Case BriefsCOVID 19High Courts

Himachal Pradesh High Court: A Division Bench of L. Narayana Swamy and Anoop Chitkara JJ., took stock of the situation and laid necessary directions.

The present petition has been filed as the Government of India has directed the State Governments to convert PHCs into 30 bedded ICU hospitals with oxygen facilities and therefore State Government is supposed to submit what steps have been taken to convert these PHCs into ICU hospitals with oxygen facilities.

The Court thus directed “the State Government to make submission as to what steps the State Government has taken to convert these PHCs into ICU hospitals with oxygen facilities.”

The Court further taking stock of the situation regarding RTPCR tests in the State observed if the RTPCR tests are not conducted in war footing i.e. more than twenty to thirty thousand per day then the fatalities will proportionately go higher and by the time the RTPCR test is conducted, the incubation period will exceed and that may go out of control of the Government. The Court held “the Government has again to accelerate its work in combating the COVID-19.”

On submission made by Mr. Ajay Vaidya that some makeshift hospitals with oxygen facilities having 1000 beds have been opened and thus the Court directed “decentralized opening of ICU beds by converting PHCs is of paramount importance.”

Ms. Sneh Bhimta submitted about non-availability of ICU beds in Kullu and Lahul & Spiti, the Court directed “State Government to make submission as to whether ICU beds are provided to the COVID patients in both the aforesaid areas.”[Court on its Own Motion v. State of HP, 2021 SCC OnLine HP 4683, decided on 25-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

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

Counsel for Union: Mr. Balram Sharma

Counsel for State: Mr.Ajay Vaidya

Counsel for the intervener: Mr.Bimal Gupta and Ms. Sneh Bhimta and Ms.Yogesh K. Chandel

Case BriefsCOVID 19High Courts

Punjab and Haryana High Court: Opining that extreme technicality in times of pandemic is deplorable and may lead to fatalities, the Division Bench of Jitendra Chauhan and Vivek Puri, JJ., allowed the petitioner to import the ventilators without further delay.

Noticing the urgency of the matter and the fact that the instant petition was filed on 15-06-2020 yet the grievance of the petitioner had not been addressed by the authorities, the Bench opined that,

“This extreme technicality in difficult times of Covid-19 pandemic is highly deplorable. In fact, the State ought to have facilitated import of the ventilators. Thousands of people, who are lying admitted, are not getting oxygen or ventilators, which is very vital for the treatment of Covid patients.”

The Bench stated that the oxygen and ICUs are required here and now. Any delay by the administration in providing the ventilators would definitely result into fatalities. In the circumstances, when the nation is witnessing huge number of deaths everyday and certain deaths had happened for want of ventilators, the denial of permission to import the ventilators by the administration was not in the interest of the patients. Hence, the Bench ordered that the import of ventilators in question be allowed without further delay if the same carry certification from the manufacturer.

However, in the larger interest of the patients and to ensure that the ventilators received are as per the specifications prescribed by the competent authority, the Bench directed the petitioner to inform within 24 hours after their receipt to the competent authority to inspect the same with regard to quality thereof. On receipt of such information, the competent authority was directed to depute official concerned to determine the factum that the ventilators are fit to be utilized. The Bench added, if the ventilators are found to be deficient as per the specifications laid down by the Union Government, it shall not be put to use. Further, the petitioner was directed to pay all duties admissible on such goods and to use the same only after the certification by the competent authority.[S.B. Medical Systems v. Union of India, 2021 SCC OnLine P&H 1066, Order Dated 28-05-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Sudhir Malhotra

For Union of India: ASGI SP Jain with Sr.Adv. Dheeraj Jain

For Respondent 4: Adv. Anshuman Chopra

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 BriefsHigh Courts

Rajasthan High Court: A Division Bench of Indrajit Mahanty and Vinit Kumar Mathur JJ. laid down important directions regarding COVID.

The present order entails important directions laid down by the Court which are as follows:

  1. State is directed to make available the position of beds on their website on a “Real Time Basis”.
  2. The projection of vacancies of the beds may be reflected immediately on the portal without sticking to the time schedule of three times a day.
  3. The State Government as well as Central Government are directed to ensure the adequate supply of oxygen and other medicines required to deal with the situation in the State of Rajasthan on war footing.
  4. The supply of oxygen and medicines should be ensured in the Government hospitals as well private hospitals without their being any distinctions.
  5. The competent authorities of the State Government are directed to supply the medicines in particular Remdesivir injection on receipt of the requisition urgently and not later than two hours.
  6. State Government is also directed to explore the possibility of operation of oxygen generation plants in the State, which are not in operation but the same are capable of producing oxygen, forthwith, including the one located at Mahatama Gandhi Hospital at Jodhpur.
  7. The State Government is also directed to consider taking the services of final year students as well as PG courses students of MBBS/Post Graduation for the doctors and likewise for the nursing staff for their deployment on the emergent basis if they are suitable in all respects to serve the general public at large
  8. State Government shall ensure compliance of this order and file affidavit to this effect before the next date including the details about the sourcing of oxygen and other medicines for the treatment of COVID.

In view of the above, matter is listed for 06-05-2021

[Surendra Jain v. State of Rajasthan, D.B. Civil Writ Petition No. 6814/2021, decided on 04-05-2021]


Arunima Bose, Editorial Assistant has put this report together

Counsel for the petitioner: Mr. Kshmendra Singh

Counsel for the respondent: Mr. Karan Singh Rajpurohit and Mr. Mukesh Rajpurohit

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., slammed center government for its reckless attitude towards upsurging issue of non-availability of medical oxygen. The Bench came down heavily on center government and warned,

“The allocation to Delhi, which was earlier of 480 MT (since 20-04-2021), and now is of 490 MT has not been fulfilled even for a single day. In case, this order is not implemented…we make it clear that we may even consider initiating Contempt Proceedings in case of non-compliance.”

During the hearing, Dr. S. Bankata, Executive Director from Batra Hospital informed the Court that there was a delay in supply of Oxygen due to which Oxygen supply was interrupted for about an hour and a half, which had led to loss of 8 lives, including a doctor of the said hospital.

Similarly, counsel for NCT Delhi, Sr. Adv. Rahul Mehra had informed the Court that on the day of hearing itself, at 03:05 P.M. he had received an SOS message from Mr. Bidhuri, who is the officer tasked with the job of ensuring supply to hospitals in Delhi, that the reserves of the GNCTD were exhausted, and there was no supply/ minimal supply from the plants of Linde and Air Liquide. The senior counsel had expressed serious concerns over how the Capital would tide over the shortage for the day as a lot of hospitals and nursing homes had either run out of medical Oxygen, or would do so in the coming few hours.

Assessing the gravity of the matter, the Bench directed Central Government to ensure that NCT of Delhi receives its allocated supply of 490 MT positively today, by whatever means. The Bench added, considering the fact that Delhi is not an industrial State, and does not have availability of cryogenic tankers of its own which could be requisitioned under the Disaster Management Act, it falls upon the Central Government to arrange the tankers as well, so that the allocation made to Delhi could be fulfilled. The Bench ordered,

“The Central Government shall ensure availability of cryogenic tankers as well for the said supply.”

The Bench further observed that the allocation to Delhi, which was earlier of 480 MT (since 20-04-2021), and now is of 490 MT has not been fulfilled even for a single day. Hence, it warned the center government to face legal actions if the order is not implemented. Considering the harum-carum attitude of center towards Covid crises in the country the Bench made it mandatory for the concerned officers of the Central Government viz. Mr. Piyush Goyal and Ms. Sunita Dawra during the hearing on 03-05-2021. The Bench further made it clear that if the government does not wake up and comply with the directions of the Court it may even consider initiating Contempt Proceedings against it. Lastly, CGSC Mr. Amit Mahajan was directed to  ensure communication of the Order to the concerned officers.

[Rakesh Malhotra v. NCT of Delhi, 2021 SCC OnLine Del 1867, order dated 01-05-2021]


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

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]

Case BriefsCOVID 19High Courts

9-key points from the observations by Delhi High Court decision on essential drugs, dearth of oxygen and vaccine:

  • Centre to review the allocation of oxygen on a dynamic basis.
  • Hospital that are running out of their supplies of oxygen, Centre to make the availability.
  • Notice of contempt to M/s INOX for non-compliance with this Court’s Order.
  • Medical Machines/Equipment’s, medicines, etc. that are imported should be handled and cleared at top priority.
  • Centre and the ICMR, to review the form in which the information is required to be uploaded by the testing agencies, to reduce their burden and wastage of time, as this appears to be acting as a bottleneck in the matter of preparation of reports.
  • Central Government & its agencies to issue necessary directions to all the licensee and Government should undertake to check on a regular basis to unearth all such cases of hoarding which are leading to scarcity of drugs for needy patients | Strict Penal Action.
  • Centre to review the distribution of Remedesivir Drug daily.
  • Manufacturers to be encouraged so as to ramp up their production on a war footing of all essential medications for COVID treatment.
  • Criminal Waste: If even a single dose of vaccine is wasted, it would amount to criminal waste. | Government to devise ways for registering volunteers below the age of 45 and above the age of 18 to take residual doses of vaccine.

[Rakesh Malhotra v. GNCTD, 2021 SCC OnLine Del 1811, decided on 20-04-2021]


Delhi HC on status of availability of COVID Beds, supply of ventilators, need of medical oxygen and essential medications || “Wastage of a single dose of vaccine is a criminal waste”

COVID 19Hot Off The PressNews

It has come to the knowledge of the Union Health Ministry that few States are trying to curb the free inter-State movement of oxygen supplies by exercising provisions under various Acts and also mandating the manufacturers/suppliers located in the State to restrict their oxygen supplies to only the hospitals of the State.

In view of this, the Health Ministry has reiterated the critical importance of Oxygen in hospitals for management of critical COVID patients. In a letter written to the States/UTs, Union Health Secretary has emphasised that availability of adequate and uninterrupted supply of medical oxygen is an important pre-requisite for managing moderate and severe cases of COVID-19.

The Health Secretary has urged the States/UTs to ensure that no restriction is imposed on the movement of medical oxygen between them. It has been strongly reinforced that it is every State’s responsibility to ensure that every hospitalized COVID patient receives oxygen.

It has been again brought to their notice that medical oxygen constitutes an Essential Public Health Commodity and any impediment in the supplies of medical oxygen in the country may critically impact the management of patients suffering from COVID-19 disease in other parts of the country. Moreover, some of the major oxygen manufacturers/supplies already have existing supply agreements with hospitals in various states with a legal obligation to fulfill such agreements.

The Centre-led COVID management strategy is based on Standard of Care Treatment Guidelines. These Guidelines have ensured a uniform and standardised quality of medical care in all the COVID facilities, including hospitals. For moderate and severe cases, adequate oxygen support, appropriate and timely administration of anti-coagulants and widely available and inexpensive corticosteroids, in accordance with the protocol, can be considered to be the mainstay of COVID-19 therapy.

An adequate supply of oxygen throughout the country has enabled effective clinical care of the hospitalised moderate and severe cases, in conjunction with other measures. The adopted host of strategies have actively resulted in rising Recovery Rate and steadily declining Case Fatality Rate (1.67% currently).  As on date, less than 3.7% of active patients are on oxygen support.


Ministry of Health and Family Welfare

[Press Release dt. 11-09-2020]