attributed to a corporation, or not and whether a company can be criminally liable in a case.)

(v) Protection of whistle-blowers and better incentives: “Show me the incentive and I will show you the outcome.” This quote by Charlie Munger really sums up the central force driving human behaviour, across countries and across times. We, as a legal system, (and as organisations) really need to get our act together on not just protection of whistle-blowers but also their incentivisation; whistle-blowers and witnesses – after all – are the eyes and ears of the system. Most white collar investigations are complex and require “someone on the inside” to spill the beans, help and assist the investigation. But we have not done much to incentivise such assistance. Also, barring tax laws and some law on insider trading – no Indian law currently incentivises whistle-blowers. We, as human beings, function on incentives and having better incentives and protection for whistle-blowers will go a long way in strengthening corporate compliance, and ensuring that cases of white collar crime are caught early.

(vi) Prompt internal investigations/enquiries: Once a company learns of a potential fraud, proper fact-finding investigations should be undertaken at the earliest. Steps should be taken to preserve all the relevant data and information, to prevent obliteration of crucial evidence. A forensic investigator may also be engaged at the earliest to identify and plug-in any leaks and external counsel should be consulted to examine risk(s) and duty to report, if any.

(vii) Data backups and cybersecurity: Given the huge spike in cybercrime, corporations should be cautious of threats to their infrastructure both from the inside as well as outside. Data backups should either be centralised or stored in a warehouse and IT Departments should be on the constant lookout for any cyberattacks/ransomware attempts and vulnerabilities.

(viii) Insider trading: An unhinged economic environment can provide motivation to an employee to look for short-term gain, and capitalise on non-public price-sensitive information. Companies should promptly update their insider trading policies and reinforce the same by way of audits, seminars and trainings to remind the employees of their legal obligations as well as the risks associated with insider trading.

All of these would go a long way in checking the risk of WCC. But more than anything else a rethinking of “incentives”, checking loopholes which may provide opportunities for cutting corners with law, encouraging radical honesty and disagreements in decision-making, and broadly, effecting a change in corporate cultures, may go a long way in checking, or at least mitigating, the risk of WCC.

 

Former Judge and practising as an Independent Counsel, e-mail:  contact@bharatchugh.in.

1 Warren Buffet.

Case BriefsHigh Courts

Rajasthan High Court: Arun Bhansali, J., rejected a stay application that was filed aggrieved by the order of the Director, Mines demanding penalty, revoking sanction and passing debarring order against the petitioner.

It was submitted that the petitioner pursuant to the e-auction notification for collection of excess royalty and DMFT amount on masonry stone participated, being a petitioner was granted the contract and was required to fulfill the requirements as indicated successful bidder, However, on account of lockdown imposed due to COVID-19 pandemic, needful could not be done by the petitioner and he requested the respondents to grant time for fulfilling the requirements of the office wherein, he was required to do the needful within 15 days. Thus, the petitioner had sent a communication seeking extension of date for signing the agreement ‘without penalty’ which was responded to by the mining engineer who had asked to do the needful in 3 days along with the penalty. The petitioner again had asked for the waiver of penalty consequently the matter was forwarded to the Director, Mines for taking action under the provisions of Rule 45 of the Rajasthan Minor Mineral Concession Rules, 2017 (‘the Rules, 2017’). In the order passed by the Director the bid security amount was forfeited, the sanction was revoked and the petitioner was debarred from participating in the forthcoming auction.

The Court while rejecting the stay application explained that in the over all circumstances of the case where the formalities had to be completed in 15 days taking into consideration the effect of lockdown, and the prayer made by the petitioner seeking exemption from payment of amount of penalty was declined he was required to do the needful including payment of amount of penalty, the submission that as the communication was a recommendation only, the petitioner had no cause at that stage cannot be accepted inasmuch as insofar as the prayer made regarding exemption from payment of the amount of penalty is concerned stood rejected, which had provided cause to the petitioner. The Court added that the petitioner was not vigilant enough to seek his remedy in relation to the grievance as raised in the writ petition.[Bhaniyana Construction v. State of Rajasthan, 2020 SCC OnLine Raj 1386, decided on 30-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has dismissed an appeal against the Allahabad High Court order refusing to interfere in the matter relating to the regulation of fees structure in Universities and Central Institutions

The plea filed by a law student pursuing LLM at Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur seeking issuance of directions to the Ministry of Education and University Grant Commission for framing guidelines to regulate the fees structure considering the lack of unanimity in structuring fees resulting into institutions charging full fees even for online classes.

The petition states,

“the tuition fee which will be charged by the institution amid online semester is not arbitrary but the other miscellaneous fee charged is indeed arbitrary.”

The petition highlighted that IIT Kharagpur issued the official notification to its students for starting the online semester tentatively from the last week of August and uploaded the full fees for its students in their institute’s login id and had instructed it to be paid before 27th July 2020. The impugned notification demands all the requisite fees charged against all other facilities which are provided viz. electricity, computer, library, Wi-Fi/ internet, laboratory, mess etc which are in no manner going to be utilized by the student during this period.

The key points highlighted by the petitioner in the petition were:

  • the action of the institution by charging more fees without service will be against the principle of rule of law. Every State Action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being.
  • not providing any substantial guidelines will make the fee issues being unaddressed, resulting in charging more fees than expected, thereby leading to de-registration of students on non-payment of fees.
  • parents should not be made to pay for the services which have not been rendered by the schools. All schools, irrespective of whether they offered online classes during lockdown period or not, are only entitled to collect the tuition fee.
  • the salary of teaching and non-teaching staff should be paid even during the lockdown. The guidelines to be issued must be in consonance and proportionate with the salary to be paid to teaching staff and non-teaching staff.

The Supreme Court, however, refused to interfere in the matter and dismissed the SLP.

[Saransh Chaturvedi v. Union of India, special leave to appeal (c) no(s).10722/2020, order dated 25.09.2020]

COVID 19Legislation UpdatesStatutes/Bills/Ordinances

Salary, Allowances and Pension of Members of Parliament (Amendment) Bill, 2020

Which Act will the said Bill amend?

A Bill further to amend the Salary, Allowances and Pension of Members of Parliament Act, 1954.

Which Section will be amended with the passing of this Bill?

Amendment of Section 3

In the Salary, Allowances and Pension of Members of Parliament Act, 1954, in section 3, after sub-section (1), the following sub-section shall be inserted, namely:—

“(1A) Notwithstanding anything contained in sub-section (1), the salary payable to Members of Parliament under sub-section (1) shall be reduced by thirty per cent for a period of one year commencing from the 1st April, 2020, to meet the exigencies arising out of Corona Virus (COVID-19) pandemic.

Hence the said bill reduces the salary by 30% for a year.

Read the Bill here: BILL

As per news reports, the said bill has been passed by the Loksabha.


Lok Sabha

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and K.K. Tated, J., held that,

“price fixation is necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of persons, the processual basis of price fixation is to be accepted in the generality of cases to be valid.”

Petitioner challenged the notification issued by Principal Secretary to the Government of Maharashtra, Department of Public Health.

Petitioner stated that directions be issued to State of Maharashtra to provide

  • COVID treatment to all citizens of Maharashtra, totally free of cost in all hospitals including private hospitals
  • to notify uniform rates or charges for the treatment of patients of COVID in all the hospitals in Maharashtra
  • to provide 100% free treatment to COVID patients
  • to charge all the patients other than those suffering from COVID according to the Mahatma Jyotibha Phule Health Insurance Scheme, etc.

Petitioner adds to his submissions that it is the State’s duty and obligation to provide health and medicare services for all the citizens free of cost and that the State of Maharashtra has utterly failed to live up to the expectations of the people.

The above-mentioned notification does not tale into consideration the plight of a vast cross-section of people who are not in a position to afford private hospital treatment, for which State should take a step ahead and make arrangements of free treatment.

Persons not covered under any health insurance product were being charged exorbitantly causing hardship to the public in general.

80% of isolation beds available with any healthcare provider under the above-mentioned notification should be regulated by State Government/District Collectors/Municipal Commissioners and so also the 80% of non isolation beds. Healthcare providers, however, have been allowed to charge their rack rates to the remaining 20% beds.

Several measures, have been directed by the State to be adopted by private hospitals while treating patients infected by COVID as well as ailing from other diseases. Price caps have also been introduced.

In view of the above-stated, Bench stated that there is no compulsion on any citizen to take treatment from private facilities.

Adding to its conclusion, Court also stated that, it is entirely left to the option of the patient as to which of the facilities he would prefer, i.e., facilities in private or public hospitals.

There is also no discrimination between the rich and the poor. Even a rich and a poor person alike can take admission in the 80% reserved category of beds, and pay at the rate prescribed.

Bench also added that the price fixation brought about by the impugned is neither arbitrary or unreasonable.

To urge the Bench to direct the State to provide for treatment of a patient free of cost, in these circumstances, appears to be preposterous.

Petitioner has utterly failed to demonstrate any infringement of any fundamental right or abrogation of any statutory provision by the State so as to adversely affect any class of people, thereby warranting judicial intervention.

Court thus dismissed the PIL stating the same to be frivolous. Cost of Rs 5 lakhs imposed. [Sagar Shivajirao Jondhale v. State of Maharashtra, 2020 SCC OnLine Bom 717 , decided on 16-06-2020]