A Special Bench of the Supreme Court is scheduled to resume its marathon hearings on COVID-19 management from Monday, following a nearly month-long hiatus after the lead judge, Justice D.Y. Chandrachud, caught the virus amidst a devastating second wave.

The hearings were interrupted abruptly and immediately after the Bench, also comprising Justices L. Nageswara Rao and S. Ravindra Bhat, constituted a National Task Force to scientifically study and recommend a fool-proof mechanism for allocation of oxygen to States. The Supreme Court had constituted the 12-member Task Force to streamline and ensure the “effective and transparent” allocation of liquid medical oxygen on a “scientific, rational and equitable basis” to States and Union Territories fighting COVID-19. The apex court had expressed its dissatisfaction at the Centre’s earlier “oxygen-for-bed” formula. This “rough-and-ready” arrangement, as the court had put it, was based on calculating the allotment of oxygen based on the number of ICU/non-ICU beds.

The court had also repeatedly expressed its acute dissatisfaction at the haphazard and lacklustre distribution of oxygen even as the country experienced its worst death toll. Patients were seen lined up outside hospitals waiting for emergency care as they struggled to stay alive. Hospitals had sent SOSes on social media about their rapidly depleting oxygen stocks.

The Bench had intervened to ensure that the Centre provided oxygen supply to the National Capital. Justice Chandrachud had made it clear to the Centre that the Supreme Court would not remain a “mute spectator” to a national calamity.

On Monday, the Bench may discuss a May 9 affidavit filed by the Centre saying that bringing COVID-19 vaccines under a statutory regime would be “counter-productive” at this stage. In fact, this position in court contradicts India’s position globally. India, along with South Africa, had initiated a proposal for the temporary waiver of certain provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to facilitate fair, affordable and universal access of COVID vaccines and medicines, especially for developing countries.

The May 9 affidavit also has the Centre argue that judiciary should keep its hands off the management of the COVID-19 crisis and its “waves/surges”.

“Though it (Centre) is duty bound to fully assist this Honourable Court… the policy, strategy and steps taken by the Executive, based on expert medical and scientific advice, have to be appreciated in the context of the medical crisis,” the affidavit said. It said decisions were taken after “detailed deliberations at the highest Executive level”. Hence, no “interference” is called for in judicial proceedings.