WARNING: The Delhi HC has warned if the Center did not take immediate action on the unprecedented increase in covid-19 cases at the rate of three lakh new cases and 1,000 deaths daily there may be no choice but to impose another lockdown. The court was responding to a writ petition filed complaining that the new Delhi government is being denied supplies of oxygen which was hijacked by the BJP-ruled Harayana government.

The High Court of Delhi issued directives to the Center to ensure that oxygen cylinders and covid drugs are immediately made available to all states including non-BJP states like Delhi on priority basis. The Court pointed out that since we are suffering from a huge increase in covid cases this may result in extended lockdown and closure in industrial units will affect employment very badly and cause a fresh round of ghar wapasi of migrant labor…

Looking to the serious and emergent situation, we call upon the Central Government to seriously consider issuing appropriate orders in respect of the Steel and Petro-Chemical industries, so that a balance can be maintained between the needs of the people at large – who are suffering from COVID and are serious, and the needs of the industries. After all, if more and more people are going to suffer seriously from COVID – which in turn may result in extended lockdown and closures, the purpose of full production of Steel and Petroleum products would also be of no avail, as their consumption is bound to fall in that scenario. We, therefore, expect the Central Government to urgently hold a meeting with all stakeholders including from the Steel and Petro-Chemical industries, so that sufficient portion of the Oxygen produced by these industries could be diverted for medical needs for the period required to tide over the prevailing medical emergency.

  1. Mr.Vinayak has also pointed out that the Central Government had sanctioned funds in December, 2020 to set up Pressure Swing Adsorption(PSA) plants for production of oxygen throughout the country. For the NCT of Delhi, eight such plants were sanctioned. He states that only one has become operational till date, and two of the hospitals, namely, Satyawadi Raja Harish Chandra Hospital and Vardhaman Mahavir Medical College & Safdarjung Hospital have not yet provided the site clearance where the PSA plant could be installed. Two of the hospitals have now provided the site clearance and the equipment would be installed by 30.04.2021. We direct the respondents to ensure that the remaining hospitals – who have not acted in response to the said scheme of the Central Government, act immediately. Compliance be reported on the next date.
  2. Looking to the number of COVID positive patients all over the country, and the pattern which is emerging with regard to the spread of the viral infection and the severity with which it is impacting people in different States and regions, we direct the Central Government to review the allocation of Oxygen on a dynamic basis i.e. on a day to day basis, so that its utilization is achieved in the most efficient manner.
  3. Another aspect highlighted by Mr.Vinayak is with regard to the efficient usage of Oxygen. He points out that the State of Kerala has led by
    example in this regard, and the use of Oxygen by Kerala is most efficient, which should be followed by all.
  4. As we pass this order, we are informed that the Oxygen supplies in various Covid hospitals in Delhi, including Sir Ganga Ram Hospital, and Max Hospital are about to get exhausted in the next about 4-8 hours. The decision taken by the Central Government to divert supplies from industrial use for medical use, for some obscure reason, has been sought to be implemented only from 22.04.2021.
  5. We do not find any justification for the same. The need for oxygen is now. Any delay in this regard would lead to loss of precious lives. We, therefore, direct the Central Government to implement the said decision forthwith, and make available oxygen to hospitals which are running out of their supplies, lest there is grave loss of life suffered by patients being treated thereat.
  6. Since M/s INOX has not complied with our last order dated 19.04.2021, we direct issuance of Notice of Contempt to M/s INOX returnable on 22.04.2021. Notice be served through email. We direct the Managing Director/ Owner of M/s INOX to personally remain present during the hearing on the next date of hearing. The State of UP, through the Chief Secretary should also remain present during the hearing. Notice shall also be issued to him.
  7. On the aspect of ramping up of the testing facilities for Covid-19 through the RT-PCR test, there are certain aspects which need to be addressed by the Central Government, and its instrumentalities. We are informed that the equipment for setting up RT-PCR test labs are imported, and medical equipment/ machines for which import orders have been placed,
    are being dealt with routinely at Customs Ports. It is essential that all such medical machines/ equipments, medicines, etc. which are imported should be handled and cleared at top priority by the Customs. We direct the Central Government to issue necessary directions in this regard forthwith.
  8. For the purpose of setting up of Covid testing facilities, the entrepreneurs/ doctors have to obtain clearance from the Indian Council for Medical Research (ICMR). It has been brought to our notice that the procedure for such clearances is also highly time consuming. We do not wish to, in any way, impinge on the authority of ICMR, and we do not expect the ICMR to relax its standards in the matter of granting its permissions and clearances. However, looking to the present day situation, we direct the ICMR to give top priority for such clearances so that the RT- PCR Labs could be set up or expanded without any delay.
  9. Another aspect that has been brought to our notice, which is also resulting in delay in preparation of RT-PCR Test Reports, is the Software deviced for uploading of the Test results on the website. The patients who undergo the RT-PCR test,s are required to provide their Aadhar Cards. Despite that being the position, the testing agencies are required to fill up detailed forms online, which take up to 15 minutes per form. We, therefore, direct the Central Government, and the ICMR, to review the form in which the information is required to be uploaded by the testing agencies, so as to reduce their burden and wastage of time, as this appears to be acting as a bottleneck in the matter of preparation of reports.
  10. We have also noticed reports in newspapers about the critical medicines required for the treatment of serious Covid-19 patients falling in short supply, and also being sold at a premium in the black market. It appears that the requisite drugs are being hoarded by some unscrupulous persons/ dealers or retailers. We direct the Central Government, and its agencies, particularly the Drug Controller of India, to issue necessary directions in this regard to all the licensees, and the Government should undertake checking on a regular basis to unearth all such cases of hoarding which is leading to scarcity of drugs in the marked for the needy patients. Strict penal action should be taken against those indulging in such practices.
  1. The affidavit filed by the Central Government discloses that – so far as Remedesivir Drug is concerned, the Central Government has supplied
    10.40 lakh vials to all the States and Union Territories during the last 9 days (between 11th and 19th April), out of which 40,132 vials have been supplied to Delhi. Meanwhile, DGCI has granted immediate permission to license holders for manufacture of the Remedesivir at 20 additional sites, adding production capacity of 35.3 vials/ month. It is stated that this would ramp up the production capacity for manufacturing this drug to around 74.10 lakh vials/ month.
  2. The Central Government should dynamically review the distribution of Remedesivir in the States and Union Territories on a daily basis, on the basis of the need, assessed on the basis of the serious active Covid patients, who need to be administered the said Drug. This is essential to maximise the efficient use of the said Drug.
  3. There are a number of other drugs which are being used for treatment Covid-19 patients, such as Tocilizumab, Favipiravir, Ivermectin, Dexamathasone, Methylprednisolone, Dalteparin, Enoxaparin, HCQ and Baricitinib. As per news reports, there are shortages of some, if not all, of the aforesaid drugs. Looking to the emergent situation, we direct the Central
    Government to immediately reach out to the manufacturers/ patent holders/ licensees so as to forthwith ramp up the production capacities of the above, and all such other medications, as are essential for treatment of Covid positive patients. We may take note of the fact that the Patents Act provides for Compulsory Licenses under Section 84, and Special Provision for Compulsory Licenses or Notifications by the Central Government, under Section 92. Section 100 provides the power of the Central Government to use inventions for purposes of the Government.
  4. Looking to the present day situation, there can be no doubt that a case is made out for exercise of its power by the Central Government/ Controller under the aforesaid provisions of law. At the same time, the interests of the Patent holders/ licensees should be kept in mind, since it on account of their investments, inventions and hard work that such like medicines are made available to the public at large. The best course would be encourage the existing manufacturers to ramp up their production on a war footing. They should also be encouraged to grant voluntary licenses to other entities to manufacture the requisite drugs. However, if such efforts do not fructify soon enough, the Government/ Controller should not hesitate to invoke their jurisdiction and powers under the aforesaid provisions of the Patents Act, since the lives of thousands of people are being lost each day in the country due to COVID. The lives of the people take priority over everything else. Even if such like powers are exercised, the patent holders/ manufacturers can be adequately compensated by fixation of fair license fee. The Central Government should swing into action in terms of this order in this regard without any delay, and report progress on the next date of hearing.
  5. Another aspect that we may take note of is that as per one of the reports, as many as about 44 lakhs vaccines have been wasted out of the 10 crores vaccines allocated to different States. This is because of the restriction with regard to the age, or category of people who are entitled to take the vaccine. According to the present dispensation, people who are above 45 years of age are entitled to take the vaccine. The Government has recently announced that from 01.05.2021, all above the age of 18 years would be entitled to take the vaccine. In our view, wastage of even a single dose of vaccine, when the same is proving to be life–saving, would be a criminal waste. We are informed that each vial of the vaccine has 10 doses. Once the vial is opened, it has to be either fully consumed, or the remainder goes waste. It should be possible for the Government(s) to devise ways and means so as to register volunteers who may be below the age group of 45 years, and above the age of 18 years – who could be called upon to take the residual doses of vaccine, in case, there are doses left unutilised after, say,
    05.00 P.M on each day. That would ensure that all the doses are fully utilised, and not wasted. We may observe that this flexibility is available in other countries such as United States of America. For this purpose, the Government should modify their mobile COVIN application appropriately, urgently. We direct the Government to look into this aspect forthwith and report status on the next date.
  6. List on 22.04.2021.


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