Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a significant case where a widow whose husband died due to adverse effects of Covid-29 immunization had approached the Court seeking compensation for herself and her children, V.G. Arun, J., directed the National Disaster Management Authority (NDMA) to formulate policy/guidelines for identifying cases of death due to after-effects of Covid-19 vaccination and for compensating the dependants of the victim. The Court remarked,

“Sitting in this jurisdiction, I have come across at least three cases where pleadings are to the effect that the person who had undergone Covid-19 immunization vaccination had succumbed to the after-effects of vaccination.”

On being informed by the Assistant Solicitor General that there is no policy of the Central government for compensating the victims of adverse events, following Covid-19 vaccination, the Court expressed,

“Even if the numbers are very few, there are instances where persons are suspected to have succumbed to the after-effects of immunization.”

Hence, opining that, in such circumstances, NDMA and Ministry of Health and Family Welfare, Union of India are bound to formulate a policy for identifying such cases and compensating the dependants of the victim, the Court directed NDMA to formulate policy/guidelines for identifying cases of death due to the after-effects of Covid-19 vaccination and for compensating the dependants of the victim.

The Court emphasized that the needful in this regard shall be done as expeditiously as possible and at any rate, within three months. The matter is posted after three months.

[Sayeeda K.A. v. Union of India, 2022 SCC OnLine Ker 4514, decided on 01-09-2022]


Advocates who appeared in this case :

M/S. Prabhu K.N. & Manumon A., Advocates, for the Petitioner;

Assistant Solicitor General, for the Union of India.


*Kamini Sharma, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: In a case alleging death of two young girls due to side-effect of Covishield, the Division Bench comprising Dinesh Maheshwari and Bela M. Trivedi, JJ., issued notice to the respondents including Central Government and Central Drugs Standard Control Organization, and the Indian Council of Medical Research.  

The petitioner submitted that her 18-years-old daughter received first dose of Covishield Covid-19 vaccine on 29-05-2021 and lost her life on 19-06-2021. Similarly, 20-years-old daughter of petitioner 2 received the first dose of Covishield Covid-19 vaccine on 18-06-2021 and she lost her life on 10-07-2021. Both the petitioners alleged that after vaccination, the deceased girls suffered from severe Adverse Effects Following Immunization (AEFI).  

Though the petitioners had made representations to the authorities concerned, it had not been adequately replied and the only response from Senior Manager, Clinical Research and Pharmacovigilance Department, Serum Institute of India Pvt. Ltd., Pune was: 

  • “The Covid-19 infection was considered as the cause of Multisystem Inflammatory Syndrome;  
  • That Covishield does not contain SARSCoV-2 virus and cannot cause Covid-19 infection; and  
  • That vaccine is not known to cause Multisystem Inflammatory Syndrome.” 

Hence, the petitioners have prayed for the issuance of a writ of mandamus or any other appropriate writ, order, or direction appointing an expert medical board, independent of the Government, to forthwith inquire into and investigate the deaths of the daughters of petitioners, and to share the report of the autopsy and investigation with the petitioners in a time-bound manner. Further, the petitioners have also prayed for a direction to the above-appointed expert medical board to prepare a protocol for early detection of and timely treatment for the AEFI due to the Covid-19 vaccine such as the ones that led to the deaths of the daughters of petitioners.  

The petitioners also sought for appropriate order directing the Respondents to grant significant monetary compensation to the petitioners, which will be donated to organizations working on social issues.  

The Court opined that though it is appropriate to relegate the petitioners to the appropriate regular remedies in such cases, because the matter might involve the determination of certain basic questions of fact so as to bring it within the four corners of a case of medical negligence, however, having regard to the post-mortem report filed with the additional documents, the submissions that the Government has not responded to the petitioners’ representations, and the nature of reliefs claimed, the Court issued notice to the respondents to file a reply.  

[Rachana Gangu v. Union of India, W.P. (C) No(s). 1220 of 2021, decided on 29-08-2022]  

Appearance: 

For Petitioner(s): Colin Gonsalves, Sr. Advocate, Hetvi Patel, Advocate, and Satya Mitra, AOR 

*Kamini Sharma, Editorial Assistant has put this report together.  

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Slug: Covishield-death-by-side-effect-serum-institute-supreme-court-issues-notice-legal-news-legal-updates-pandemic  

Case BriefsSupreme Court

Supreme Court: In a landmark ruling on COVID-19 vaccination drive, the bench of L. Nageswara Rao* and BR Gavai, JJ has held that bodily integrity is protected under Article 21 of the Constitution of India and no individual can be forced to be vaccinated.

The Court, however, cautioned that,

“This judgment is not to be construed as impeding, in any manner, the lawful exercise of power by the executive to take suitable measures for prevention of infection and transmission of the virus in public interest, which may also take the form of restrictions on unvaccinated people in the future, if the situation so warrants. Such restrictions will be subject to constitutional scrutiny to examine if they meet the threefold requirement for intrusion into rights of individuals.”

The ruling came in the writ petition wherein the Petitioner highlighted the adverse consequences of emergency approval of vaccines in India, the need for transparency in publishing segregated clinical trial data of vaccines, the need for disclosure of clinical data, lack of transparency in regulatory approvals, minutes and constitution of the expert bodies, imperfect evaluation of Adverse Events Following Immunisation (AEFIs) and vaccine mandates in the absence of informed consent being unconstitutional. The Petitioner further stated in the Writ Petition that coercive vaccination would result in interfering with the principle of informed self-determination of individuals, protected by Article 21 of the Constitution of India.

Is the Vaccination Drive Arbitrary?

On the basis of substantial material reflecting the near-unanimous views of experts on the benefits of vaccination in addressing severe disease from the infection, reduction in oxygen requirement, hospital and ICU admissions, mortality and stopping new variants from emerging, the Court was satisfied that the current vaccination policy of the Union of India is informed by relevant considerations and cannot be said to be unreasonable or manifestly arbitrary.

Personal autonomy and public health

  1. Bodily integrity is protected under Article 21 of the Constitution of India and no individual can be forced to be vaccinated.
  2. Personal autonomy of an individual involves the right of an individual to determine how they should live their own life, which consequently encompasses the right to refuse to undergo any medical treatment in the sphere of individual health.
  3. Persons who are keen to not be vaccinated on account of personal beliefs or preferences, can avoid vaccination, without anyone physically compelling them to be vaccinated. However, if there is a likelihood of such individuals spreading the infection to other people or contributing to mutation of the virus or burdening of the public health infrastructure, thereby affecting communitarian health at large, protection of which is undoubtedly a legitimate State aim of paramount significance in this collective battle against the pandemic, the Government can regulate such public health concerns by imposing certain limitations on individual rights that are reasonable and proportionate to the object sought to be fulfilled.

Restrictions on unvaccinated persons and impeding their right to access public resources

Neither the Union of India nor the State Governments produced any material to justify the discriminatory treatment of unvaccinated individuals in public places by imposition of vaccine mandates.

“No doubt that when COVID-19 vaccines came into the picture, they were expected to address, and were indeed found to be successful in dealing with, the risk of infection from the variants in circulation at the time. However, with the virus mutating, we have seen more potent variants surface which have broken through the vaccination barrier to some extent.”

Hence, the restrictions on unvaccinated individuals imposed through vaccine mandates cannot be considered to be proportionate, especially since both vaccinated and unvaccinated individuals presently appear to be susceptible to transmission of the virus at similar levels.

It has, hence, been directed that till the infection rate and spread remains low, as it is currently, and any new development or research finding comes to light which provides the Government due justification to impose reasonable and proportionate restrictions on the rights of unvaccinated individuals in furtherance of the continuing efforts to combat this pandemic, all authorities in the country, including private organisations and educational institutions, should review the relevant orders and instructions imposing restrictions on unvaccinated individuals in terms of access to public places, services and resources.

Non-disclosure of segregated clinical trial data in public domain

The results of Phase III clinical trials of the vaccines in question have been published, in line with the requirement under the statutory regime in place, the GCP guidelines and the WHO Statement on Clinical Trials. The material provided by the Union of India, comprising of minutes of the meetings of the SEC, do not warrant the conclusion that restricted emergency use approvals had been granted to COVISHIELD and COVAXIN in haste, without thorough review of the relevant data. Relevant information relating to the meetings of the SEC and the NTAGI are available in public domain and therefore, challenge to the procedures adopted by the bodies while granting regulatory approval to the vaccines on the ground of lack of transparency cannot be entertained.

However, subject to the protection of privacy of individual subjects and to the extent permissible by the 2019 Rules, the relevant data which is required to be published under the statutory regime and the WHO Statement on Clinical Trials shall be made available to the public without undue delay, with respect to the ongoing post-marketing trials of COVAXIN and COVISHIELD as well as ongoing clinical trials or trials that may be conducted subsequently for approval of other COVID19 vaccines / vaccine candidates.

Monitoring of Adverse Events Following Immunisation (AEFIs)

The Court refused to accept the sweeping challenge to the monitoring system of AEFIs being faulty and not reflecting accurate figures of those with severe reactions or deaths from vaccines.

“The role of the Pharmacovigilance Programme of India and the CDSCO, as elaborated upon by the Union of India, collates and studies previously unknown reactions seen during monitoring of AEFIs at the time of vaccine administration and we trust the Union of India to ensure that this leg of the AEFI surveillance system is not compromised with, while meeting the requirements of the rapid review and assessment system followed at the national level for AEFIs.”

Information relating to adverse effects following immunisation

Information relating to adverse effects following immunisation is crucial for creating awareness around vaccines and their efficacy, apart from being instrumental in further scientific studies around the pandemic.

Recognising the imperative need for collection of requisite data of adverse events and wider participation in terms of reporting, the Union of India has been directed to facilitate reporting of suspected adverse events by individuals and private doctors on an accessible virtual platform. These reports shall be made publicly accessible, without compromising on protecting the confidentiality of the persons reporting, with all necessary steps to create awareness of the existence of such a platform and of the information required to navigate the platform to be undertaken by the Union of India at the earliest.

Paediatric vaccination

The decision taken by the Union of India to vaccinate children in India is in tune with global scientific consensus and expert bodies like the WHO, the UNICEF and the CDC and it is beyond the scope of review for this Court to second-guess expert opinion, on the basis of which the Government has drawn up its policy.

Keeping in line with the WHO Statement on Clinical Trials and the extant statutory regime, the Court directed the Union of India to ensure that key findings and results of the relevant phases of clinical trials of vaccines already approved by the regulatory authorities for administration to children, be made public at the earliest, if not already done.

[Jacob Puliyel v. Union of India, 2022 SCC OnLine SC 533, decided on 02.05.2022]


*Judgment by: Justice L. Nageswara Rao


Counsels

For Petitioner: Advocate Prashant Bhushan,

For UOI: Solicitor General Tushar Mehta

For Respondent No. 4: Senior Advocate S. Guru Krishnakumar

For Tamil Nadu: Additional Advocate General Amit Anand Tiwari

For Maharashtra: Advocate Rahul Chitnis

For Madhya Pradesh: Advocate Mrinal Gopal Elker,

For Respondent no. 5: Advocate Shyel Trehan

Case BriefsCOVID 19High Courts

Rajasthan High Court: The Division Bench of Sangeet Lodha and Vinit Kumar Mathur, JJ., disposed off a petition with directions which was filed  seeking directions to the respondents to facilitate COVID-19 vaccination for transgenders of the State of Rajasthan.

Counsel appearing for the petitioners, Mr Pushkar Taimni submitted that the Government of India had already issued guidelines for vaccination of transgenders, which were not being adhered to by the State Authorities.

The Court directed the State to look into the guidelines already issued by the Government of India vide order dated 20-05-2021and take appropriate steps for vaccination of the transgenders.[Sambhali Trust v. State of Rajasthan, D.B. Civil Writ Petition No. 10663 of 2021, order dated: 07-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsCOVID 19High Courts

Meghalaya High Court: The Division Bench of Biswanath Somadder, CJ. and H.S. Thangkhiew, J. heard a PIL which was filed with two primary issues. The first issue was with regard to the mandatory vaccination which was dealt by the order dated 23-06-2021. The other issue was with regard to the method of implementation of the Government Welfare Schemes meant for the marginalized section of the society in the State of Meghalaya.

The Court was informed by the Registry that the Secretaries of the District Legal Services Authorities have prepared extensive reports; a summary whereof shall be forwarded by the Registry to the Advocate General and the concerned authority of the State of Meghalaya so that they can respond to the same on the next date.

The Court observed that in respect of the vaccination policy presently adopted by the State of Meghalaya and particularly in remote villages, there were eligible persons who cannot be vaccinated simply because they do not possess any AADHAAR Card.

The Court thus requested the State not to insist on production of AADHAAR Card as the only proof of identity since there were other recognised options available to citizens of India to present their proofs of identity.[Registrar General v. State of Meghalaya, PIL No.6 of 2021, decided on 24-08-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Nani Tagia, J., stayed the order of the State Executive Committee of Arunachal Pradesh whereby non-vaccinated persons for Covid-19 were being discriminated for the purpose of permit to enter the State for developmental works in both public and private sector.

Covid-19 Vaccination:  Whether Mandatory or Voluntary?

The petitioner contended that as per the RTI Information furnished by the Ministry of Health & Family Welfare, which is available on the Ministry’s website, Covid-19 vaccination is not mandatory but voluntary. The petitioner also referred to an answer given on 19-03-2021 in the Lok Sabha to an Unstarred Question No. 3976 by the Minister of State in the Ministry of Health & Family Welfare stating that there is no provision of compensation for recipients of Covid-19 Vaccination against any kind of side effects or medical complication that may arise due to inoculation. The Covid-19 Vaccination is entirely voluntary for the beneficiaries. The petitioner contended that the impugned order had interfered with the fundamental rights granted under Article 19 (1) (d) of the Constitution.

Analysis by the Court

Vide Clause 11 of the Order dated 30-06-2021, issued by the Chief Secretary cum Chairperson-State Executive Committee, Government of Arunachal Pradesh, vaccinated and unvaccinated persons for Covid-19 virus had been classified into two groups for the purpose of issuing temporary permits for developmental works in both public and private sector. Clause 11 of the Order reads as under:

“11. Tourist ILPs shall remain suspended during the period of this order, however for developmental works in both public and private sector; temporary permits may be issued provided such persons are vaccinated for COVID 19.

While persons who were vaccinated for Covid-19 had been allowed to be issued with a permit to visit Arunachal Pradesh, persons who were not vaccinated with Covid-19 vaccine had not been allowed to be issued with a temporary permit to visit Arunachal Pradesh for developmental works in both public and private sector. The Bench stated that the right granted under Article 19 (1) (d) of the Constitution to move freely throughout the territory of India is not absolute and the State may impose reasonable restrictions either in the interest of the general public or for the protection of the interest of the Scheduled Tribe. However, such restrictions must be a reasonable one conforming to the requirement of Article 14 of the Constitution.

Whether Classification of Vaccinated and Non-vaccinated was based on intelligible differentia

Noticing that the classification sought to be made between the vaccinated and unvaccinated persons was to contain Covid-19 pandemic and its further spread in the State of Arunachal Pradesh, the Bench stated that, “there is no evidence available either in the record or in the public domain that Covid-19 vaccinated persons cannot be infected with Covid-19 virus, or he/she cannot be a carrier of a Covid-19 virus and consequently, a spreader of Covid-19 virus.”

The Bench said that in so far as the spread of Covid- 19 Virus to others is concerned, the Covid-19 vaccinated and unvaccinated person or persons are the same. Both can equally be a potential spreader if they are infected with the Covid-19 Virus in them. Hence, the classification must always rest upon some real and substantial distinction bearing reasonable and just needs in respect of which it is made.

Hence, the Bench stated, if the sole object of issuing the impugned order was for containment of the Covid-19 pandemic and its further spread in the State of Arunachal Pradesh, the classification sought to be made between vaccinated and unvaccinated persons was, prima facie, a classification not founded on intelligible differentia nor it was found to have a rational relation/nexus to the object sought to be achieved by such classification, namely, containment and further spread of Covid-19 pandemic.

Decision

Thus, the Bench held that the impugned notification violated Articles 14, 19 (1) (d) & 21 of the Constitution, in so far it made classification of vaccinated and non-vaccinated persons for the purpose of issuance of temporary permits for developmental works in the State of Arunachal Pradesh. Accordingly, Clause 11 of the impugned order was stayed to the extent it discriminated between Covid-19 vaccinated persons and Covid-19 unvaccinated persons.[Madan Mili v. Union of India, 2021 SCC OnLine Gau 1503, decided on 19-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Advocates for the Petitioner: Debasmita Ghosh, Ebo Mili, Chanya Bangsia and S. Dey

Advocates for the Respondent: Marto Kato, ASG, R. H. Nabam, Addl. Adv. General, A.P

Case BriefsCOVID 19High Courts

Manipur High Court: The Division Bench of Sanjay Kumar, CJ. and KH Nobin Singh, J., decided on a petition which was filed challenging the notification dated 30-06-2021 issued by the Home Department, Government of Manipur and more particularly the para which stated that the State Government proposes to relax curfew/containment zone orders in future in a calibrated manner by assessing the Covid infection scenario and while opening up, without compromising public health safety, the Government considered it prudent to prioritize opening of institutions, organizations, factories, shops, markets, private offices, etc., where employees and workers were Covid vaccinated. The Government had further stated that this would also apply to NREGA job card holders and workers of Government/ private projects.

The aforestated prescriptions seemed to make vaccination mandatory as they favoured those who were vaccinated, not only in terms of prioritizing the opening up of their institutions, organizations, etc., but also by linking vaccination as a condition precedent for employment of NREGA job card holders and workers in Government and private projects.

The Court observed that State cannot seek to impose conditions upon the citizens so as to compel them to get vaccinated, be it by holding out a threat or by putting them at a disadvantage for failing to get vaccinated. Restraining people who are yet to get vaccinated from opening institutions, organizations, factories, shops, etc., or denying them their livelihood by linking their employment, be it NREGA job card holders or workers in Government or private projects, to their getting vaccinated would be illegal on the part of the State, if not unconstitutional. Such a measure would also trample upon the freedom of the individual to get vaccinated or choose not to do so.

The Court held that this paragraph would not be given effect to, even if the State resorts to any further relaxations, until the next date of hearing.

The matter further is to be heard on 28-07-2021.[Osbert Khaling v. State of Manipur, 2021 SCC OnLine Mani 234, decided on 13-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Gauhati High Court
Case BriefsCOVID 19High Courts

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

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

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

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

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

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

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

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

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

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


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Amicus Curiae: Mr. Taka Masa

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

Counsel for the Health Department: Mr. N. Mozhui

Counsel for Union of India: Ms. Akhala, ASGI

Case BriefsCOVID 19District Court

Sessions Court, Jammu and Kashmir: Tahir Khurshid Raina, J., denied anticipatory bail to the person accused of obstructing the vaccination drive and spreading rumours regarding the vaccination. The Bench said, 

“It is very unfortunate that while on one hand, the govt. is making painstaking efforts to ensure the safety of the people against the deadly virus by vaccination drives, the rumour mongers like the petitioner are acting as stumbling block in this lofty endeavor of the government.”

The instant application had been filed by the accused seeking anticipatory bail alleging that some false and frivolous complaint had been lodged against him. It was averred that the respondent/police wants to malign the image of the petitioner by taking him into custody. On presentation of the same, though the Court granted interim anticipatory bail, it also called for the report from the concerned Police Station. After perusal of the report, and going through the C.D. of the alleged incident the Bench reached the following findings:

Background

The facts of the case as reflected from the case diary was that on 21-06-2021, a Revenue team headed proceeded to Ashmuji for Covid-19 vaccination drive at Government Higher Secondary School. When the revenue team along with the medical team reached the spot, the petitioner made hue and cry, instigated and provoked local inhabitants there against the team and halted the vaccination drive. The petitioner assembled a large crowd there, diverted the vaccination drive towards other unnecessary issues in order to restrain the general public from vaccination. On the basis of that an FIR was registered against the accused of commission of offences under Sections 188, 269, 353 IPC.

Perusal of statements of the revenue team revealed that they all had supported the contents of the complaint lodged against the petitioner and how his hate campaign against vaccination obstructed the vaccination drive by spreading misinformation. The petitioner was also said to have used filthy language against the team members who were on the spot in connection with the vaccination drive.

Opinion and Findings of the Court

Relying on the statement of WHO, “but it’s not vaccines that will stop the pandemic, its vaccination”, the Bench stated that during the world crippling pandemic our experts in the medical field had acted as front warriors to save the humanity and at the same time played an exemplary role in preparing a vaccine to act as a shield against the attack of the virus, yet unfortunately,

“By spreading rumors and disinformation campaign against the vaccination, the petitioner and their ilk were creating lot of fear psychosis and confusion among the general public about the vaccination. Such unsubstantiated and profane act of the petitioner is not only grossly illegal but amounts to pushing the life of the people in peril, who, if not get promptly vaccinated, may fall prey to the deadly virus.”

The Bench emphasised not to forget the melancholic situation the country had faced recently, on account of second wave of the pandemic, which consumed lacs of precious human lives. Further to avoid the fatal impact of the third wave which can be more fatal as compared to second-wave the only remedy available and suggested by the experts is to get more and more people vaccinated. Expressing concern, the Bench said that it had been witnessed that at various places the health workers had to face stiff resistance from the people during vaccination drive and even had been subjected to assault at same places due to myths, rumors and canard being spread by the people like the petitioner and on account of it the people, especially living in the rural areas are getting skeptical and cynical about vaccination.

Opining that the act of rumour-mongering with regard to vaccination amount to putting the large chunk of people in jeopardy and at the same time to defeat the govt. in its drive of achieving the target of fully vaccinated country and finally to save the countrymen of the brutal effect of any further wave of the pandemic, the Bench held that the petitioner’s act of blocking the vaccination drive was detestable and illegal, hence, extending anticipatory bail to him would mean to put premium on his criminality.

Quoting Rumors are carried by haters, spread by fools and accepted by idiots”, the Bench added, let a message travels in the length and breadth of our society at large that no such unbecoming and illegal attempt of rumor mongers will be tolerated who are creating a hurdle in the way of vaccination drive. They will be dealt strenuously under law. Moreso, such haters do not deserve concession of anticipatory bail, rather their free movement and free speech is a threat to the society at large which requires to be circumscribed in accordance with the law for the general good of the society. Accordingly, the interim bail granted to the petitioner along with his bail application was dismissed.[Ghulam. Jeelani Rather v. UT of J&K, CNR.No.JKKGO10005062021, decided on 02-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Applicant: Advocate Arshad Baba

For the UT of J&K: P.P. Aijaz Ahmad Najar

Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of Chief Justice Abhay S Oka and Aravind Kumar J. gave a slew of directions regarding Chamarrajanagar Incident, Mucormycosis, Vaccination, oxygen supply and food security.

 CHAMARAJANAGAR INCIDENT  

  1. The issue of enhancement of compensation to the families of 24 victims of Chamarajanagar hospital tragedy was discussed.
  2. Amicus Curiae filed a memo giving suggestions on the minimum reasonable compensation which could be sanctioned to the families of 24 victims.
  3. Advocate General stated that if time of one week is granted, the State Government will consider the suggestions made by the Court and Amicus Curiae.

BLACK FUNGUS (MUCORMYCOSIS)

  1. There seems to be a very steady rise in the cases of Mucormycosis.
  2. Circular dated 23rd June 2021 directed all the Government Medical College Hospitals, District Hospitals and Taluk Hospitals to admit and treat Mucormycosis (Black Fungus) cases on priority basis.
  3. It is directed that the Health Care Facilities in both the Government and the Private shall ensure reservation of sufficient number of beds for admission and treatment of Mucormycosis cases
  4. It is further directed to ensure that the bed availability and occupancy status are displayed at a prominent place for the information of the public.

The Court directed “to start awareness campaign for making the patients who are infected with COVID-19 aware about the Mucormycosis disease and the nature and the effect of the said disease.”

VACCINATION

  1. The issue of vaccination to persons with disability with particular reference to persons with benchmark disability or serious disabilities was also discussed.
  2. About 53% of the persons with disability in the age group of 18 years and above have been vaccinated but the performance of nine districts, when it comes to administering vaccines to persons with disability, is very poor

The Court directed “the State Government to place on record the statistics regarding vaccination of the said category of persons with disability.”

 MID-DAY MEAL

  1. The issue of extending the facility of Mid- Day Meal Scheme during the summer vacation of 2021 was discussed.
  2. Additional Solicitor General of India stated the Central Government has permitted the State Government to release the necessary amounts. In view of this statement, there is no impediment in the way of the State Government implementing the facility of Mid-Day Meal Scheme for the summer vacation of 2021.
  3. It was also stated that the Government of India has taken a decision to permit the use of Disability Certificate with photo issued to persons with disability by the Competent Authorities as one of the prescribed photo identity document for the purposes of vaccination.

The Court further directed the State Government to place before the Court the steps taken to set up 28 oxygen plants.

The Court further directed “the state Government to consider setting up of Real Time Data Portal containing real time updates of the data of COVID-19 beds and other particulars across the State.”

[Mohammed Arif Jameel v. Union of India, WP NO. 6435 of 2020, decided on 24-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsCOVID 19High Courts

Uttaranchal High Court: The Division Bench of Raghvendra Singh Chauhan, CJ. and Alok Kumar Verma, J., have been hearing a series of petitions after a PIL which was filed on 03-05-2021 regarding the submission of a report with regard to the number of jails, the population of each jail in both the categories of under-trial prisoners and convicted prisoners, the number of the prisoners, who have come down with Covid19, the availability of the medical facilities for dealing with those, who are suffering from Covid-19, the number of staff, which is equally affected by Covid-19, the facilities available for quarantining the affected persons, the medical facilities available within the jail, the availability of oxygen tanks, oxygen beds and ventilators, if any, the availability of protective gears such as PPE kits, masks and gloves. The I.G. Prisons, was directed to be present before this Court on 06-05-2021.

On 06-05-2021 the I.G. prisons, informed the Court that there were 6,647 inmates, who were housed in different jails throughout the State out of which 4,474 were under-trials prisoners, while 2173 were convicted. He further furnished all the information sought to by the Court. He informed the Court in accordance with the directions of the Supreme Court in Suo Motu In RE: Contagion of Covid 19 Virus In Prisons, W.P. (C) No. 1 of 2020, a High Powered Committee was constituted by the Uttarakhand State Legal Services Authority by order dated 26-03-2020. The Court after perusing the information submitted had given certain direction:

  • The Jail Department and the Principal Secretary, Home / Prison, respondent no. 1, are directed to ensure that the number of the prisoners being inoculated is drastically increased. In fact, since most of the prisoners would be above the age of eighteen years, the inoculation of prisoners must be ensured by the State Government as expeditiously as possible, and preferably within one month from the date of this order.
  • When a prisoner is being released, he must be subjected to Rapid Antigen Test /RT-PCR test in order to ensure that he does not leave the jail premises as a Covid-19 positive case. For, there are great chances that such a prisoner, who is being released, may carry the virus with him, and may infect his family, in particular, and the society, in general.
  • The High Powered Committee is directed to convene its meeting within a period of two weeks, and to review the cases of under-trial prisoners and the case of those, who have been convicted for offences punishable for less than seven years. It shall make its recommendations within two weeks from its meeting, since there is a possibility that this pandemic may continue for many months to come and since there are reports which show that India may face the third wave of Covid-19, which may continue even in the next year. The High Powered Committee is directed to meet once every month, and to review the cases of the present inmates, and to make its necessary recommendations.
  • The learned I.G. Prison is directed to inform the Chairman, Bar Council of Uttarakhand about the existence of the “E-Mulakaat” portal. Furthermore, he is directed to ensure that sufficient hardware and software is available in the jails so as to permit the prisoners to converse with their counsel through the “EMulakaat” portal.
  • The learned counsel for the State is directed to file a detailed report with regard to the implementation of the directions issued by this Court within a period of three weeks.

The case was next heard on 14-06-2021.

As per the directions issued by the Court on 06-05-2021 a short counter-affidavit had been filed by I.G. Prisons, Uttarakhand according to which 2813 inmates have been vaccinated so far. It was informed that the remaining inmates shall be vaccinated in a systematic manner, and at a rapid speed. However, as the vaccines were not presently available, inoculation programme is progressing slowly. The Committee considered parole of 106 convicts, and interim bail application for 685 under-trial prisoners. Out of 106 convicts, 92 were granted parole by the Committee. With regard to the E-Mulakaat, the I.G. submitted that all the jail Superintendents have been directed to convene the Video Conferencing through E-Mulakat, or through any other portal.

The Court while disposing of the petition held that the directions issued by this Court had been duly complied with. Hence, no further direction needed to be issued by this Court.[Omveer Singh v. State of Uttarakhand, 2021 SCC OnLine Utt 561, decided on 14-06-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Counsel for the appellant: M. Ajay Veer Pundir

Counsel for respondent 1 & 3: Mr C.S. Rawat

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ has expressed serious concerns on the ability of the marginalized members of society between the ages of 18-44 years to avail COVID-19 vaccination, exclusively through a digital portal in the face of a digital divide and has said,

“A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of the society who would bear the brunt of this accessibility barrier. This could have serious implications on the fundamental right to equality and the right to health of persons within the above age group.”

CoWIN Portal and how it works

According to the Union of India,

(i) The CoWIN portal enables one person to register 4 persons using the same mobile number;

(ii) All gram panchayats in the country have Common Service Centres which can effectively enable people residing in rural areas to register online for the vaccination;

(iii) Citizens who do not have access to digital resources could take help from family, friends, NGOs and CSCs;

(iv) Walk-ins cannot be permitted due to the scarcity of vaccines and fears of over-crowding at centres. The online registration requirement counters this fear and also effectively monitors the administration of the second dose. The policy may be re-considered subsequently when more vaccines are available;

(v) Identity proofs are required for the purpose of determining age and keeping a track of persons who are due for the second dose. However, in recognizing the issues arising with the insistence of one of the seven prescribed photo-ID proofs, the Central Government issued an SoP dated 23 April 2021 which enables bulk registration of certain identifiable groups, such as homeless persons, who would be identified and registered by the District Immunization Task Force; and

The Centre clarified that walk-in vaccination facilities will continue for persons over the age of 45 years in separate, designated vaccination centres. This is because vaccinations have been underway for this age group for a while and overcrowding has not been experienced so far.

Data, Drawbacks, and the Digital Divide

In the order, where the Court sought clarification from the Centre on various issues relating to the COVID-19 Vaccination policy, it relied on vaiours reports and surveys that highlighted that:

  • Around 4% of the rural households and 23% of the urban households possessed a computer. In the age group of 15-29 years, around 24% in rural households and 56% in urban areas were able to operate a computer; and
  • Nearly 24% of the households in the country had internet access during the survey year 2017-18. The proportion was 15% in rural households and 42% in urban households. Around 35% of persons in the age group of 15-29 years reported use of internet during the 30 days prior to the date of survey. The proportions were 25% in rural areas and 58% in urban areas.
  • Out of the total population of 1.3 billion, only 578 million people in India (less than 50%) have subscription to wireless data services. The wireless tele density in rural areas is 57.13% as compared to 155.49% in urban areas as on 31 March 2019. The report stated that: “[this] reflects the rural-urban divide in terms of telecom services‟ penetration. Since, the number of wireless data subscribers are less than 50% of the total wireless access subscribers, the number of wireless data subscribers in rural areas would be much lower”.
  • In a few Indian States like Bihar, Uttar Pradesh and Assam the tele density is less than 75%; and
  • The monthly income of persons living below the poverty line in urban areas and rural areas is Rs 1316 and Rs 896, respectively. However, to access internet data services, a minimum tariff plan would cost around Rs 49, which includes 1 GB data every 28 days. This would constitute 4-5% of the month‟s income of such persons accessing data. As such, the report notes that this would bear a considerable cost for persons living below the poverty line.
  • While there are 2,53,134 Gram Panchayats in India, as on 31 March 2020 only 2,40,792 Gram Panchayats are covered with at least one registered Common Service Centres. Hence, approximately 13,000 Gram Panchayats in India do not have a Common Service Centres.
  • The CoWIN platform is not accessible to persons with visual disabilities. The website suffers from certain accessibility barriers. These include:

(i) Audio or text captcha is not available;

(ii) The seven filters, which inter alia, include age group, name of vaccine and whether the vaccine is paid or free, are not designed accessibly. This issue can be addressed by creation of a drop-down list;

(iii) While visually challenged persons can determine the number of available vaccine slots, one cannot find out the day those slots correspond to. This can be resolved by ensuring that table headers correspond to associated cells;

(iv) Keyboard support for navigating the website is absent;

(v) Adequate time should be given to disabled users to schedule their appointment without the possibility of being automatically logged off; and

(vi) Accessibility protocols, such as use of appropriate colour contrasts, should be adhered to

“… there exists a digital divide in India, particularly between the rural and urban areas. The extent of the advances made in improving digital literacy and digital access falls short of penetrating the majority of the population in the country. Serious issues of the availability of bandwidth and connectivity pose further challenges to digital penetration.”

Clarifications sought from the Government:

“It may not be feasible to require the majority of our population to rely on friends/NGOs for digital registrations over CoWIN, when even the digitally literate are finding it hard to procure vaccination slots.”

  • The issue of over-crowding may also arise at CSCs in rural areas where people would have to visit constantly in hope of a vaccine slot opening up.
  • Certain vaccination centres may be earmarked for on-site registrations for the population aged between 18-44 years without the existing conditions prescribed in the circular dated 24 May 2021, potentially with a view to prioritize those with co-morbidities/disabilities/other socio-economic vulnerabilities. Alternatively, whether specific daily quotas may be introduced for on-site registration at each centre or specific centres.
  • This policy may not allay the issue of hesitancy which may arise from approaching a State authority (such as the District Immunization Task Force) to obtain registration for the vaccination. Whether on-site registration with selfattestation of age to ensure widespread vaccination can be provided.
  • The CoWIN platform and other IT applications like Aarogya Setu should be made available in regional languages. The timeline for ensuring the availability of the platform in multiple regional languages.
  • Conducting a disability audit for the CoWIN website and other IT application like Aarogya Setu to ensure that they are accessible to persons with disabilities.

[In re: Distribution of Essential Supplies and Services During Pandemic, 2021 SCC OnLine SC 411, decided on 31.05.2021]


Appearances before the Court

Mr Tushar Mehta, learned Solicitor General

Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior counsel and Amici

ALSO READ

COVID-19 Vaccination Policy| Supreme Court seeks clarifications from Centre on these five issues

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ has, in a bid to understand the vaccination policy for COVID-19, has sought clarification from the Central Government on various aspects enumerated below. While doing so, the Court clarified that,

“This Court is presently assuming a dialogic jurisdiction where various stakeholders are provided a forum to raise constitutional grievances with respect to the management of the pandemic. Hence, this Court would, under the auspices of an open court judicial process, conduct deliberations with the executive where justifications for existing policies would be elicited and evaluated to assess whether they survive constitutional scrutiny.”

Vaccine Procurement and Distribution among Different Categories of the Population

Asking UoI to undertake a fresh review of its vaccination policy, the Court has sought clarification on the following:

  • The roadmap of projected availability of vaccines till 31 December 2021;
  • The preparedness with respect to specific needs of children in the event of a third wave of the pandemic in terms of medical infrastructure, vaccination trials and regulatory approval, and compatible drugs;
  • Whether under the policy of the UoI, it is permissible for State/UT Governments or individual local bodies to access vaccine supplies of foreign manufacturers;
  • The number of crematorium workers vaccinated in phase 1. A targeted drive can be conducted for vaccination of the remaining crematorium workers;
  • The State/UT Governments are diverting the vaccines (procured by them at a higher price than Central Government) for the persons in the age group of 18- 44 years to vaccinate persons above 45 years of age, due to a shortage of vaccines being supplied by the Central Government. The manner in which the Central Government will factor this quantity and price differential into their subsequent allocation and disbursal of vaccines to States/UTs for the persons above 45 years of age; and
  • The mechanism for redistribution, if the 25:25 quota in a particular State/UT is not picked up by the State/UT Government or the private hospitals.

Effects of Vaccination by Private Hospitals under the Liberalized Vaccination Policy

“… we are not opposed to the involvement of private hospitals in the vaccination drive. Private health care institutions have an important role as well. The UoI has correctly noted in its affidavit that these hospitals will reduce the burden on government facilities. This was also happening earlier for the vaccination of those above 45 years of age, where the Central Government was providing these hospitals with vaccines and they were allowed to charge patients a nominal fee (Rs 250). However, the issue is about the effect of privatizing 50% of all vaccines available for the 18-44 age group.”

  • The manner in which Central Government will monitor the disbursal of vaccines to private hospitals, specifically those who have hospital chains pan India. Further, whether (i) private hospitals are liable to disburse vaccines pro rata the population of States/UTs; and (ii) the mechanism to determine if private players are genuinely administering the lifted quota in that State/UT alone. The UoI shall place on record any written policy in relation to this.
  • Whether the Central Government conducted a “means-test” of the demographic of a State/UT to assert that 50% of the population in the 18-44 age group would be able to afford the vaccine. If not, the rationale for private hospitals being provided an equal quota for procurement as the State/UT Governments.
  • The manner in which the Centre and States/UTs shall ensure an equitable distribution of vaccines across sections of the society, and how this factors into the rationale of equal apportionment between State/UT Governments and private hospitals.
  • The nature of the intervention with respect to the final, end-user price that is being charged by private hospitals, especially when a cap on procurement by the private hospitals has been set.

Basis and Impact of Differential Pricing

If the Central Government’s unique monopolistic buyer position is the only reason for it receiving vaccines at a much lower rate from manufacturers, it is important for us to examine the rationality of the existing Liberalized Vaccination Policy against Article 14 of the Constitution, since it could place severe burdens, particularly on States/UTs suffering from financial distress.”

While the Court commended the co-operative efforts of the UoI and the private manufacturers in developing and distributing vaccines which are critical to mitigate the pandemic, it sought clarifications on the process of development and augmentation of vaccine production and its pricing for States/UTs and private hospitals.

  • Since the Central Government has financed (officially, Rs 35 crores to BBIL and Rs 11 crore to SII for phase 3 clinical trials) and facilitated the production (or augmentation of production) of these vaccines through concessions or otherwise, it may not be accurate to state that the private entities have alone borne the risk and cost of manufacture. Additionally, the Central Government would have minimized the risks of the manufacturers by granting Emergency Use Authorization to the vaccines, which should factor into its pricing.
  • The manner in which public financing is reflected in the procurement price for the Central Government, which is significantly lower than price for the State/UT Governments and private hospitals. Given that the R&D cost and IP have either been shared between the Central Government and the private manufacturer (in case of Covaxin) or the manufacturer has not invested in R&D of the vaccine (in case of Covishield), the manner in which the pricing of vaccines has been arrived at, with the Central Government refusing to intervene statutorily. The justification for intervening in pre-fixing procurement prices and quantities for States/UTs and private hospitals, but not imposing statutory price ceilings.
  • Comparison between the prices of vaccines being made available in India, to their prices internationally.
  • Whether ICMR/BBIL formally invited contracts for voluntary licensing and if so, whether they have they received viable offers. The manner in which the UoI is independently trying to assist manufacturers for developing BSL3 labs which are essential for Covaxin production.

Vaccine Logistics

  • The manner in which cold storage equipment capacity is being balanced between the Central and State/UT Governments. The manner in which the States/UTs are managing the logistical burden for vaccinating persons aged between 18-44 years, along with persons aged over 45 years.
  • Whether cold storage facilities in India have increased for the COVID-19 vaccination drive; the present numbers, and comparison with the numbers prior to March 2020;
  • Whether the cold storage equipment is indigenously manufactured or is imported. If it is imported, the steps which have been taken to start indigenous manufacturing.
  • The steps being taken to improve the cold storage management for vaccines which may require lower temperature to be stored, compared to the ones which currently have approval in India.

Digital divide

“… there exists a digital divide in India, particularly between the rural and urban areas. The extent of the advances made in improving digital literacy and digital access falls short of penetrating the majority of the population in the country. Serious issues of the availability of bandwidth and connectivity pose further challenges to digital penetration. A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of the society who would bear the brunt of this accessibility barrier. This could have serious implications on the fundamental right to equality and the right to health of persons within the above age group.”

  • It may not be feasible to require the majority of our population to rely on friends/NGOs for digital registrations over CoWIN, when even the digitally literate are finding it hard to procure vaccination slots.
  • The issue of over-crowding may also arise at CSCs in rural areas where people would have to visit constantly in hope of a vaccine slot opening up.
  • Certain vaccination centres may be earmarked for on-site registrations for the population aged between 18-44 years without the existing conditions prescribed in the circular dated 24 May 2021, potentially with a view to prioritize those with co-morbidities/disabilities/other socio-economic vulnerabilities. Alternatively, whether specific daily quotas may be introduced for on-site registration at each centre or specific centres.
  • This policy may not allay the issue of hesitancy which may arise from approaching a State authority (such as the District Immunization Task Force) to obtain registration for the vaccination. Whether on-site registration with selfattestation of age to ensure widespread vaccination can be provided.
  • The CoWIN platform and other IT applications like Aarogya Setu should be made available in regional languages. The timeline for ensuring the availability of the platform in multiple regional languages.
  • Conducting a disability audit for the CoWIN website and other IT application like Aarogya Setu to ensure that they are accessible to persons with disabilities.

Final directions

The Court directed UoI to file an affidavit, with each of the abovementioned issues responded to individually and no issue missed out.

The affidavit should also provide the following information:

  • The data on the percentage of population that has been vaccinated (with one dose and both doses), as against eligible persons in the first three phases of the vaccination drive. This shall include data pertaining to the percentage of rural population as well as the percentage of urban population so vaccinated;
  • The complete data on the Central Government‟s purchase history of all the COVID-19 vaccines till date (Covaxin, Covishield and Sputnik V). The data should clarify: (a) the dates of all procurement orders placed by the Central Government for all 3 vaccines; (b) the quantity of vaccines ordered as on each date; and (c) the projected date of supply; and
  • An outline for how and when the Central Government seeks to vaccinate the remaining population in phases 1, 2 and 3.
  • The steps being taken by the Central Government to ensure drug availability for mucormycosis.

The affidavit is to be filed within 2 weeks.

[In re: Distribution of Essential Supplies and Services During Pandemic, 2021 SCC OnLine SC 411, decided on 31.05.2021]


Appearances before the Court

Mr Tushar Mehta, learned Solicitor General

Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior counsel and Amici

Case BriefsHigh Courts

Madhya Pradesh High Court: The Divison Bench of Mohammad Rafiq, CJ. and Atul Sreedharan, J., heard and decided on a series of interlocutory applications which were filed with different prayers all in relation with COVID 19.

The prayers in these petitions included:

  • for an appropriate direction to the respondent/State to ensure availability of required medicines for treatment of Black Fungus (Mucormycosis) and to control cost of such treatment.
  • for direction to the State Government to install CT-Scan and MRI machine in Medical College/District Hospital, Ratlam. These applications were disposed of with liberty to the applicants to give suggestions at the time of hearing of the aforesaid application.
  • praying that the applicant was given time-slot for vaccination, but no such vaccine was provided to her. In this regard, she made complaint and the Court in this regard directed that upon the applicant/intervener approaching the Chief Medical and Health Officer, Jabalpur, he shall ensure that time slot is provided to her for the purpose of vaccination and she is vaccinated.
  • prayer that the State Government be directed to also provide the cost of medicines for treatment under the Ayushman Bharat Nirmayan Yojna for treatment of the persons covered in that scheme.
  • for a direction to the State Government to take appropriate action against the erring persons for selling fake Remdesivir and other spurious drugs for committing offences of murder under Section 302 of the Indian Penal Code, apart from those under National Disaster Management Act, Epidemic Diseases Act, 1897 and the Drugs and Cosmetic Act, 1940, he further prayed the affected persons or in case of death, the family members of the deceased, be granted adequate compensation as per provision of Section 27 of the Drugs and Cosmetic Act, 1940.

The Court in this regard opined that no such specific direction can be issued by this Court while dealing the matter under the scope of PIL. It is always for the Investigating Officer to find out on the basis of evidence collected by him during the course of investigation as to what offence is made out and accordingly submit the chargesheet. If and when the chargesheet is submitted, the Court concerned will have the occasion to examine whether or not such offences are prima facie made out for proceeding further in the trial or any other offence is made out on the basis of evidence collected by the Investigator.

  • prayer to issue direction to the State Government to lodge an FIR in the matter of death of five persons due to shortage of oxygen in the Galaxy Super Speciality Hospital, Jabalpur in accordance with the findings recorded in the Magisterial Enquiry conducted in the matter. Advocate General submitted that the FIR had already been lodged and the investigation was going on, in this view the Court did not deem fit to pass any order.
  • prayer for quashing of the order dated 20-5-2021 passed by the Collector, Indore by which a complete lockdown has been imposed in the Indore city and supply of all the essential items had been stalled. The Court opined that Collector, Indore should review his order and ensure just and equitable method of having all grocery shops, daily need shops, fruits and vegetable vendors, open during specified hours of five days a week so that neither the residents of Indore city nor the small vendors face any hardship.
  • the State Government should be required to demonstrate its preparedness to deal with the apprehended third wave of Covid-19 and submit the time frame and action plan to vaccinate the entire population of the State.
  • A prayer invited attention of the Court that the State Government has not taken any effective measures regarding fixation of the maximum rates for treatment of the Covid patients in various Private Hospitals/Nursing Homes by indicating capping of the such charges, in compliance of the order passed by this Court on 19-4-2021.

Amicus Curiae submitted that pursuant to the order passed by this Court on 19-5-2021, he had interaction with the representatives of the Indian Medical Association and M.P. Nursing Homes Association. According to him, the discussions resulted into fruitful suggestions. They are ready to make addition of 40% as directed by the State Government in its order dated 4-9-2020, invoking its power under the National Disaster Management Act and Epidemic Diseases Act, on the charges reflected in the bills of various kind of the treatments and facilities provided by them (private hospitals/nursing homes) in the month of January and February 2020 immediately before the start of the pandemic. The Court opined that , the package method of charging has to be discouraged and the suggestion which has emerged in the deliberations made by the learned Amicus Curiae with the representatives of the Indian Medical Association and M.P. Nursing Homes Association that charge for the various kind of treatments and facilities being provided by the nursing homes and private hospitals in the months of January and February, 2020 may form basis of adding 40% thereto, to fix outer limit capping of charges taken for treatment of Covid 19 patient which appears to be reasonable criteria and would be beneficial to the public at large and save them of undue exploitation.

  • Prayer that direction be issued to the State Government to declare Black Fungus (Mucormycosis) as “notified infectious disease” and that State Government be directed to regulate supply and cost of Amphotericin-B injections and any other medicines that would be required to treatment of Mucormycosis, so that patients and their families are not exploited.

The Court in this regard impressed upon the State Government to effective take steps so as to save the life of more than 1000 patients who are infected and many more who might be infected during the course of time. In regard to vaccination the Court opined that since as per Action Taken Report filed today by the State Government, tender has not been issued so far, the State Government may consider suitably increasing the number of doses for procurement through the global tender based on the actual requirement, particularly when each person is required to be given two doses for complete vaccination.

From the submissions made the Court concluded that the State Government has not received even half of the promised quantity of the vaccination doses for the month of May 2021, either from the Central Government for the age group of 45 and above or even from two major manufacturers within the country in response to orders placed with them. The global tender issued by the different State Governments have also failed to yield in positive result.

The Court further opined that the Central Government ought to reconsider efficacy of its vaccination policy. The Central Government should consider taking upon itself the responsibility of providing required number of vaccination doses to the State by setting up more and more units in all the States with required licence from the local manufacturers, to ramp up the production of the vaccination on war footing. Additionally, the Central Government should by itself consider procuring the vaccination doses in sufficient quantity from the manufacturers from outside the country to provide the same to the States, rather than leaving it upon the States to do so. The Central Government should also consider procuring the medicine Amphotericin-B or any other equivalent medicine by setting up more number of manufacturing unit within the country or from outside the country wherever, they may be available for immediately treatment for saving hundreds of precious lives of the citizens.

A detailed affidavit/Action Taken Report regarding the preparedness of the State Government for apprehended third wave of Covid-19 to come up on 31-05-2021.

[In Reference (Suo Motu) v. Union of India, 2021 SCC OnLine MP 963, decided on 24-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Appearance:

For petitioner: Mr. Siddharth Gupta

Amicus curiae: Mr Naman Nagrath, Senior Advocate with Mr Jubin Prasad, Advocate a

For Respondents: Mr Purushaindra Kaurav, Advocate General, Mr Pushpendra Yadav, Additional Advocate General and Mr Swapnil Ganguly, Deputy Advocate General, Mr Jitendra Kumar Jain, Assistant Solicitor General and Mr Vikram Singh, Advocate for the Union of India, Mr Shivendra Pandey, Advocate, Mr Shreyas Pandit, Advocate, Mr A.M. Mathur, Senior Advocate assisted by Mr Abhinav P. Dhanodkar, Advocate.

Case BriefsHigh Courts

Madras High Court: The bench of Sanjib Banerjee, CJ and Senthilkumar Ramamoorthy, J has issued notice to the Tamil Nadu Government in a plea seeking direction to extend Covid 19 assistance of Rs. 4000 to all transgenders, irrespective of whether they hold a ration card or not.

Prayers before the Court:

(i) to issue a Corrigendum to the G.O.(Ms) 37 dated 7.5.2021 of the Department of Cooperation, Food and Consumer Protection to extend Covid-19 cash relief Rs.4000/- to transgender persons in Tamil Nadu who do not possess Ration Cards;

(ii) direct that the first installment of Rs.2000/- of cash relief to be paid in the month of May 2021 under the G.O.(Ms) 37 dated 07.05.2021 is also paid to transgender persons who do not have ration cards, either on the basis of their transgender identity cards or any other government ID;

(iii) to conduct awareness programmes for Transgender Persons in the State of Tamil Nadu regarding Covid-19 Vaccination, especially to clarify and assure them on the safety of vaccines for those who are undergoing hormone therapy and other treatment; and

(iv) to conduct special vaccination drivers for transgender persons in Tamil Nadu by assisting them to register online and get special vaccination slots in local community health centres.

[Grace Bano v. Chief Secretary Government of Tamil Nadu, W.P.No.12035 of 2021, order dated 20.05.2021]

For Petitioner : Ms.Jayna Kothari, S.C. For Mr.C.Prabhu

For Respondents : Mr.R.Shanmughasundaram Advocate General, Assisted by Mrs. A.Srijayanthi, Spl.G.P.

Case BriefsHigh Courts

Madhya Pradesh High Court: The bench of Mohammad Rafiq, CJ and Atul Sreedharan, J has issued notice to the Madhya Pradesh Government after a PIL was filed before the High Court seeking direction to the Madhya Pradesh Government to initiate the exercise of inviting global tender for the procurement of fixed lot of vaccines for immunizing the entire lot of its residents through a State-level immunization programme.

While it was submitted before the Court that the that the Central Government has adopted a policy according to which it can issue licence in favour of local manufacturers within the State of Madhya Pradesh for manufacturing the vaccine namely Covaxin, the Court listed the matter for further hearing on May 24, 2021.

The petition filed by Sunil Gupta, an elected Member of the State Bar Council, Madhya Pradesh, highlighted that already, a number of States have initiated steps in this regard and have either already floated global tender for the said process or are in the process of issuing one.

It further submits that if the State takes over the responsibility of inviting a global tender and undertakes to procure the entire lot for its unvaccinated (around 85%) population, then the said exercise would be completed within a period of 3-4 months conveniently without much of involvement of the private sector, eliminating the possibilities of the poor or the have-not section of the society been deprived of timely vaccination owing to lack of financial resources with him.

Read all about the petition here: 

‘Step into the shoes of a parent for your citizens and invite global tender for procurement of COVID-19 vaccines’. Read what the PIL in Madhya Pradesh High Court states

[SUNIL GUPTA v. THE STATE OF MADHYA PRADESH, WP-9487-2021, order dated 19.05.2021]


Appearances before the Court by:

For Petitioner: Advocate Siddharth Gupta

For Respondents: Advocate General Purushaindra Kaurav, Assistant Solicitor General J. K. Jain and Advocate Vikram Singh

Hot Off The PressNews

Madhya Pradesh High Court: As the nation is crippled with rising COVID-19 cases and shortage of vaccines, an important PIL has been filed before the High Court seeking direction to the Madhya Pradesh Government to initiate the exercise of inviting global tender for the procurement of fixed lot of vaccines for immunizing the entire lot of its residents through a State-level immunization programme.

The petition filed by Sunil Gupta, an elected Member of the State Bar Council, Madhya Pradesh, highlighted that already, a number of States have initiated steps in this regard and have either already floated global tender for the said process or are in the process of issuing one.

In the State of Madhya Pradesh, the population which is required to be vaccinated of the 18+ category is roughly about 5.49 crores.

Here’s the breakdown the statistics:

Total population in Madhya Pradesh 8,40,40,000

 

Total vaccinated population

(as on 13th May, 2021)

90,33,231
Total people vaccinated in the 18-45 age group

(as on 13th May, 2021)

8,08,762
Percentage of population vaccinated in M.P

(as on 13th May, 2021)

10.74%

Apart from various problems that are arising to ensure vaccination, the petition also highlights the issue of profiteering by the private hospitals and

medical practitioners, with private hospitals charging Rs. 1500 to Rs. 2000 per dose per person.The bigger the brand, the higher the rate of the very same dose of vaccine inoculated to the same category of patient by the private service providers.

“Where on one hand, the State Government is not able to ensure speedier and widespread vaccination due to availability of doses, on the other hand, private entities across the country are able to squeeze a lion’s share in the pie by getting the doses and vaccinating the people at much higher rates than that on which the Central Government is procuring, i.e., at the rate of Rs. 150 per dose per person.”

The petition argues that if the State purchases a bulk lot of vaccines by placing a direct purchase order without any interference by the Central Government through a direct tender process, as has been done with many other categories of drugs in normal course, then the problem shall be resolved.

The Global Tender floated by the Uttar Pradesh Medical Supplies Corporation limited for procurement of vaccines for Covid-19 also finds mention in the petition and is termed as “a role model in itself to be emulated and adopted by all the States of the country.”

Under the Uttar Pradesh’s Global Tender, the time period within which the entire contracted dose of vaccine is to be supplied by the concerned successful bidder to the State (which is two to three months period). Thereafter the entire lot of vaccine is in control and ownership of the State Government, which thereafter fixes the cap at which the concerned vaccination dose is to be sold on the field by the concerned authorized sellers. Thus, the State essentially becomes the “umbrella authority” in control and regulation of the entire lot of vaccines deciding how to get the citizens inoculated timely and without administrative delay and day to day bottlenecks.

States of Odisha, Karnataka, Maharashtra, Andhra Pradesh, Telangana, Delhi have taken the in-principle decision of floating Global e-tenders for purchase of vaccines towards ramping up the process of immunization drive at the State level.

Therefore, to ensure availability of a fixed confirmed cartel of vaccine with the State government for implementing a time bound immunization program in the State, it is necessary that some concrete steps must be taken.

The petitioner submits that inviting vaccines at a global level from international players will also evoke interest by the international companies for orienting their resources towards supplying their developed drugs in India (after statutory approvals) and also meet the acute shortage and availability issues of the vaccines being faced by various States including the State of Madhya Pradesh.

It is further submitted that involving multiple players in the field will also enable the State Governments to go for the best choice as also negotiate and develop bargaining power with the international players as also domestic companies for the supply of vaccines for immunizing its residents.

On the issue of price fixation, the petition states that the State must not only float the tender and call for the vaccine, but must also ensure that the vaccines are administered to each and every citizen at the fixed capped price both by the private as well as government players on which the State is undertaking procurement. This will eliminate any prospects of profiteering, hoarding and black marketing of the vaccine, procured through the Global e-tender by the State government.

If the State takes over the responsibility of inviting a global tender and undertakes to procure the entire lot for its unvaccinated (around 85%) population, then the said exercise would be completed within a period of 3-4 months conveniently without much of involvement of the private sector, eliminating the possibilities of the poor or the have-not section of the society been deprived of timely vaccination owing to lack of financial resources with him.

“Immunization at the State level is a concept which is not new and is being undertaken with respect to multiple other ailments like tuberculosis, polio, measles, etc diseases which have been a cause of pandemic in the past. Therefore, the State can very well step into the shoes of a parent for its citizens and undertake the said exercise of undertaking global tender for the procurement of vaccines in one go.”


Petitioner’s counsel: Advocate Siddharth R. Gupta 

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar Mishra and Parth Prateem Sahu JJ. laid down allotment of vaccines in percentage to the ‘Antyodaya Group’, the persons belonging to the ‘Below Poverty Line’ and the persons belonging to the ‘Above Poverty Line’.

The present issue has come up before the Court regarding that the vaccine allotted to a particular category like Front Line Worker or Antyodaya or BPL (Below Poverty Line) remained unused in a particular vaccination center at the end of the day and the previous orders under the same PIL no. does not provide as to how the unused vaccines would be redistributed on the following day or any other day. Also the vaccine quantity allocated to Antyodaya category persons remains unused and at the same time persons belonging to other category and willing to be vaccinated returned without being vaccinated at the end of the day.

The vaccination programme is going on by distributing the following quota of vaccines to the eligible categories:

No. Category Percentage of Vaccine Allocation
1. Frontline Workers 20% of the total vaccine doses available
2. Antyodaya Ration Card 15% of the remaining 80% vaccine doses available or 12% of the total vaccine doses available
3. BPL (Below Poverty Line) 65% of the remaining 80% vaccine doses available or 52% of the total vaccine doses available
4. APL (Above Poverty Line) 20% of the remaining 80% vaccine doses available or 16% of the total vaccine doses available

It was submitted that non-utilisation of vaccines is, in fact, delaying the whole vaccination programme for the persons who are willing to be vaccinated, but they could not get the vaccination because the quantity allocated to their category is exhausted on a given date.

State submitted that the unused vaccines for any particular category are redistributed. The Court further listed the matter for 19-05-2021 for consideration regarding non-utilisation of Antyodaya or any other category vaccines at the end of a particular day and an affidavit to this effect shall be filed.

[Suo Moto WP (PIL) v. State of Chhattisgarh, 2021 SCC OnLine Chh 1110, decided on 17-05-2020]


Arunima Bose, Editorial Assistant has put this report together 

Amicus Curiae: Mr. Prafull N Bharat

Advocate for the State: Mr. Satish Chandra Verma, Mr. V Giri, Mr. Vivek Ranjan Tiwari, Mr. Chandresh Shrivastava, and Mr. Vikram Sharma

Advocate for UOI : Mr. Ramakant Mishra,

Advocate for Railways: Mr. Abhishek Sinha,

Advocate for SLSA: Mr. Ashish Shrivastava

Advocates for the respective Interveners:, Mr.  Sandeep Dubey, Mr.  Palash Tiwari, Mr. Sudeip Shrivastava, Mr. A. V. Sridhar, Mr. Anumeh Shrivastava, Mr.  Himanshu Choubey, Intervenor in Person.

 

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ., and G. S. Kulkarni, J. had addressed a suo motu case on the issue of alarming rise in COVID-19 cases in prisons of the State of Maharashtra.

By an earlier order, the Bench had passed several directions to de-congest the correctional homes and to compel adherence to maintenance of COVID-19 protocol in such homes to ensure safety and well-being of the correctional home inmates as well as the staff.

Pursuant to the said order, a report had been submitted by the State asserting that sanitizers had been made available as well as appropriate briefing is given to the authorities for maintaining COVID-19 protocol inside the correctional homes. Additionally, only those staff, who are vaccinated, are being assigned duties and to interact with the inmates. The State had assured that urgent steps would be taken to ensure that the entire prison staff is vaccinated at the earliest.

Another major issue before the Court was, the particulars of medical officers as well as paramedical staff posted in the various central prisons and district prisons present a very dismal picture. In case of both medical officers and para-medical staff, nearly 1/3rd of the vacancies remain unfilled. That though Medical Officers belonging to Classes I, II and III are shown to have been posted at various correctional homes but the principle behind such posting had not been indicated in the brief note submitted by the state. Similarly, the Yerwada Central Prison was found not to have the service of a single Medical Officer Class I. The Bench asked the state how it proposes to deal with the problem of dearth of medical officers and para-medical staff at the various correctional homes. The state was directed to at least make efforts to fill up all the sanctioned posts and ensure zero vacancy qua such posts. The Bench said any omission or failure to deal with the concern at hand by the State in the near future may not be viewed lightly.

While noting the progress made in achieving compliance, the Bench further issued further directions:

  1. The authorities to whom the guidelines/ recommendations are issued by the High Power Committee in furtherance of the avowed object of reducing the problem of overcrowding in the correctional homes shall follow the same in letter and spirit.
  2. The second direction was with regard to devising ways and means to regulate the entry of staff in the correctional homes, since it was apprehended that such staff were the carriers of the virus and contributed to its spread among the inmates.
  3. It is revealed that pulse oximeter reading, temperature reading as well as tests for symptoms common to the infection in issue are required to be undergone by each staff. Such staff also has to wear appropriate masks, properly.
  4. The shall, as far as practicable, have all the prison staff vaccinated as early as possible.
  5. State shall not compel an inmate to obtain release either on interim bail or emergency parole, without his free will/volition.
  6. Ministry of Health and Family Welfare, Government of India has issued Standard Operating Procedure (SOP) on COVID-19 ~ Vaccination of Persons without Prescribed Identity Cards through CoWIN portal which stipulates that if a group of people is found not to have any of the 7 specified identity cards required for vaccination, such group of people may be registered on the CoWIN portal and further steps accordance with the SOP for vaccination. Accordingly, directions were issued to the State as well as the prison authorities not to insist on production of Aadhar Cards by correctional home inmates and to proceed for vaccination of those inmates, not having the specified identity cards, in the manner as laid down in the SOP without any delay.
  7. To ensure that the statutory mandate of the Maharashtra Prison (Prison Hospital) Rules, 2015 framed under the provisions of the Prison Act, 1894 are complied with as early as possible; also, if there be dearth of medical officers, a policy of rotation could be formulated and pressed into service.
  8. Noticing the news report regarding water shortage in Taloja correctional home, the Bench directed the authorities to take immediate steps to restore the water supply.

Lastly, observing the rising number of Covid positive inmates and jail staff, the Bench opined that much is required at the end of the prison authorities to arrest the spread of the pandemic in the correctional homes. Hence, the Court asked the state to take appropriate steps within the limits of its capacity.

[Suo Motu v. State of Maharashtra, 2021 SCC OnLine Bom 715, order dated 12-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsel for the State: Deepak Thakare and Akshay Shinde

Counsel for People’s Union for Civil Liberties (Intervenor): Mihir Desai with Vijay Hiremath, Devyani Kulkarni and Mihir Joshi

For Centre for Criminology and Justice (TISS): Professor Vijay Raghavan

Case BriefsHigh Courts

Bombay High Court: The Division Bench of N.R.Borkar and K.K.Tated, JJ., directed State government to hand over the peaceful possession of the ready to use BSL-3 vaccine manufacturing unit, Pune from M/s. Intervet India Pvt. Ltd. to Biovet Pvt. Ltd. along with the requisite rights, responsibilities and obligations to deal with all the matters with respect to the vaccine manufacturing property.

The Applicants had sought directions to grant appropriate licenses/permissions/ NOCs in a time-bound manner to enable manufacture of FMD vaccine/ Covaxin against Covid-19 and other life saving vaccine on the said land and unit. The instant application had been filed pursuant to the order of Deputy Conservator of Forest, Pune, rejecting the application of the applicant to re-examine and review the order passed by the Assistant Conservator of Forest, Pune wherein, the applicant was denied approval to start manufacturing activities of Foot and Mouth Disease (FMD) vaccine and vaccine for Covid-19 on the said manufacturing unit.

The applicant submitted that though the petition in the said matter is pending, it had approached the Court with interim application since the plant and machinery is lying idle because of the dispute between the Petitioners and the Respondent-State. It was submitted that   considering the present position of the Covid-19 it may be granted permission to start manufacturing of FMD vaccine and Covaxin, which is very useful in Covid-19 period.

The counsel for the State, Mr. Kumbhakoni had submitted that the State had no objection and the Applicant can use the said premises for manufacturing lifesaving vaccines including Covaxin used for Covid-19 without claiming any right, title and interest in respect of the said property. Further, the State assured to cooperate to the Applicants, for grant of any permission if required to start manufacturing activities and the same will be decided without wasting time, considering the present Covid-19 position in Maharashtra.

Considering the present position of Covid-19 and that the applicant is ready and willing to start manufacturing activities without prejudice to the rights and contentions of both the parties in the pending proceeding, the Bench allowed the interim application and the same was disposed of with following directions:

  • That pending the final disposal of the above petition, the Respondents shall handover peaceful possession of the ready to use BSL-3 vaccine manufacturing facilities and equipment therein from M/s. Intervet India Pvt. Ltd. to the applicant along with the requisite rights, responsibilities and obligations to deal with all matters with respect to this vaccine manufacturing property.
  • The State shall grant appropriate licenses/permissions/NOCs required to the Applicant in a time-bound manner to enable manufacture of FMD vaccine, Covaxin against Covid-19 & other lifesaving vaccines in the said plant on the said land.
  • The State shall permit the Applicant to carry out appropriate structural changes for enhancement & further scaling up of the manufacturing of lifesaving vaccines, including Covaxin to immediately utilize the maximum installed capacity.
  • The Applicants cannot claim any equity on the basis of this order at the time of hearing of writ petition.
  • All contentions of both the parties are kept open.

[Biovet Pvt. Ltd.  v. The Collector, 2021 SCC OnLine Bom 707, decided on 06-05-2021]


Kamini Sharma, Editorial Assistant has put this report together

Appearance before the Court by:

Counsels for the Applicant: R.D. Soni, Mr. Sujay Gawde and Shree & Co.

Counsels for the State: AG A.A. Kumbhakoni, GP P.P. Kakade, Akshay Shinde with  AGP R.M. Shinde

Counsels for the Respondent-9: Prathamesh Kamat, Zoeb Cuterwala, Vikram Kamat and Phoeni Legal