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The Supreme Court on Friday asked the Centre to rethink its handling of the national health emergency, urging the government to rehaul the vaccination programme, augment oxygen supply and allow third parties to make patented drugs to boost supply.

“Intervention of the Supreme Court must make a difference in people’s lives. It must save some lives," remarked a bench headed by justice Dhananjaya Y. Chandrachud, as it listed out the areas of concerns where, it said, the government must “do some serious thinking on their policy decisions and revisit them".

The court had many pointed queries on the vaccination policy apart from ramping up the production of essential medicines
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The court had many pointed queries on the vaccination policy apart from ramping up the production of essential medicines

Reading out a note prepared by him, justice Chandrachud highlighted that the focus areas of the court, including management and augmentation of medical-grade oxygen, with a central dashboard on a real-time basis for demand and supply; plan to make the vaccine available to everyone in the country at the same price with an endeavour to make it free for the poor and the marginalized classes; compulsory licences to more manufacturing units after a temporary waiver of the patents in order to boost production of essential medicines such as remdesivir and favipiravir; and ensuring hospitalization to all those who required urgent medical aid.

“We also hear people crying. People who have crossed our paths crying for a cylinder of oxygen. Today the ground situation in the national capital is that there is no oxygen or, for that matter, in Gujarat or in other states. We can’t revive those who have left us, but we can certainly do something to save the lives of several others. We want you to tell us within the foreseeable future what is going to be the difference? How will things change on the ground?" the bench, which included justices L. Nageswara Rao and S. Ravindra Bhat, asked solicitor general Tushar Mehta, who represented the Centre.

While fixing the matter to be heard on 10 May to enable the Centre to respond to the necessity of modifying policies, the bench said it will issue some interim directions to take care of the present situation, and the order will be uploaded on the Supreme Court website on Saturday morning.

One of the urgent directions, the court said, will be on making sure no patient is turned away by a covid care facility in any state for want of a residential proof or any particular identity card.

Mehta responded that the Centre was talking to all states since it was aware that there could be a second surge of infection, which could be more serious than the first wave. He said the Union government may issue directions for a uniform policy for admission of patients in hospitals while other priorities such as augmentation of medical oxygen and ramping up of vaccine manufacturing were being looked into diligently.

As Mehta said that the Delhi government has not been able to lift the allotted quantity of oxygen for want of tankers, the bench responded that the Centre had a “very valuable responsibility" when citizens of Delhi were concerned.

“Delhi represents the nation, and there is hardly anyone ethnically Delhiite. Delhi represents people from all over the country. You have a special responsibility as the Centre," it observed and added that the Centre must also help Delhi in arranging tankers for transportation of oxygen.

In the suo motu (on its own) proceedings of the top court, Mehta was assisted by Sumita Dawra, an additional secretary in the ministry of commerce and industry. She is heading the oxygen procurement and supply coordination for the central government. Dawra said there was enough medical oxygen available in the country, and the issues relating to tankers and transportation were being ironed out.

However, the court had many pointed queries on the vaccination policy apart from ramping up the production of essential medicines by way of deregulating the patent.

Justices Chandrachud and Bhat underscored that there was a looming national emergency, requiring the Union government to suspend the patent rights of manufacturers of essential drugs so that more units could be put to task to meet the pressing demand. It reminded the solicitor general of the pertinent provisions of the Patent Act, asking why the Supreme Court should not issue authorization for using the patent for government purposes whereby the government could give compulsory licences to generic drugmakers to manufacture remdesivir, favipiravir and tocilizumab after temporarily suspending the intellectual property rights.

“You can declare a national emergency and then use your powers under the Patents Act so that anybody can manufacture these drugs on your licences. This is a case where we should go for compulsory licensing. Look at statistics. Germany, Canada and many other countries have done the same thing. This is a public health emergency. You have no less than 10 PSUs that can take over and start manufacturing," the bench told Mehta, seeking a response to this on the next date.

On the vaccination programme, the bench questioned the difference in vaccine pricing between Centre and states and asked why citizens of the same country should be made to pay more based on when and where they were inoculated.

The court urged the Centre to follow the model of the national immunization programme where the Centre negotiated with the vaccine manufacturers and bought vaccines while states took care of the transportation.

Other issues the Centre needs to address by 10 May include availability of beds, proactive testing, number of covid care centres, adequacy of healthcare professionals, their protection and treatment, and helplines .

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