Suo-moto cognizance was taken up by Supreme Court in regard to the issue of distribution of life-saving drugs like Remdesivir, Tocilizumab, Favipiravar which are vital for the treatment of Covid-19 patients. The matter was taken up by a bench of 3 judges comprising of Justices DY Chandrachud, L Nageswara Rao, and S Ravindra Bhat.
The drugs like Remdesivir, Tocilizumab, Favipiravar are in very much demand as India witnessed the second wave of Covid. These drugs are being injected in a series of doses as a part of treatment, although doctors recommend these drugs to patients at high risk. India has seen a rise in the curve of demand for these drugs, therefore people are facing shortages across the nation. The Court asked the Solicitor General that why compulsory license have not been issued by the Centre under Section 92 of the Patent Act, so that loyalty of the manufacturer can be tested? By evoking Section 92 of the Patents Act, the license for the patent of patented drugs during health emergencies can be issued by the Central Government, and by using Section 100 the Centre can use patented inventions for government purposes.
The present situation demands using provisions of TRIPS negotiation on compulsory licensing. The bench referred to the NATCO case where a license to produce a life-saving drug patented by a German Company for Kidney Cancer was given to a Hyderabad-based drug producer by the Indian Government. The bench also referred the country like Germany, Canada, and France where such compulsory licenses for the essential drugs were issued. The power of the Central Government to regulate the power of drugs was mentioned by the Court. The bench questioned the decision of different pricing for the state, center, and private hospitals and raised concerns about equal distribution. The bench said that the National Immunisation Program should be given priority and the government should take responsibility for the distribution of vaccines to states as private manufacturers do not know the requirements of different states. The Court quoted "You cannot follow private sector model during the times of crisis".
The bench also mentioned the price of vaccines in the USA and Europe which is lower than the prices of vaccines in India. The Delhi High Court has also suggested the center on considering compulsory licensing of the essential drug. The bench has asked the centre to answer and respond to the issues raised by the bench. The matter will be taken up on 10th May.