IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND

A I.Epilogue

60Copy pinpoint60. The World Health Organisation35, while discussing the rapid spread of COVID-19 has not only labelled it an epidemic but also an “infodemic”, due to the overabundance of information on the internet, which was riddled with misinformation and disinformation36. This B highlights the key role internet and technology currently has in all our lives, as the COVID-19 pandemic rages on. Indeed, the WHO recently also conducted a study to understand how individuals between the ages of 18-40 years dealt with the ongoing pandemic using social media 37.

61Copy pinpoint61. It is only appropriate then that when many cities in India are suffering through the second wave of the COVID-19 pandemic, many have turned to the internet, using applications/websites to find critical support. On these platforms, online communities led by members of the civil society and other individuals, have assisted the needy in multiple ways – often by helping them procure oxygen, essential drugs or find a hospital bed through their own networks or by amplifying original requests, and even by offering moral and emotional support. However, it is with deep distress that we note that individuals seeking help on such platforms have been targeted, by alleging that the information posted by them is false and has only been posted in social media to create panic, defame the administration or damage the “national image”. We do not hesitate in saying that such targeting shall not be condoned, and the Central Government and State Governments should ensure that they immediately cease any direct or indirect threats of prosecution and arrest to citizens who air grievances or those that are attempting to help fellow citizens receive medical aid. If this does keep happening even after the current order, this Court shall be constrained to use the powers available to it under it contempt jurisdiction.We also direct that all Directors General

35 “WHO” 36 “Managing the COVID-19 infodemic: Promoting healthy behaviours and mitigating the harm from misinformation and disinformation - Joint statement by WHO, UN, UNICEF, UNDP, UNESCO, UNAIDS, ITU, UN Global Pulse, and IFRC” (WHO, 23 G September 2020) available at <https://www.who.int/news/item/23-09-2020-managing- the-covid-19-infodemic-promoting-healthy-behaviours-and-mitigating-the-harm-from- misinformation-and-disinformation> 37 “Social media & COVID-19: A global study of digital crisis interaction among Gen Z and Millennials” (WHO, 23 September 2020) available at <https://www.who.int/news- room/feature-stories/detail/social-media-covid-19-a-global-study-of-digital-crisis- H interaction-among-gen-z-and-millennials>

IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND 343 SERVICES DURING PANDEMIC

of Police shall ensure compliance down the ranks of the police forces within their jurisdictions.

62Copy pinpoint62. In these trying times, those desperately seeking help for their loved ones on these platforms should not have their misery compounded through the actions of the State and its instrumentalities. Further, there are two more crucial reasons why such a clampdown on information sharing must be absolutely stopped immediately.

63Copy pinpoint63. The first reason is because sharing information widely is in itself an important tool in combating public tragedies, like the current COVID-19 pandemic. In K.S. Puttaswamy (Privacy-9J.) vs Union of India38, one of us (DY Chandrachud, J) speaking for four Judges of C a nine-Judge bench of this Court noted academic literature documenting the widespread availability of information and the resultant acknowledgement of the problem is what prevented the drought in Maharashtra in 1973 from becoming as bad as the Bengal Famine of 1943, where the British tried to deny the problem even existed. It was noted thus: D

“267. Civil and political rights and socio-economic rights do not exist in a state of antagonism. The conditions necessary for realising or fulfilling socio-economic rights do not postulate the subversion of political freedom. The reason for this is simple. Socio-economic entitlements must yield true benefits to those for whom they are E intended. This can be achieved by eliminating rent-seeking behaviour and by preventing the capture of social welfare benefits by persons who are not entitled to them. Capture of social welfare benefits can be obviated only when political systems are transparent and when there is a free flow of information. Opacity F enures to the benefit of those who monopolise scarce economic resources. On the other hand, conditions where civil and political freedoms flourish ensure that governmental policies are subjected to critique and assessment. It is this scrutiny which subserves the purpose of ensuring that socio- economic benefits actually permeate to the underprivileged G for whom they are meant. Conditions of freedom and a vibrant assertion of civil and political rights promote a constant review of the justness of socio-economic

38 (2017) 10 SCC 1 H

p. 344 Copy page pinpoint

A programmes and of their effectiveness in addressing deprivation and want. Scrutiny of public affairs is founded upon the existence of freedom. Hence civil and political rights and socio-economic rights are complementary and not mutually exclusive.

B 268. Some of these themes have been addressed in the writings of the Nobel laureate, Amartya Sen. Sen compares the response of many non-democratic regimes in critical situations such as famine with the responses of democratic societies in similar situations. [ Amartya Sen, Development as Freedom (Oxford University Press, 2000) at pp. 178-79.]… C

269. In the Indian context, Sen points out that the Bengal famine of 1943 “was made viable not only by the lack of democracy in colonial India but also by severe restrictions on reporting and criticism imposed on the Indian press, and the voluntary practice of “silence” on the famine that the British-owned media chose to follow” [ Amartya Sen, The Idea of Justice (Penguin Books, 2009) at p. 339.] . Political liberties and democratic rights are hence regarded as “constituent components” of development. [Id, at p. 347] In contrast during the drought which took place in Maharashtra in 1973, food production failed drastically and the per capita food output was half of that in sub-Saharan Africa. Yet there was no famine in Maharashtra where five million people were employed in rapidly organised public projects while there were substantial famines in sub-Saharan Africa. This establishes what he terms as “the protective role of democracy”. Sen has analysed the issue succinctly: F “The causal connection between democracy and the non- occurrence of famines is not hard to seek. Famines kill millions of people in different countries in the world, but they don’t kill the rulers. The kings and the presidents, the bureaucrats and the bosses, the military leaders and the commanders never are famine G victims. And if there are no elections, no opposition parties, no scope for uncensored public criticism, then those in authority don’t have to suffer the political consequences of their failure to prevent famines. Democracy, on the other hand, would spread the penalty of famines to the ruling groups and political leaders as well. This gives them the political incentive to try to prevent any threatening H

IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND 345 SERVICES DURING PANDEMIC

famine, and since famines are in fact easy to prevent (the A economic argument clicks into the political one at this stage), the approaching famines are firmly prevented.” [ Amartya Sen, Development as Freedom (Oxford University Press, 2000) at p. 180.]...”” (emphasis supplied) B As such, preventing clampdowns on sharing of information on online platforms is not just in the interest of individuals sharing the information, but the larger democratic structures of our nation. Without the ready availability of such information, it is entirely possible that the COVID-19 pandemic may turn into a tragedy worse than what it already is. C

64Copy pinpoint64. The second reason is because sharing information widely will help in the creation of a “collective public memory” of this pandemic. The presence of collective public memory, which refers “to an extant and taken-for-granted group memory”39, is important for the creation of knowledge of the problems plaguing us today, so they may be passed on across time40. This is important since we do not have to travel back too much in our past to realise that the pandemic caused by the “Spanish” flu of 1918, which is said to have infected every third person in the world and killed between 50-100 million individuals (compared to the 17 million who died in World War I), has been almost entirely erased from our collective public memory41. Therefore, the widespread sharing of information by individuals living through the COVID-19 pandemic becomes crucial. Furthermore, the role of Courts in creating and preserving this collective public memory cannot be understated. Professors Austin Sarat and Thomas R. Kearns, in their book History, Memory, and the Law, describe the function that is played by Courts in the following terms42: 39 Theodore O. Prosise, ‘The collective memory of the atomic bombings misrecognized as objective history: The case of the public opposition to the national air and space museum’s atom bomb exhibit’, (1998) 62 Western Journal of Communication 3:316-347, pg 318 40 Bryan Hubbard and Marouf A. Hasian, ‘Atomic Memories of the ‘Enola Gay’: G Strategies of Remembrance at the National Air and Space Museum’ (1998) 1 Rhetoric and Public Affairs 3:363-385, pg 364 41 Jonathan Freedland, ‘History suggests we may forget the pandemic sooner than we think’ (The Guardian, 29 January 2021) available at <https://www.theguardian.com/ commentisfree/2021/jan/29/history-forget-pandemic-spanish-flu-covid> 42 Austin Sarat and Thomas R. Kearns, History, Memory, and the Law (University of Michigan Press, 2009) pgs 12-13 H

p. 346 Copy page pinpoint

A “Law in the modern era is, we believe, one of the most important of our society’s technologies for preserving memory. Just as the use of precedent to legitimate legal decisions fixes law in a particular relation to the past, memory may be attached, or attach itself, to law and be preserved in and through law. Where this is the case, it serves as one way of orienting ourselves to the future. B As Drucilla Cornell puts it: “Legal interpretation demands that we remember the future.” In that phrase, Cornell reminds us that there are, in fact, two audiences for every legal act, the audience of the present and the audience of the future. Law materializes memory in documents, transcripts, written opinions; it re-enacts the past, both intentionally and unconsciously, and it is one place where the present speaks to the future through acts of commemoration. Because the litigated case creates a record, courts can become archives in which that record serves as the materialization of memory. Due process guarantees an opportunity to be heard by, and an opportunity to speak to, the future. It is the guarantee that legal institutions can be turned into museums of unnecessary, unjust, undeserved pain and death. The legal hearing provides lawyers and litigants an opportunity to write and record history by creating narratives of present injustices, and to insist on memory in the face of denial. By recording such history and constructing such narratives lawyers and litigants call on an imagined future to choose Justice over the “jurispathic” tendencies of the moment.” (emphasis supplied) Hence, in the present proceedings, we hope to not only initiate a dialogue so as to better tackle the current COVID-19 pandemic but also to preserve its memory in our public records, so that future generations may evaluate our efforts and learn from them.

65Copy pinpoint65. We speak not only as members of this Court, but also as grateful citizens of the country, and commend the outstanding work of our all healthcare professionals (doctors, nurses, healthcare workers, laboratory technicians, ward staff, ambulance drivers, crematorium H

IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND 347 SERVICES DURING PANDEMIC

workers etc.) during this crisis. They have truly gone beyond their call of duty and toiled day in and day out, relentlessly without rest amidst great challenges. It is absolutely necessary to take urgent steps for their well-being to ensure that our appreciation for their tremendous efforts is not reduced to rhetoric. This is especially important since another factor which affects how collective public memory of any event is created is by the rhetoric surrounding it43. As such, our public memory of this public event has to transcend its conception as a “war” against the virus of COVID-19 itself, but rather to remember that it is “the complex epidemiological circumstances that promote these outbreaks and the under-resourced health systems that are tasked with disease containment”44. While the healthcare professionals have been at the forefront of tackling this crisis, we have to recognize their contribution as medical healthcare professionals who have undertaken “to protect public health using proven scientific evidence and best practices and to serve to community at large”45, and not just as “CORONA WARRIORS”. D

66Copy pinpoint66. We also do not hesitate to note that the treatment meted out to these public healthcare professional during this COVID-19 pandemic has sometimes been less than ideal. The following are some of the issues we wish to highlight: (i) Recently, there were reports that the Pradhan Mantri Garib E Kalyan Package Insurance Scheme, an insurance scheme of Rs 50 lakhs which had been extended to about 22 lakh healthcare professionals, was set to expire on 24 March 2021 and would not be renewed. While we are happy to note that UOI’s affidavit of 23 April 2021 states that this Scheme has been extended for one year starting April 2021, F we have also been informed that till date only 287 claims have been settled under it, which includes claims from the families of 168 doctors who died after contracting COVID- 43 Nicole Maurantonio, “The Politics of Memory” in Kate Kenski and Kathleen Hall Jamieson (eds), The Oxford Handbook of Political Communication (Oxford University G Press, 2014) 44 Luke Shors, ‘Waging Another Public Health “War?” ’ (Think Global Health, 26 February 2020) available at <https://www.thinkglobalhealth.org/article/waging-another- public-health-war> 45 Elena N.Naumova, ‘The traps of calling the public health response to COVID 19 “an unexpected war against an invisible enemy” ’ (2020) Journal of Public Health Policy (2020) 41:233-237, pg 233 H

p. 348 Copy page pinpoint

A 19 while treating patients. We direct the Central Government to inform this Court as to how many claims are pending under the Scheme, and the timeline within which the Central Government expects to settle them; (ii) Healthcare personnel are at an obvious heightened risk of contracting the COVID-19 virus. However, we are aware of reports that indicate that infected healthcare personnel are left to fend for themselves without adequate availability of beds, oxygen or essential drugs. Further, some of them have also often been asked to report back to duty within 10 days of first testing positive for COVID-19 (provided they are asymptomatic), even though a longer recuperation period is often recommended. While we are dealing with a terrible second wave of the COVID-19 pandemic, there must be an effective policy to ensure that the nation truly acknowledges their effort and creates incentives for them. D We hope it will be remedied soon by the Central and State Governments through theintroduction of appropriate guidelines and measures; (iii) It is unclear what measures are currently being taken to ensure that healthcare personnel can continue to serve others while not risking the health of their family members. We hope that the respective State Governments, with necessary assistance from the Central Government, can ensure this takes place; and (iv) The Central Government should, we feel examine and ensure that in addition to the schemes it has framed, other facilities such as availability of food, resting facilities during intervals between work, transportation facilities, non- deduction of salary or leave account, if afflicted by COVID 2019 or related infection, overtime allowance, in both public and private hospitals, and a separate helpline for doctors, and healthcare professionals, in cases of COVID 2019 related emergencies, is provided. All these, we feel, would show these professionals that we do not show our appreciation in mere words, but also care for them.

IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND 349 SERVICES DURING PANDEMIC

67Copy pinpoint67. The issues mentioned above are only symptomatic of the other broader issues thatare being faced by healthcare professionals, who are instrumental in combating the pandemic. Hence, we hope their welfare is considered seriously by the Central and State Governments. Further, we would wish to use this order toplace on record our sincerest appreciation for all the public healthcare professionals- not just limited to the doctors, but also nurses, hospital staff, ambulance drivers, sanitation workers and crematorium workers. It is through their dedicated efforts that the effect of COVID-19 pandemic is being currently tackled in India.

68Copy pinpoint68. In light of the continuing surge of infections in the second wave of the pandemic, we direct the Central Government and State C Governments to put on record the efforts taken to curb the spread of the virus and the measures that they plan on taking in the near future. At the same time, we would seriously urge the Central and State Governments to consider imposing a ban on mass gatherings and super spreader events. They may also consider imposing a lockdown to curb the virus in the D second wave in the interest of public welfare. Having said that, we are cognizant of the socio-economic impact of a lockdown, specifically, on the marginalized communities. Thus, in case the measure of a lockdown is imposed, arrangements must be made beforehand to cater to the needs of these communities. E J. Conclusion

69Copy pinpoint69. The present order has primarily considered the submissions (written and oral) ofthe UOI. These submissions have been reproduced here as a matter of public record and to contextualize the clarifications that are being sought by our Court in order to serve its dialogic role. We F reiterate, for abundant caution, that the data and submissions reproduced above are not its endorsement or acceptance. In terms of the above discussion, we hereby pass the following directions: (i) The UOI shall ensure, in terms of the assurance of the Solicitor General, that the deficit in the supply of oxygen to G the GNCTD is rectified within 2 days from the date of the hearing, that is, on or before the midnight of 3 May 2021; (ii) The Central Government shall, in collaboration with the States, prepare a buffer stock of oxygen for emergency purposes and decentralize the location of the emergency H

p. 350 Copy page pinpoint

A stocks. The emergency stocks shall be created within the next four days and is to be replenished on a day to day basis, in addition to the existing allocation of oxygen supply to the States; (iii) The Central Government and State Governments shall notify B all Chief Secretaries/Directors General of Police/ Commissioners of Police that any clampdown on information on social media or harassment caused to individuals seeking/ delivering help on any platform will attract a coercive exercise of jurisdiction by this Court. The Registrar (Judicial) is also directed to place a copy of this order before all C District Magistrates in the country; (iv) The Central Government shall, within two weeks, formulate a national policy on admissions to hospitals which shall be followed by all State Governments. Till the formulation of such a policy by the Central Government, no patient shall be denied hospitalization or essential drugs in any State/UT for lack of local residential proof of that State/UT or even in the absence of identity proof; (v) The Central Government shall revisit its initiatives and protocols, including on the availability of oxygen, availability and pricing of vaccines, availability of essential drugs at affordable prices and respond on all the other issues highlighted in this order before the next date of the hearing, that is, 10 May 2021. Copies of all affidavits to be served upon the Amici in advance; and F (vi) Several other suggestions have been made before this Court in IAs and writ petitions filed by diverse parties. In order to streamline the further course of hearing, we have requested the Amici to collate and compile these suggestions which would be taken up later. The present order has focused on G certain critical issues in view of the urgency of the situation.

Nidhi Jain Directions issued.