Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and MR Shah, JJ has stayed the Delhi High Court’s order holding the levy of IGST on oxygen concentrators imported as gifts for personal use violative of Articles 14 and 21 of the Constitution.

The Ministry of Finance had, through Attorney General K K Venugopal, had argued that on 28 May 2021, at the Forty-Third meeting of the GST Council, a decision was taken to constitute a Group of Ministers to scrutinize the need for “further relief to Covid-19 related individual items immediately”. The Group of Ministers is to submit its report by 8 June 2021.

“… the judgment of the High Court trenches upon a pure issue of policy.”

It was further argued that the exemption which has been granted in respect of the concentrators which are imported by the State or its agencies falls in a clearly distinct classification.

Issuing notice returnable after 4 weeks, the Court directed,

“Till the next date of listing, there shall be a stay of the operation of the impugned judgment and order of the High Court dated 21 May 2021.”

[Ministry of Finance v. Gurcharan Singh, Special Leave to Appeal (C) No.7226/2021, order dated 01.06.2021]


Also read our full report on the Delhi High Court’s order dated May 21, 2021:

Del HC | “I can’t breathe”; HC calls oxygen shortage a ‘George Floyd moment for the citizens’; holds imposition of IGST on oxygen concentrators imported by individuals, unconstitutional

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Chief Justice and Aravind Kumar J. gave a slew of directions regarding vaccine allocation, oxygen supply, food security and dignified burial of COVID dead bodies.

Issue 1: Delay in test result reporting

The Court taking stock of the situation in light of a recent incident where a staff of High Court died due to covid as the test result was not communicated to the deceased on time and hence he could not take treatment for COVID-19.

Directions:

  • State Government must initiate appropriate action in accordance with law against all concerned who are responsible for this lapse and place on record a report on the action taken on the next date.
  • State Government shall issue a direction to all the Laboratories to ensure that such incidents are not repeated and test reports are made available within 24 hours.

Issue 2: Vaccine Allocation

About 26, 00,000 beneficiaries in the State who have taken the first dose of COVISHIELD or COVAXIN have not received the second dose though it is overdue as per the prevailing norms of the Central Government. The total stock of vaccines available in the State is only 9, 37,780 of doses. Hence, there is no possibility of majority of 26, 00,000 beneficiaries getting the second dose which is already overdue. The situation which prevails today clearly shows that if all the available 9, 37,780 doses are to be used for administering the second dose, a substantial number of beneficiaries who have taken the first dose will not get the second dose.

The Court observed that there cannot be any distinction between the words ‘due’ and ‘overdue’ when it comes to administration of the second dose. Once as per the existing timelines, the second dose is due, it is an obligation of the Governments to ensure that the second dose is provided. If the second dose is not provided, it will be a violation of the fundamental rights of the citizens under Article 21 of the Constitution of India.

The Court further observed that If those who have taken the first dose are not administered the second dose on the respective due dates, apart from violation of the fundamental rights of the said citizens under Article 21 of the Constitution of India, if they are required to take the first dose again, it will be a huge national waste of the first dose already administered to them.

A mandatory direction to both the Governments regarding ensuring sufficient procurement of quantity of vaccine doses however was not issued in light of submission made by the Additional Solicitor General. It was stated that a decision on allocation of vaccine is likely to be taken and it was assured that the Central Government will make every endeavour to bridge the gap to ensure that no one is denied the second dose which has become due.

The sum and substance of the guidelines by the Central Government appears to be that the first priority of the State Government should be to provide vaccine to those who have taken the first dose.

“By way of an illustration, we may record here that if a person has taken the first dose of COVISHIELD more than eight weeks back, he must get priority over the person who has completed seven weeks from the date of taking the first dose of COVISHIELD. Thus, it is mandatory for the State Government to ensure that a rational and fair formula is adopted for giving second dose of vaccination.”

Directions:

  • State Government must abide by the said guidelines considering the desperate and critical situation created due to failure to administer second dose to about 20,00,000 citizens.
  • State Government shall place on record all the facts and figures (district-wise) regarding the second dose administered throughout the State

Issue 3: Food Security

The Government of India decided to allocate free of cost food grains at 5 Kgs, per person, per month to nearly 80 crore beneficiaries covered under the National Food Security Act, 2013 (NFSA) over and above NFSA Food grains for next two months i.e. May and June 2021 on the same pattern as the earlier “Pradhan Mantri Garib Kalyan Anna Yojana (PM-GKAY)”. Under this Special scheme (PM-GKAY) around 80 crore NFSA beneficiaries covered under both the categories of NFSA, namely Antyodaya Anna Yojana (AAY) and Priority Householders (PHH) will be provided with an additional quota of free of cost food grains (Rice/wheat) at a scale of 5 Kgs per person, per month, over and above their regular  monthly entitlements under NFSA.

There is an issue regarding implementation of the instant scheme which is being implemented through Indira Canteens throughout the State.

 Directions:

  • It is directed to both the Governments to take a call on the issue whether the benefits of Atma Nirbhara Scheme as applicable last year can be extended to those who are not holding a ration card of any State.
  • State Government shall also identify the vulnerable sections of the society who have been affected by the partial lockdown.
  • State Government shall take a decision immediately on the issue of restoring Dasoha helpline to know who are the persons who are deprived of the benefits of the scheme of the State Government of supplying cooked food as well as well as the scheme of the Central Government.

Highlights of the Report of the Monitoring Committee of the Karnataka State Legal Services Authority

There are two main issues which arise on the basis of the said report. These are as follows:

  • Compensation in Chamarajanagar District Hospital Tragedy

The Court relied on judgments Rudul Sah v. State of Bihar 1983 (4) SCC 141 and Nilabati Behera v. State of Orissa, AIR 1993 SC 1960 and observed “that in a public law remedy in the form of a petition under Article 226 of the Constitution of India, Writ Court can grant compensation for violation of the fundamental rights guaranteed under Article 21 of the Constitution of India.”

  • Responsibility for lapses

The Court observed that the Committee has found instances of tampering with the relevant record. The Court directed that “the record shall be retained in the custody of the Chief Secretary will continue to operate. Needless to add that either the Commissioner appointed under the Commission of Inquiry Act, 1952 or any Investigating Agency needs to look into the record, the Chief Secretary will make available the said record.”

Observations regarding Oxygen

“….it is for the State Government to immediately communicate the requirements of the State to the concerned Authority of the Central Government in view of the assurance recorded therein.”

Observations regarding Dignified Burial or Cremation

The Court observed

“….State Government permit burial of the body of a person who has died due to COVID-19 without obtaining a death certificate.””

The Court finally directed “the learned Advocate General or the learned Additional Advocate General convenes a meeting of the learned counsel appearing for the parties so that the issues regarding compliances can be discussed and a proper response is given on the next date”

[Mohammed Arif Jameel v. Union of India, 2021 SCC OnLine Kar 12301, decided on 13-05-2021]


Arunima Bose, Editorial Assistant has put this report together.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Shakdher and Talwant Singh, JJ., disposed of the petition which was filed in order to decide the constitutionality of imposition of IGST on the imported oxygen concentrators. The Court in its prologue said,

“This is a George Floyd moment for the citizens of this country. The refrain is ―I can’t breathe‖, albeit, in a somewhat different context and setting; although in circumstances, some would say, vastly more horrifying and ghastlier. Chased and riven by the merciless novel Coronavirus, the citizenry has been driven to desperation and despair.”

The petitioner was 85 years old and had approached the Court against the imposition of IGST on the import of the oxygen concentrator which had been gifted to him by his nephew. The petitioner asserted that the imposition of tax was discriminatory, unfair, and unreasonable and that it impinges upon his right to life and health. The clearance of the oxygen concentrator from the customs barrier required payment of IGST at the rate of 12%. It is relevant to note that before 01-05-2021, an individual importer would have had to pay IGST at the rate of 28% qua oxygen concentrator gifted to him for personal use.

The State had issued an impugned notification dated 01-05-2021 whereby IGST on oxygen concentrators imported by individuals for personal use, that are supplied free of cost, was scaled down to 12% and it further issued a notification dated 03-05-2021 whereby it exempted, completely, oxygen concentrators imported for the purpose of COVID relief from the imposition of IGST in cases, where the importer was the ―State Government or, any entity, relief agency or statutory body, authorised in this regard by any State Government” till 30-06-2021.

Major submissions made on behalf of the Amicus and the petitioner: –

  1. The interplay of provisions of The Customs Act, 1962 [Customs Act],The Customs Tariff Act, 1975 [CTA], The Goods and Services Tax Act, 2017[GST Act], and The Integrated Goods and Services Tax Act, 2017[IGST Act] allows for the imposition of Basic Customs Duty [in short ―BCD‖] and IGST on goods imported into the country at the rates stipulated in the CTA.
  2. The source of power to levy and collect IGST on imports is rooted in the explanation appended to Article 269A (1) of the Constitution.
  3. With the enactment of the GST Act, it is now possible to levy simultaneously both Central GST as well as State GST. Excluding 6 items, Central Sales Tax Act, 1956 [CST Act] stands substituted by the IGST Act. Article 246A(2) gives Parliament the exclusive power to levy GST on the supply of goods and services that takes place in the course of inter-state trade and commerce.
  4. Section 3(7) of the CTA which allows for levy of IGST on imported goods pegs the ceiling rate at 40%. The provision for valuation is provided under Section 3(8) and 3(8A) of the CTA. Section 3(12) contains the power for exempting, inter alia, the levy of IGST.
  5. Thus, in effect, from 01.07.2017, BCD is levied on imported goods under the Customs Act and IGST is leviable under Section 3(7) of the CTA read with Section 5 of the IGST Act.
  6. A perusal of the Mega Exemption Notification no. 50/2017, dated 30.06.2017, (which superseded notification 12/2012 dated 17.03.2012) [General Exemption no. 190‖] would show that qua several items where BCD is exempt or reduced, the IGST is nil. This has been a longstanding practice even prior to the issuance of Mega Exemption Notification.
  7. In the notification issued by Directorate General of Foreign Trade, Department of Commerce, Ministry of Commerce and Industry [in short ―DGFT‖], whereby oxygen concentrators were exempted from customs duty/BCD, IGST, via a separate notification, i.e., notification no. 30 of 2021 dated 01-05-2021 was reduced from 28% to 12% qua imports made for personal use. An exception was, however, made insofar as oxygen concentrators imported by a canalising agency was concerned. In such cases, vide notification no. 4 of 2021 dated 03-05-2021, complete exemption from IGST was granted, albeit, subject to certain conditions.
  8. Furthermore, a perusal of entry no. 607A1 of General Exemption no. 190 would show that complete exemption from BCD and IGST is granted for life-saving drugs/medicines imported for personal use which are supplied free of cost by overseas supplier.
  9. Oxygen concentrators would fall within the ambit of Entry no. 607A, Tariff Item no. 9804 of the General Exemption no. 190, as the definition of drugs as provided in Section 3(b) of the Drugs and Cosmetics Act, 1940 [in short ―Drugs and Cosmetics Act‖] would include medical equipment used for treating and preventing human disease. Furthermore, since an oxygen concentrator is, undoubtedly, a piece of life-saving equipment, it should not be subjected to the rigour of certification by officials, named in condition no. 104 stipulated against entry no. 607A.
  10. The impugned notification violates not only the right to health but also the right to human dignity which is interwoven in Article 21 of the Constitution.

Major submissions advanced on behalf of the State: –

  1. Since GST rates and general exemptions are notified based on the recommendations of the GST Council, the request received by the Government of India for extending GST exemptions qua COVID-19 related supplies shall be placed before the GST Council. The GST Council will consider the same and take steps having regard to the relevant factors and the situation prevalent in the country.
  2. The Government of India has provided considerable relief insofar as oxygen concentrators imported for personal use are concerned- BCD hasbeen reduced from 38.5% to nil while IGST has been scaled down from 28% to 12%. The reduction in the rate of IGST from 28% to 12% has been brought about for bringing about parity between oxygen concentrators imported for commercial purpose as against those imported for personal use.
  3. The decision to impose a tax and/or the fixation of the rate at which tax is to be imposed cannot be subjected to judicial review.
  4. The imposition of IGST on imported oxygen concentrators, which are gifted, and are for personal use, does not violate Article 21 of the Constitution. If this argument of the petitioner is accepted, it will lead to absurd consequences in as much citizens will attempt to seek exemption from property tax, and food items since both housing and food items have been considered as a facet of the right to life as encapsulated in Article 21 of the Constitution.

Analysis and Decision

The Court laid down some immutable ground rules to examine challenge laid to tax legislations and levying of tax in extraordinary times and formed main issues to be dealt with.

  1. Whether the State’s action, of imposing IGST on oxygen concentrators, which were directly imported by individuals, albeit free of cost, without the aid of a canalising agency runs afoul of Article 14 of the Constitution?
  2. Whether Article 21 of the Constitution, which includes the right to health and affordable treatment, would require the State to demonstrate that levy and collection of the impugned tax in times of pandemic, war, famine, floods, and such like conditions would subserve public interest?
  • Whether Article 21 of the Constitution, imposes on the State, a positive obligation to provide adequate resources for protecting and preserving the health and well-being of persons residing within its jurisdiction?
  1. What relief, if any, can be granted to the petitioner?

Issue 1

The Court found, The exclusion of individuals, such as the petitioner, from the benefits of the 03.05.2021 notification only because they chose to receive the oxygen concentrators as a gift, albeit directly, without going through a canalizing agency is, in our opinion, violative of Article 14 of the Constitution. While it is permissible for the State to identify a class of persons, to whom tax exemption would be extended, it is not permissible for the State to exclude a set of persons who would ordinarily fall within the exempted class by creating an artificial, unreasonable, and substantially unsustainable distinction.

Issue 2 &3

Exaction by the State, in the form of tax, in good and normal times, is, ordinarily, sustained by the Courts as they defer to the legislative wisdom that the imposition of the tax is for the greater good of the public; unless proved to the contrary. However, in times of peril, the Courts must examine the stand taken by the State to defend an action instituted to lay challenge to a tax – on anvil of Article 21 of the Constitution; as it is not the form but the impact of the tax which will determine its tenability. The Court said that in this context it must be said that there was a positive obligation on the State to take ameliorative measures so that adequate resources are available to protect and preserve the health of persons residing within its jurisdiction. The Court quoted from the Supreme Court verdict in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1,

“―495. The jurisprudence of this Court, in recognising the right to health and access to medical care, demonstrates the crucial distinction between negative and positive obligations. Article 21 does not impose upon the State only negative obligations not to act in such a way as to interfere with the right to health. This Court also has the power to impose positive obligations upon the State to take measures to provide adequate resources or access to treatment facilities to secure effective enjoyment of the right to health. [ Jayna Kothari, ―Social Rights and the Indian Constitution‖, Law, Social Justice and Global Development Journal (2004).]‖”

In the same vein, the notification dated 03-05-2021 exempts imposition of IGST on oxygen concentrators which are imported free of cost, albeit, via canalizing agency up until 30-06-2021. The State could have, if it intended to treat, persons who are similarly circumstanced as the petitioner, at par with those who fall within the sway of the notification dated 03-05-2021- extended the exemption to them as well and withdrawn the same once normalcy was restored.

Issue 4

The Court opined that a declaratory relief can be accorded, to the effect, that imposition of IGST on oxygen concentrators, imported as gifts, i.e., free of cost, for personal use, is violative of Article 14 of the Constitution on the ground that an artificial, unfair and unreasonable distinction has been drawn between persons, who are similarly circumstanced as the petitioner and those who import oxygen concentrators through a canalizing agency.

The logical sequitur of this would be that persons who are similarly circumstanced as the petitioner, i.e., those who obtain imported oxygen concentrators as gifts, for personal use, cannot also be equated with those who import oxygen concentrators for commercial use. Therefore, notification bearing no. 30 of 2021-Customs, dated 01-05-2021, will also have to be quashed.

The State had argued that the Court cannot issue a writ of mandamus directing the State to issue an exemption notification in favour of the petitioner or persons similarly circumstanced. The power to issue an exemption notification under Section 25 of the Customs Act is vested in the State however the Court was not prevented from judicially reviewing an exemption notification once it is issued by the State.

The Court concluded that imposition of IGST on oxygen concentrators which were imported by individuals and were received by them as gifts [i.e. free of cost] for personal use, was unconstitutional.

[Gurcharan Singh v. Ministry of Finance, 2021 SCC OnLine Del 2312 , decided on 21-05-2021]


 

Suchita Shukla, Editorial Assistant has put this report together 

For the petitioner: Mr Sudhir Nandrajog, Senior Advocate with Mr Siddharth Bambha, Mr Shyam D Nandan and Mr Chirag Ahluwalia

For the respondent: Mr Zoheb Hossain, Sr. Standing Counsel, Mr Arvind Datar, Senior Advocate as Amicus Curiae with Mr Rahul Unnikrishnan

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Mohammad Rafiq, CJ. and Atul Sreedharan, J., heard this interlocutory application filed by Mr Lakhan Sharma pursuant to an order dated 17-05-2021 passed by this Court in W.P. No.9405 of 2021 (Lakhan Sharma v. State of M.P.) thereby granting him liberty to intervene in Suo Motu Writ Petition No.8914 of 2020.

The petitioner in the aforesaid petition had made prayers which included directions to provide the recovered/seized Remdesivir injections for being distributed to general patients after obtaining approval from medical experts that they were fit to be used.

The Court allowed the current application considering that if not used timely, the Remdesivir injections would likely to go waste and directed the State authorities to get the seized Remdesivir injections tested through the State Forensic Science Laboratory or any other appropriate agency, to find out whether or not, the drugs, which have been seized, are genuine Remdesivir injections and to the extent the seized vials of the Remdesivir are found to be genuine, the Chief Medical & Health Officer of the concerned district would make an application before the appropriate Court for taking delivery of such seized drugs, which shall pass the required orders in that behalf, within a period of three days from the date of filing of the application, so that the medicine can be provided to needy patients before its expiry.

The Court further heard another interlocutory application which was filed by Mr Naman Nagrath, Amicus Curiae stating a list of ventilators were either lying uninstalled or unused in different parts of the State and most of them could not be used on account of non-availability of expert technicians.

Mr P.K. Kaurav, Advocate General submitted that out of 76 ventilators situated at Bundelkhand Medical College, Sagar, 70 ventilators have already been made operational and report from the Superintendent of the Government Hospital, Shahdol has already been called regarding 24 ventilators lying there. He submitted that efforts were being made to make all these ventilators functional in the entire State.

The Court directed that respondent-State shall place on record a report showing as to how many ventilators were obtained under the PM Cares Fund and how many are procured by the State Government on its own and how many of them are functional.

The Court in the next hearing i.e. 24-05-2021 asked the Advocate General to give specific response as to what the State Government proposes to do with regard to rationalization of the charges by the private hospitals and for fixation of the capping thereof.

[In Reference (Suo Motu) v. Union of India, 2021 SCC OnLine MP 935, decided on 19-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Presence : Mr Naman Nagrath, Senior Advocate with Mr Jubin Prasad, Advocate appeared as Amicus Curiae.

 Mr Purushaindra Kaurav, Advocate General, Mr Pushpendra Yadav, Additional Advocate General and Mr Swapnil Ganguly, Deputy Advocate General for the respondents/State along with Mr Mohammad Suleman, Additional Chief Secretary, Directorate of Health Services, Govt. of M.P. and Ms Chhavi Bhardwaj, Managing Director, National Health Mission, M.P.

Mr Jitendra Kumar Jain, Assistant Solicitor General and Mr Vikram Singh, Advocate for the Union of India.

 Mr Shivendra Pandey, Advocate for the respondent No.5 – Indian Medical Association.

Mr Shreyas Pandit, Advocate for the respondent No.8 – Madhya Pradesh Nursing Home Association.

 Mr A.M. Mathur, Senior Advocate assisted by Mr Abhinav P. Dhanodkar, Advocate for the intervenor/Shanti Manch Samiti.

 Mr Manoj Kumar Sharma, Advocate–President, High Court Advocates’ Bar Association, Jabalpur; Mr Shashank Shekhar Dugwekar, Mr Ajay Gupta; Mr. Sanjay Kumar Verma; Mr Sanjay K. Agrawal; Mr Ajay Raizada, Mr Rajesh Chand; Mr Anoop Nair; Mr Nikhil Tiwari; Mr Sampooran Tiwari; Mr Asheesh Poddar; Mr Gaurav Panchal; Mr Ashutosh Sharma; Mr Dinesh Kumar Upadhyay; Mr Zaki Ahmad; Mr Sunil Gupta; Mr Rahul Gupta; Mr Rohit Jain; Mr Aditya Dev; Mr Yash Sharma; and Mr Ashish Mishra; Advocates appeared for the respective intervenors.

Case BriefsHigh Courts

Jharkhand High Court: Taking into consideration the reason of urgency i.e., acute surge in Covid-19 pandemic from which people are suffering and dire need of Oxygen, the Division Bench of Ravi Ranjan, C.J., and Sujit Narayan Prasad, J., directed to release Oxygen cylinders which were lying in judicial custody in connection with various cases.

The AG, Mr. Rajiv Ranjan, had preferred this interlocutory application in which urgency had been shown for passing appropriate order for utilization of Oxygen cylinders which are lying in judicial custody in different districts in connection with various cases for the purpose of using those Oxygen cylinders to the persons who are suffering from Covid-19 pandemic and who are in need of Oxygen. The AG had urged that such Oxygen cylinders may be directed to be released in favour of concerned District Health Committee and once the situation will be normalized or there will no need of such Oxygen cylinders, the same will be returned to the concerned police station.

Opining that Oxygen cylinders are of prime importance in saving life of persons suffering from Covid-19 pandemic and that number of such Oxygen cylinders are lying in judicial custody in connection with various cases and if it would be released after imposing appropriate condition, no prejudice would be caused to the parties to the lis rather it will be more beneficial for the people at large, who are suffering from Covid-19 pandemic and further the State Government will be in better position in facilitating the treatment of persons who are suffering from Covid-19 pandemic and are in dire need of Oxygen, the Bench ordered to release the Oxygen cylinder(s) without prejudicing the right of the parties on following conditions:

  1. The District Health Committee of concerned district shall furnish an affidavit with an undertaking before the concerned court for release of such Oxygen cylinder(s).
  2. The undertaking shall contain all details of cylinder viz. quantity of oxygen or its weight etc. and further with specific undertaking that such cylinder would be returned within a period of three months or even earlier if it will be required by the Court.
  3. The Courts, where cases are pending shall pass necessary order by recording such undertaking furnished by the District Health Committee.
  4. The District Health Committee was further directed to ensure identification of such cylinders before release and further secure return of such Cylinder on “as is where is” basis.

Further, it was also directed that the Deputy Commissioner-cum of the District Health Committee concerned shall with consultation of Civil Surgeon of the respective district ensure efficacy of such cylinder(s) and only after testing its perfection it may be used in order to avoid any casualty.

Additionally, taking note of media report regarding precarious condition of Sadar Hospital and death of five patients there due to interruption in supply of Oxygen, the Bench stated,

It is very unfortunate that in the Sadar Hospital at Ranchi, as reported that five patients, who were suffering from Covid-19, have died due to interruption in supply of oxygen

Accordingly, the State was directed to conduct a detailed enquiry on the issue and fix accountability upon the erring person(s) and submit its report. Further, the AG was directed to apprise the Court by filing affidavit with respect to the arrangement made in the Sadar Hospitals of each and every district of the State as also the arrangement made at Medical College, Dhanbad, containing therein the details of beds supported with Oxygen, number of the doctors and para-medical staffs as also the position of oxygen in the said hospitals.

[Suo Motu v. State of Jharkhand, 2021 SCC OnLine Jhar 368, order dated 08-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioner: Rajendra Krishna, Advocate

For the State: Rajiv Ranjan, AG and Sachin Kumar, AAG-II

For the U.O.I.: Rajiv Sinha, A.S.G.I.

Case BriefsCOVID 19Supreme Court

Supreme Court: The bench of Dr. DY Chandrachud and MR Shah, JJ has dismissed the petition filed by the Central Government challenging the Karnataka High Court decision directing it to increase the cap on the supply of oxygen to the State of Karnataka with immediate effect to 1200 MT per day.

The High Court had also observed that depending upon the decision taken by the Union Government on the representation, the Court would consider passing further orders during the course of the next week on the quota of oxygen for the State of Karnataka.

Solicitor General Tushar Mehta had urged before the Court that the issue of allocation is of pan-India concern and allocations would become unworkable if directions are issued under Article 226 of the Constitution. Moreover, the Union Government was willing to engage with the State government and convene a meeting for resolving the demand of the State of Karnataka for the supply of oxygen.

The allocation for the State of Karnataka stood at 802 MTs prior to 30 April 2021 and has been increased to 856 MTs from 1 May 2021 and 965 MTs from 5 May 2021. The minimum requirement of the State, as projected by the State Government on 5 May 2021, was 1162 MT.

The Supreme Court noticed that the High Court had furnished adequate reasons for issuing a calibrated ad-interim direction.

“The direction of the High Court is evidently an ad-interim direction, subject to such calibration as would be necessitated after the State of Karnataka and the Union Government have mutually attempted to resolve the issue. The order of the High Court does not preclude a mutual resolution by the two governments, since the proceedings are still pending.”

The Court said that the order of the High Court was based on the need to maintain at least a minimum requirement as projected by the State Government until a decision on the representation is taken and the High Court is apprised.

[Union of India v. Mohammed Areef Jameel, 2021 SCC OnLine SC 377, order dated 07.05.2021]


For Union of India: Tushar Mehta and Aishwarya Bhati, ASG, Advocates Rajat Nair, Kanu Agrawal, Amit Mahajan, Prashant Singh B, Raj Bahadur Yadav, AOR Mr. Gurmeet Singh Makkar, AOR Mr. B. V. Balaram Das, AOR

For Respondents: Senior Advocates Sajan Poovayya and Devdutt Kamat, AOR Vikram Hegde and Anantha Narayana M.G, Advocates Hima Lawrence, Shantanu Lakhotia, Pratibhanu Kharolla, V.C. Shukla, Aditya Bhat, Anantha Mohan Rao, Ankit Verma.

Case BriefsCOVID 19Supreme Court

Supreme Court: With the number of COVID-19 cases skyrocketing and nation facing severe shortage of oxygen, leading to several deaths, the bench of Dr. DY Chandrachud and MR Shah, JJ has set up a 12-member National Task Force to formulate a methodology for the scientific allocation of oxygen to the States and UTs. 

(i) The methodology adopted by the Union Government for computing the requirement of oxygen of the States and Union Territories1 ; (ii) The need to manage available resources of oxygen to optimise their availability for the National Capital Territory of Delhi2 , which is dependent on: · An efficient supply chain; · Proper distribution of oxygen from the supply points to hospitals; and · Building buffer stocks of oxygen; and (iii) Actual availability of oxygen.

Why?

There is a need to ensure that the allotments of medical oxygen to the States and UTs is made on a scientific, rational and equitable basis. At the same time, it must allow for flexibility to meet unforeseen demands due to emergencies which may arise within the allocated territories.

An expert body consisting of renowned national experts with diverse experience in health institutions will provide a public heath response to the pandemic on the basis of a scientific approach.

The task force will,

  • formulate a methodology for the scientific allocation of oxygen to the States and UTs. The Union Government has made its suggestions on the possible names for inclusion in the composition of the Task Force, while leaving its final composition to the Court.
  • facilitate a public health response to the pandemic based on scientific and specialised domain knowledge.
  • enable the decision makers to have inputs which go beyond finding ad-hoc solutions to the present problems.
  • Provide the Union Government with inputs and strategies for meeting the challenges of the pandemic on a transparent and professional basis, in the present and in future.

“The likely future course of the pandemic must be taken into contemplation at the present time. This will ensure that projected future requirements can be scientifically mapped in the present and may be modulated in the light of experiences gained.”

Who?

The National Task Force will consist of the following members

(i) Dr Bhabatosh Biswas, Former Vice Chancellor, West Bengal University of Health Sciences, Kolkata;

(ii) Dr Devender Singh Rana, Chairperson, Board of Management, Sir Ganga Ram Hospital, Delhi;

(iii) Dr Devi Prasad Shetty, Chairperson and Executive Director, Narayana Healthcare, Bengaluru;

(iv) Dr Gagandeep Kang, Professor, Christian Medical College, Vellore, Tamil Nadu;

(v) Dr JV Peter, Director, Christian Medical College, Vellore, Tamil Nadu;

(vi) Dr Naresh Trehan, Chairperson and Managing Director, Medanta Hospital and Heart Institute, Gurugram;

(vii) Dr Rahul Pandit, Director, Critical Care Medicine and ICU, Fortis Hospital, Mulund (Mumbai, Maharashtra) and Kalyan (Maharashtra);

(viii) Dr Saumitra Rawat, Chairman & Head, Department of Surgical Gastroenterology and Liver Transplant, Sir Ganga Ram Hospital, Delhi;

(ix) Dr Shiv Kumar Sarin, Senior Professor and Head of Department of Hepatology, Director, Institute of Liver and Biliary Science (ILBS), Delhi;

(x) Dr Zarir F Udwadia, Consultant Chest Physician, Hinduja Hospital, Breach Candy Hospital and Parsee General Hospital, Mumbai;

(xi) Secretary, Ministry of Health and Family Welfare, Government of India (ex officio member); and

(xii) The Convenor of the National Task Force, who shall also be a member, will be the Cabinet Secretary to the Union Government.

The Cabinet Secretary may nominate an officer not below the rank of Additional Secretary to depute for him, when necessary.

The Task Force is at liberty to draw upon the human resources of the Union Government for consultation and information, including the following:

(i) A member of Niti Aayog to be nominated by the Vice-Chairperson;

(ii) Secretary, Ministry of Human Affairs;

(iii) Secretary, Department for Promotion of Industry and Internal Trade;

(iv) Secretary, Ministry of Road Transport and Highways;

(v) Director, All India Institute of Medical Sciences, New Delhi;

(vi) Director General, Indian Council of Medical Research, New Delhi;

(vii) Director General of Health Services; and

(viii) Director General, National Informatics Centre; and

(ix) Head, Centre for Development of Advanced Computing (C-DAC).

The concerned Secretaries shall be at liberty to nominate officers of the rank of Additional/Joint Secretary to depute for them.

What?

The terms of reference of the National Task Force shall be to:

(i) Assess and make recommendations for the entire country based on the need for, availability and distribution of medical oxygen;

(ii) Formulate and devise the methodology for the allocation of medical oxygen to the States and UTs on a scientific, rational and equitable basis;

(iii) Make recommendations on augmenting the available supplies of oxygen based on present and projected demands likely during the pandemic;

(iv) Make recommendations for the periodical review and revision of allocations based on the stage and impact of the pandemic;

(v) Facilitate audits by sub-groups within each State and UT inter alia for determining:

(a) whether the supplies allocated by the Union Government reach the concerned State/UT;

(b) the efficacy of the distribution networks in distributing supplies meant for hospitals, health care institutions and others;

(c) whether the available stocks are being distributed on the basis of an effective, transparent and professional mechanism; and

(d) accountability in regard to the utilisation of the supplies of oxygen allocated to each State/UT;

“The purpose of conducting audits is to ensure accountability in respect of the supplies of oxygen provided to every State/UT. The purpose is to ensure that the supplies which have been allocated are reaching their destination; that they are being made available through the distribution network to the hospitals or, as the case may be, the end users efficiently and on a transparent basis; and to identify bottlenecks or issues in regard to the utilization of oxygen. The purpose of the audit is not to scrutinise the decisions made in good faith by doctors while treating their patients.”

(vi) Review and suggest measures necessary for ensuring the availability of essential drugs and medicines;

(vii) Plan and adopt remedial measures for ensuring preparedness to meet present and future emergencies which may arise during the pandemic;

(viii) Facilitate the use of technology to ensure that the available manpower is optimised for implementing innovative solutions particularly in order to provide an outreach of expert medical care to rural areas;

(ix) Suggest measures to augment the availability of trained doctors, nurses and para-medical staff including by the creation of suitable incentives;

(x) Promote evidence based research to enhance effective responses to the pandemic;

(xi) Facilitate the sharing of best practices across the nation to promote knowledge about the management of the pandemic and treatment of cases; and

(xii) Generally, to make recommendations in regard to other issues of pressing national concern to find effective responses to the pandemic.

The Task Force is at liberty to formulate its modalities and procedure for working.

The Task Force may constitute one or more sub-groups on specialised areas or regions for assisting it, before finalising its recommendations.

 The Task Force may consider it appropriate to co-opt or seek the assistance of other experts within or outside government to facilitate its working, including in the following areas:

(i) Infectious disease modelling;

(ii) Critical care;

(iii) Clinical virology/Immunology; and

(iv) Epidemiology/Public health.

The Union Government and State Governments, Ministries, agencies and departments shall provide complete and real time data for facilitating the work of the Task Force as and when necessary. All private hospitals and other health care institutions shall co-operate with the Task Force.

When?

The Task Force will commence work immediately, taking up the pressing issue of determining the modalities for oxygen expeditiously within a 24 week. The tenure of the Task Force shall be six months initially. The Union Government shall provide all necessary assistance to the Task Force and nominate two Nodal Officers to facilitate its work. The Nodal Officers shall also arrange for logistics, including communication with the members and arranging the virtual meetings, of the Task Force.

Till the task force submits it’s recommendations, the Union Government shall continue with the present practice of making allocations of oxygen (as modified by the orders of this Court or the orders of the High Courts as the case may be).

The Union Government shall on receipt of the recommendations of the Task Force take an appropriate decision in regard to the allocation of oxygen and on all other recommendations.

[Union of India v. Rakesh Malhotra, 2021 SCC OnLine SC 375, order dated 06.05.2021]


For Petitioner: Tushar Mehta, SG and Aishwarya Bhati, ASG

For Respondent: Rahul Mehra, Senior Advocate and Rakesh Malhotra, in person

Amicus Curiae: Senior Advocates Jaideep Gupta and. Meenakshi Arora

Case BriefsCOVID 19High Courts

Punjab and Haryana High Court: The Division Bench of Rajan Gupta and Karamjit Singh, JJ., asked the governments Punjab, Haryana and Chandigarh to consider providing home delivery of oxygen cylinder for those patients who are on oxygen support at home to reduce the burden of health workers.

Factual Matrix of the Case

The Amicus Curiae, Mr. Khosla, had brought it to the notice of the Court that situation in Haryana had become extremely grim as its quota of oxygen had been reduced by 20 MT from the Panipat plant. Besides, the said plant had over heated and is, thus, not functioning at 100% capacity. The allocation of 70 MT made from Rourkela plant takes about four days to reach Haryana. He had further pointed out that one C.K. Birla Hospital, Gurugram has 17 critical patients in the hospital who are completely dependent on oxygen but hospital has supply left only till 3 PM that day. He further added that other hospitals must be facing the same difficulty.

Another apprehension expressed by the Amicus Curiae was that availability of beds in various Government and private hospitals is limited. Therefore, many patients had to stay at home for whom availability of oxygen support is not easy.

Observations and Directions by the Court

Regarding the assertion of State of Haryana and the State of Punjab that they be allowed to get oxygen from even one plant which is situated nearby and which can supply oxygen expeditiously, the Bench sought response from the Counsel for Central Government, Mr. Satya Pal Jain.

On the submission of Mr. Mittal that if timely supply of oxygen is not made, the situation is so critical that several lives may be lost in the State in next 24 hours, the Bench, in the light of order of the Supreme Court dated 30-04-2021 wherein direction had been given for creation of ‘buffer emergency stock’ with the collaboration of State and the Centre to avoid further loss of life, stated that,

“In case of crisis, however, State is at liberty to draw from the ‘buffer stock’ of oxygen created under orders of the Hon’ble Supreme Court dated 30.4.2021 in Suo Motu Writ Petition (Civil) No.3 of 2021.”

The Bench further directed that in case it is found that there is hoarding of any sort, the SDM concerned shall be at liberty to seek police help which shall come into action immediately and take action as the circumstances warrant. Observing that if proper oxygen supply is available to those patients who are on oxygen support at home, it would reduce the pressure on the Administration as well as on the Government and Private hospitals, the Bench directed the States to consider home delivery of oxygen cylinders preferably by Municipal Authorities as Health personnel are already overburdened. Further, the States of Punjab and Haryana were directed by the Court to make special arrangements on the same lines as UT, Chandigarh to ensure that oxygen is promptly supplied to the patients who are on oxygen support at home. For this purpose, dedicated telephone numbers shall be publicized by way of broadcast and on TV/Radio as well through the telephone companies. The Bench added,

“In case any report of disobedience of these orders is received by this court, it shall consider initiating punitive action.”

Similarly, the directions were also issued to the state governments to consider whether any such unused equipment is available in any other part of State to ensure that it is put to use in this emergent situation. Lastly, the Bench added,

“Needless to observe that this court expects that the necessary steps are taken at the earliest to ensure that there is no further loss of life due to paucity of oxygen in the State.”

[Rishi v. State of Haryana, 2021 SCC OnLine P&H 799, order dated 04-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Amicus Curiae: Sr, Adv. Rupinder Khosla with Adv. Sarvesh Malik

For the Applicants: Adv. Karan Bhardwaj and Adv. Sardavinder Goyal

For State of Haryana: AAG Ankur Mittal

For State of Punjab: AAG Vikas Mohan Gupta

For UT of Chandigarh: SSC Pankaj Jain with Adv. Jaivir Chandail and APP J.S. Toor

Mr. Anupam Gupta, Senior Advocate with

Case BriefsCOVID 19High Courts

Delhi High Court: The Division Bench of Rajiv Shadher abd Talwant Singh, JJ., addressed the instant petition challenging the imposition of Integrated GST (IGST) on import of oxygen concentrators for personal use as the Ministry had already exempted the same for commercial purposes.

The instant petitioner had impugned the notification no. 30/2021-Customs, dated 01-05-2021 issued by the Ministry of Finance, Government of India. The Bench stated,

“This writ petition represents one of those rare writ actions, whereby, a notification issued in the realm of a tax statute has been, inter alia, assailed under Article 21 of the Constitution.”

The Bench admitted that tax is an exaction by the State is well known and that its levy and collection does not encompass equity. However, the Bench added the petitioner has invoked Article 21 of the Constitution, which guarantees right to life due to pandemic.

Noticeably, IGST leviable on import of Oxygen Generators is 12 per cent till June 30, 2021, and prior to the May 1 Notification, it was 28% for personal use. The impugned notification had exempted imposition of IGST on oxygen concentrators imported by the State Government, or via any entity, relief agency or statutory body, authorised by the State Government till 30-06-2021.

In the light of the above, the Bench stated,

“Since the respondent has gone this far, it could move further, and extend the exemption, to even individuals, to enable them to obtain imported oxygen concentrators by way of a gift, albeit, without having to pay IGST.”

Hence, directions were issued to the Ministry of Finance to consider exempting IGST on imported oxygen concentrators for individuals as well for procuring it by way of gift for personal use.

[Gurcharan Singh v. Ministry of Finance, 2021 SCC OnLine Del 1918, order dated 05-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioner: Sr. Adv. Sudhir Nandrajog with Adv. Siddharth Bambha, Adv.
Shyam D Nandan and Adv. Chirag
Ahluwalia,

For the Respondents: ASG Chetan Sharma with SSC Zoheb Hossain

Case BriefsCOVID 19High Courts

Delhi High Court: The Division Bench comprising of Vipin Sanghi and Rekha Palli, JJ., addressed the issue regarding rising death toll due to Covid-19, scarcity of medical oxygen and unavailability of supply tankers in NCT of Delhi (NCTD). The Bench stated,

“We have been seeing for ourselves, day after day, how large and small hospitals, nursing homes and even individuals are running to us with SOS calls for supply of medical oxygen.”

Issues Raised by NCTD

  1. Amicus Curiae, Rajshekhar Rao had submitted that though the Central Government had revised the allocation of oxygen to GNCTD to 590MT, the allocation orders did not take into account the capacity of the supplier. And the suppliers had expressed their inability to supply allocated oxygen stock.
  2. Reportedly, certain States which were allocated higher amount of oxygen, are reportedly witnessing a dip in their oxygen demand and not lifting their total allocated supply, therefore, the Central Government should reconsider the issue of allocation of oxygen to States, allocation of oxygen by each supplier and rationalize allocation of oxygen tankers by factoring into account the real-time requirement of oxygen in various states on a regular basis shall be done.
  3. It was further requested that the Central Government be directed to take over all the tankers in the country as a national resource and thereafter, rationally deploy the them to meet the needs of all the States and Union Territories.
  4. The GNCTD had been earmarked from suppliers who are situated at a distance of 1200 to 1500 kms from Delhi, the Central Government be directed to explore other routes as suggested by the GNCTD to enable the GNCTD to receive the oxygen from the sources in a more organized and timely manner.

Emergency Buffer Stock of Oxygen

To meet the present demands of Oxygen in the NCT of Delhi, the Bench directed the Central Government to prepare a buffer stock of Oxygen of at least, 100 MT in the NCT of Delhi in collaboration with the GNCTD, to be used for emergency. The Bench observed that the Supreme Court has already issued directions to the Central Government, and the GNCTD to act in this regard by order dated 30.04.2021:

We have also seen the situation that has developed in the last 24 hours in Delhi where patients, including among them medical professionals, died because of the disruption of supplies and the time lag in the arrival of tankers. This deficit shall be rectified immediately by the Central Government by creating buffer stocks and collaborating with the States through the virtual control room on a 24 by 7 basis.

Thus, the Bench directed the Central Government to, in collaboration with the GNCTD set up a buffer stock of 100 MT of liquid medical oxygen (LMO) in the NCT of Delhi with the further directions to do the same within next 3 days. .  The Center government was also directed to share with the GNCTD the registration numbers of the Tankers allocated for it with their GPS trackers.

Crowd Management

Observing that there are long queues at the locations of the re-fillers and Liquid Oxygen being explosive there are possibility of life causing accidents, at the request of GNCTD the Bench seek response from the Center government within 2 days for deploying a dedicated force for the purpose of crowd management at the re-filling depots preferably, Central Para Military Forces, since they are adept in crowd management respond within two days.

Dissemination of Information

Observing that the general public is still not fully aware of the protocols, the Bench directed the ICMR and the Ministry of Health and Family Welfare, to look into expanding their reach and to disseminate information through WhatsApp and other print and audio-visual media regarding the aspects of COVID-19 protocol evolved by it, proper use of oxygen concentrators as well as cylinders, right time to seek medical attention and information about the concerning symptoms.

Supply of LMO

Taking note of the fact that GNCTD is still not receiving 700MT of liquid medical oxygen per day; even though the Supreme Court while passing its detailed order dated 30-04-2021, had directed compliance by the Union of India. The Bench rejected the submission of Mr. Sharma, counsel for Union Government that a compliance affidavit is being filed in the Supreme Court tomorrow. The Bench stated,

“We fail to understand what a compliance affidavit would do when, as a matter of fact, 700MT of liquid medical oxygen is not being delivered to Delhi on a daily basis. In fact, even the earlier allocated quantity of 490MT, which has been revised to 590 MT per day, has not been delivered for a single day.”

The Bench remarked that unfortunately, the heart-wrenching situation on the ground in Delhi  is something not present to the mind of the Central Government.  Rejecting the submission of Counsels for Union Government, Mr. Sharma and Ms. Bhati that the GNCTD is not entitled to receive 700MT of liquid medical oxygen in the light of the existing medical infrastructure, the Bench expressed,

It pains us that the aspect of supply of liquid medical oxygen for treatment of covid patients in Delhi should be viewed in the way it has been done by the Central Government.”

Lastly, a show cause notice was issued to the Central Government as to why contempt action should not be initiated for not only non-compliance of the order of this Court dated 01-05-2021, but also of the order passed by the Supreme Court dated 30-04-2021. To answer the said notice, the Union ministers Mr. Piyush Goyal and Ms. Sumita Dawra were directed to appear before the Court in the next hearing.

[Rakesh Malhotra v. NCT of Delhi and Balaji Medical And Research Center, 2021 SCC OnLine Del 1869, order dated 04-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioners: Sr. Adv. Sacchin Puri, with Adv. Praveen K. Sharma and
Adv. Dhananjay Grover

For the Union of India: SGI Tushar Mehta, ASG Chetan Sharma, CGSC Monika Arora, CGSC  Amit Mahajan, CGSC Anil Soni, CGSC Anurag
Ahluwalia, Adv. Shriram Tiwary, Adv. Amit Gupta, Adv. Akshay
Gadeock, Adv. Sahaj Garg and Adv. Vinay Yadav

For NCT of Delhi: Sr. Adv. Rahul Mehra, ASC Satyakam, Sr. Adv. Santosh
Tripathi, ASC Gautam Narayan, ASC Anuj Aggarwal, ASC Anupam Srivastava, Adv. Aditya P. Khanna, Adv. Dacchita Sahni, Adv. Ritika Vohra and Adv. Chaitanya Gosain