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Cannot direct Centre to change State-wise allocation of Remdesivir as it may have trans-border impact: Bombay HC

In a special urgent hearing on Sunday, the Nagpur Bench of Bombay High Court declined to direct the Centre to increase the allocation of Remdesivir drug injections to Maharashtra, observing that it may having a transborder impact on the allocation made to other States.

The Court was informed on Sunday that the Central government had revised the State-wise allocation of Remdesivir and reduced the number of Remdesivir to be allocated to Maharashtra as the number of active cases had reduced.

The Court, however, urged the Centre to reconsider its decision to cut down the allocation of Remdesivir to Maharashtra by 14.5% for the period between May 1 and May 10. The Bench pointed out that this reduction is not proportionate to the reduction in active COVID-19 cases, which had come down only by about 1.2%.

“We would request the Central Government to reconsider its decision making state-wise allocation for the aforestated period of 10 days and increase the allocation so as to make it consistent with the reduction of number of active cases in the State of Maharashtra,” the order said.

Advocates SP Bhandarkar (amicus curiae) and TD Mandlekar had highlighted this issue and requested the Court to direct the Central government to allocate the drug on the basis of the share of each State in the national figures of active COVID-19 cases. The present State-wise allocation of Remdesivir did not reflect this consideration, the Court was told.

They also added that if such a direction is passed, it would not necessarily lead to a reduction in the allocation made to other States. In this regard, it was argued that the production capacity of the seven pharmaceutical companies manufacturing Remdesivir is more than what was indicated in the Centre’s latest Remdesivir allocation order of May 1.

A Bench of Justices SB Shukre and AG Gharote, however, refused to issue such a direction and opined that it is better that the Central government or the Supreme Court take a call on this issue. The order stated:

“As of now, we do not have any figures of the actual production of Remdesivir vials by all the 7 manufacturing companies. Besides, if any direction as is suggested is to be passed by this Court at this juncture, there is a possibility of the direction having its trans-border impact, and that too, without knowing anything about the larger scenario. Therefore, we are of the view that this issue can be best decided only by the Central Government and at the apex level of judicial system of India and as such we do not think it appropriate to issue any such direction.”

The Court was hearing a suo motu Public Interest Litigation (PIL) registered to consider issues concerning COVID-19 management in the city of Nagpur.

The urgent hearing was taken up on Sunday to ensure compliance with the Court’s earlier directions with respect to the supply of Remdesivir injections.

The Court was informed that out of the amount directed by the Court, 19,040 injections were received by the State and 960 vials would be received by Sunday evening.

The Court directed the Commissioner of the Food and Drugs Administration (FDA), Nagpur to ensure that the backlog of Remdesivir injection supply is also cleared. The State was directed to see that no gap is created in the demand and supply in terms of Central government order.

The Bench further passed certain directions for the pharmaceutical companies, which are as follows:

  • That no company shall supply Remdesivir vials to private purchasers in the State unless the daily quota of supply to the State is first fulfilled by them;
  • Liberty was granted to the State to take action against the erring company for violating the above direction and “jeopardizing the precious human life”;
  • Companies were directed to “not wait for the receipt of supply orders from the State government for the reason that placing of supply order is a part of completion of formalities and the formalities can always be completed after the actual supply has been made”;
  • All pharmaceutical companies are to submit its Remdesivir production figures to the State of Maharashtra and also upload those production figures on their respective websites, on a daily basis. Any violation would be viewed seriously and would be liable for prosecution. Further the FDA was also directed to upload these production figures on a daily basis, the figures of vials it actually receives and the backlog on a given day;

This apart, the Court also called for the State government to set up a centralised system for Remdesivir procurement and distribution. Until such a system is set up, the Bench has directed the Health Secretary to issue a fresh district-wise allocation order of Remdesivir vials, based on the latest, May 1 allocation order of the Central Government, which should be effective for a period from May 1-9. This order has to be issued within 24 hours and uploaded on the website of the Health Ministry and the website of the FDA.

This system would be in operation till the whole process of procurement, allocation and distribution of Remdesivir vials is centralized by the State of Maharashtra. Once such centralization takes place, the State of Maharashtra would have to consider modifying this system appropriately,” the Court added.

On Friday, the Bench had directed the State to allot 20,000 vials to Nagpur, Akola and Bhandara districts by evening in addition to the regular quota.

They had also warned that any failure to provide the drug would be considered a violation of the fundamental right of citizens under Article 21 of the Constitution and also attract penal provisions against the erring officials.

The Bench further expressed that it would lead to an unmitigated disaster if even courts do not rise to the occasion.

On Saturday, the Court had directed all concerned authorities who would be involved in granting import marketing permission and import license to expeditiously grant the requisite permission in accordance with the law.

The Court also directed the District Collector to take immediate steps to utilise the funds of Rs. 2.05 crores received from the Western Coalfields Limited, Nagpur for the purpose of setting up oxygen plants at any of the COVID hospitals providing treatment free of cost, at his discretion.

Prior to this, at a special hearing held at 8 PM last week, the Court had directed that out of the 10,000 vials of the Remdesivir ordered by them to be supplied to the district, a supply of 6,752 vials of Remdesivir shall be provided latest by April 22 to be fairly distributed among all hospitals.

The next hearing in the matter will be on May 5, 2021.


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