Case BriefsCOVID 19High Courts

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and Senthilkumar Ramamoorthy, J., addressed a few pertinent issues with respect to the COVID-19 pandemic.

“…the State of Tamil Nadu and the Union Territory of Puducherry have been able to manage the second surge of the pandemic and the worst, it is hoped, is over.” 

It was noted that there has been a slight fall in the number of COVID positive cases in the State of Tamil Nadu and UT of Puducherry, though the number of deaths has gone up in comparison to other States, the numbers are lowest in this State.

Oxygen Supply and Cyclone ‘Yaas’ 

It has also been stated that there is no clamouring for Oxygen, though the State apprehended that the 146 MT of daily oxygen from the eastern corridor is not being fully delivered on a regular basis as the same may be completely disrupted if the severe cyclone Yaas hits the east coast.

As per the State’s Health Secretary’s affidavit, Maharashtra has agreed to supply 20 MT of Oxygen and there is a hope that Centre has an alternative plan to ensure the supply of daily 519 MT of Oxygen to the State as allocated.

To the above concern, Additional Solicitor General assured the Court that the possible disruption due to the cyclone has been taken into consideration and the alternative arrangements may be indicated.

Beds in Hospitals

It has been noted that in private hospitals, rich and influential people are able to book a bed or an oxygenated bed without the patient in being need for the same, due to which the less fortunate are being denied beds, as beds in government hospitals appear to be all filled up.

COVID-19 Vaccine

Centre’s affidavit indicates the augmentation of the production of various manufacturing units. ASG informed the Court that as per the plan put in place by the Centre, 216 crore doses of vaccine should be available by the end of the year for all Indians to be fully vaccinated.

Awareness campaigns and like measures need to be undertaken to educate the citizens, particularly in the rural areas, to step forward and take the vaccine.

Superstitions and archaic beliefs practised in some communities stand in the way of scientific measures being implemented and there continues to be a resistance to accepting vaccination in certain sections of the society. Both the Centre and the State should take appropriate measures to allay the misgivings that may be harboured in such regard.

 Mucormycosis in the State

Mucormycosis cases are being subjected to a short supply of required drugs. To this, Centre has indicated that measures have been put in place to manufacture the drugs immediately and in bulk upon reducing the quantum of production of other medicines for the moment.

future allocation of vaccines for Tamil Nadu appears to be somewhat disappointing. 

Further, intervenors have suggested the prioritizing of personnel, delivering food, remaining healthcare workers, and even advocates and Judges who come into contact with litigants who should be vaccinated first when the vaccines supply in adequate.

Matters pertaining to COVID-19 shall appear next on May 27th, 2021 unless there is any urgency. [Suo Motu  v. Union Government of India, 2021 SCC OnLine Mad 1956, decided on 24-05-2021]

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 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 of Vipin Sanghi and Rekha Palli, JJ.,  asked Central Government to ensure supplies from all oxygen-producing plants to Delhi as per the allocation order.

When the matter was taken up on 21-04-2020, Court noted that about 200-250 MT of Medical Oxygen had been received during the day and till the time the order was passed.

It appeared that 140 MT of Medical Oxygen had been allocated to be supplied from the plant Air Liquide, Panipat was being obstructed by the local authorities.

NCT of Delhi’s position has turned precarious with several hospitals reporting either complete exhaustion of Oxygen, or depletion to the level that it may not last even for the next few hours.

Senior Advocate, Tushar Rao pointed out that Mrs Poonam Kalra who was in a serious condition had been asked by the U.K. Nursing Home to go to some other hospital, since the hospital was running out of oxygen. Similar position was noted in Aakash Hospital, Dwarka.

Court was informed that Panipat authorities were obstructing the lifting and transportation of oxygen from Air Liquide, Panipat.

Additional Secretary, Ministry of Home Affairs, Piyush Goel stated that the officials in the State of Haryana were persuaded to abide by the Allocation Order and the Order passed by Disaster Management Act on 22-04-2021. Yet, the position is unsatisfactory and obstructions appear to continue.

In view of the above, High Court directed the Central Government to peremptorily ensure strict compliance of the Allocation Order dated 21-04-2021, its own order passed on 22-04-2021 under the Disaster Management Act and Court’s order dated 21-04-2021.

Authorities concerned have also been directed to ensure strict compliance with the above-stated Orders. And in case the Orders will not be complied strictly, the same would be taken very seriously since the result of non-compliance would be grave loss of life.

Non-Compliance will also invite action for contempt of Court and criminal and penal action under the Disaster Management Act and under the Penal Code, 1860.

Centre shall also ensure the supplies from all the oxygen-producing plants, as per the allocation order, is made and transportation takes place without any hindrance.

Adequate security to be provided to the lorries transporting oxygen by the Central Government and for the said purpose a special corridor to be created for the immediate transportation of the oxygen. [Rakesh Malhotra v. GNCTD, 2021 SCC OnLine Del 1822, decided on 22-04-2021]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., directed the Delhi Govt. to work out the logistics of procuring the remaining quantity of oxygen which was claimed not to have been supplied out of the allocated 480 MT.

Additional Secretary, DPIIT, Ministry of Commerce and Industry, Sumita Dawra is the in-charge of allocation of medical oxygen to various States in the country in wake of ranging Pandemic.

She gave Bench the history of how industrial Oxygen got diverted from medical use since April, 2020. She also informed the Court about the decision taken on 20-04-2021to increase in allocation for use of medical Oxygen in the NCT of Delhi from 378 MT to 480 MT.

Senior Advocate for GNCTD, Mr Rahul Mehra stated that the NCT of Delhi received somewhere between 200-250 MT of Oxygen today, adding to this he submitted that there were obstructions in the receipt of said Oxygen and the same was delayed for that reason.

Mr Tushar Mehta, Solicitor General requested that the matter be adjourned and at the same time he assured the Court that Centre shall facilitate the supply of 480 MT of Medical Oxygen to Delhi and further assured that Central Government shall also ensure unobstructed and safe passage of the Medical Oxygen tankers to Delhi of the allocated Oxygen.

Bench taking the above statement of Mr Tushar Mehta on record hoped that emergent needs of various hospitals in Delhi including those run by petitioner would be met and no casualties are suffered on account of the discontinuing supply of Oxygen to seriously ill COVID patients, and other serious patients who require Oxygen for support till the matter is take up again.

Hence, Court directed GNCTD to immediately work out the logistics of procuring the remaining quantity which was claimed not to have been supplied out of the allocated 480 MT and the suppliers are directed to comply with allocation order issued by Centre and make supplies on an emergent basis.

During this late-night hearing of the Court, it was informed to the Bench that Oxygen supplies were received by Max Hospital, Patparganj, and Max Hospital, Shalimar Bagh.

Matter to be listed today. [Balaji Medical Research Centre v. Union of India, 2021 SCC OnLine Del 1827, decided on 21-04-2021]


Advocates before the Court:

For the Petitioner: Mr Sandeep Sethi Sr, Adv, Mr Mahesh Agarwal, Adv, Mr Rishi Agrawala, Adv, Mr Karan Luthra, Adv, Mr Ankit Banati, Advs

For the Respondents: Mr. Tushar Mehta, SGI, Mr. Chetan Sharma, ASG, Ms. Monika Arora, CGSC, Mr Anil Soni, CGSC

Mr Rahul Mehra, Sr. Advocate with Mr Satyakam, ASC, GNCTD

Mr Rajiv Nayar, Sr. Advocate with Mr Ajay Bhargav, Mr Aseem Chaturvedi, Mr Saurab Seth Advocates with Mr Siddharth Jain, Whole Time Director for M/s. INOX

Case BriefsCOVID 19High Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., while addressing the concerns arising out the COVID-19 pandemic, expressed that:

The lives of the people take priority over everything else.

Rahul Mehra, Senior Counsel, Central Government in its affidavit stated that though all efforts were made to file the affidavit on behalf of GNCTD, the same could not be completed and filed.

Bench perused the affidavit filed on behalf of the Central Government by Mr Rajender Kumar, Under Secretary, Ministry of Health and Family Welfare.

What all the affidavit has dealt with?

  • Availability of COVID Beds as made available by the Central Government in the NCT of Delhi.
  • Discloses that 500 ICU Bedded DRDO COVID Care Hospital be established in Delhi Cantt.
  • 250 ICU Beds have been operationalized by DRDO and another 250 beds shall be operationalized by 22-04-2021.
  • To provide 25 medical officers and 75 paramedics to this COVID Care Centre from Central Armed Paramilitary Forces.

VENTILATORS

Further, Centre has also called upon the States and UTs to provide their requirements for ventilators in the States, so as to consider the supply of ventilators as per the availability at the earliest. Adding to this, it was stated that as per the demand of the GNCTD, 763 ventilators have been supplied by the Government of India. In addition to that, Safdarjung Hospital has been provided with 105 ventilators, Ram Manohar Lohia Hospital with 5 ventilators, LHMC with 5 ventilators, Ayush Hospital with 2 ventilators, ESIC Hospital with 10 ventilators and the DRDO facility has been provided with 500 ventilators.

BEDS FOR COVID PATIENTS 

In Central Government-run hospitals, the availability of beds for COVID Patients is up to 1432 beds. Other hospitals and facilities – other than those detailed in the affidavit, 2105 beds have been made available by the Central Government in the NCT of Delhi and with the addition of these beds, the current COVID beds allocated stand at about 4091 bed.

It has been stated that the complete breakup of the above-stated COVID beds should be indicated along with the details of ICU/ Non-ICU beds, and beds with/without oxygen, and with/without ventilator in the affidavit to be filed by the Centre on 22-04-2021.

Rahul Mehra, Senior Counsel, Central Government submitted that the number of COVID Positive Patients at present in comparison to last year are four times, therefore Central Government should allocate more beds in its hospitals and facilities for COVID patients.

Roli Khare, Director, Ministry of Health and Family Welfare stated that the Central Government has been endeavouring to make more beds available. Presently it has been stated that the Central Government hospitals are occupied by non-COVID patients in need of critical care.

Central Government should urgently look to allocate more beds among their hospitals for COVID patients.

 Bench directed the Central Government to look into the aspect of bed allocation for COVID patients keeping in view the prevailing circumstances and report in this regard on 22-04-2021.

Availability of Medical Oxygen in the NCT of Delhi

Bench stated that the situation is alarming as the availability of Oxygen has dropped dramatically in the Hospitals.

Dr Nipun Vinayak, Joint Secretary, Ministry of Health and Family Welfare explained that the Department for Promotion of Industries and Internal (DPIIT) has been looking into the aspect of diversion of Oxygen from industrial use for medical use in view of the urgent need for oxygen.

He added that apart from industries, all others have been directed not to use the Oxygen so that the same could be made available for the medical use in the country.

Mr Mehra further submitted that there is grave dearth of medical oxygen in Delhi’s Hospitals and requirement according to him is 700 MT of medical oxygen per day. Adding to this, he stated that there is non-compliance of the order passed this Court whereby, M/s INOX was required to honor its contract with the GNCTD and Delhi Hospital to supply oxygen to Delhi.

Bench – Analysis & Decision

Bench called upon the Central Government to issue appropriate orders in respect of the Steel and Petro-Chemical industries, so that a balance can be maintained between the needs of the people at large – who are suffering from COVID and are serious, and the needs of the industries.

Looking at the number of COVID positive patients all over the country, and the pattern which is emerging with regard to the spread of the viral infection and the severity with which it is impacting people in different States and regions — Central Government is directed to review the allocation of oxygen on a dynamic basis.

Oxygen supply in some major hospitals has been informed to last only for 4-8 hours and since the need for oxygen is now, there should be no delay causing the loss of precious lives.

Central Government to make available oxygen to hospitals which are running out of their supplies, lest there is grave loss of life suffered by patients being treated thereat.

Notice of Contempt to be issued to M/s INOX for non-compliance of Court’s order and the Managing Director/Owner of M/s INOX to personally remain present.

Court is informed that the equipment for setting up RT-PCR test labs are imported, and medical equipment/ machines for which import orders have been placed, are being dealt with routinely at Customs Ports, hence it is essential that all such medical machines/ equipment’s, medicines, etc. which are imported should be handled and cleared at top priority by the Customs.

ICMR to give top priority for such clearances so that the RT – PCR Labs could be set up or expanded without any delay.

Central Government, and the ICMR, to review the form in which the information is required to be uploaded by the testing agencies, so as to reduce their burden and wastage of time, as this appears to be acting as a bottleneck in the matter of preparation of reports.

Adding more to the above directions, Bench directed the Central Government and its agencies to issue necessary directions to all the licensee and the Government should undertake to check on a regular basis to unearth all such cases of hoarding which is leading to scarcity of drugs in the market for the needy patients. Strict penal action should be taken against those indulging in such practices.

 Review the distribution of Remedesivir — Essential to maximise the efficient use of the said Drug

Central Government should dynamically review the distribution of Remedesivir in the States and Union Territories on a daily basis, on the basis of the need, assessed on the basis of the serious active Covid patients, who need to be administered the said Drug.

Centre should immediately reach out to the manufacturers/patent holders/licensees so as to forthwith ramp up the production capacities of all the medications essential for COVID treatment.

Manufacturers should be encouraged to ramp up their production on a war footing. Voluntary licenses to other entities should also be granted.

 As per reports, 44 lakhs vaccines have been wasted out of the 10 crores vaccines allocated to different States due to the restriction of age or category of people who are entitled to take the vaccine.

Wastage of even a single dose of vaccine, when the same is proving to be life–saving, would be a criminal waste.

Bench has been informed that each vial has 10 doses and once it is opened, it has to b either fully consumed or the remainder goes waste.

To the above, Court concluded this decision stating that:

It should be possible for the Government(s) to devise ways and means so as to register volunteers who may be below the age group of 45 years, and above the age of 18 years – who could be called upon to take the residual doses of vaccine, in case, there are doses left unutilised after, say, 05.00 P.M on each day. That would ensure that all the doses are fully utilised, and not wasted.

 Matter to be listed on 22-04-2021. [Rakesh Malhotra v. GNCTD,  2021 SCC OnLine Del 1811, decided on 20-04-2021]


Advocates before the Court:

For the Petitioner: In Person

For the Respondents: Mr Rahul Mehra, Sr. Advocate with Mr Satyakam, ASC, and Mr Chaitanya Gosain and, Advocate for GNCTD.

Mr Chetan Sharma, ASG with Ms Monika Arora, CGSC and Mr Shriram Tiwary, Advocate for R-3