Leena Tuteja vs Union Of India & Ors.
2015 Latest Caselaw 2528 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 25th March, 2015

+        W.P.(C) No.1879/2015 & CM No.4220/2015 (for directions).

       LEENA TUTEJA                                             .....Petitioner
                         Through:     Mr. Gaurav Bahl, Adv.

                                    Versus

       UNION OF INDIA & ORS.                                ..... Respondents

                    Through:          Ms. Monika Arora with Mr. Prateek
                                      Joshi, Advs. for UOI.
                                      Ms. Zubeda Begum with Ms. Sana
                                      Ansari, Advs. for GNCTD.
                                      Mr. Kapil Dutta, Adv. for Mr. Ajay
                                      Arora, Adv. for MCD.
                                      Mr. R. Mohanty, Adv. for R-4.
                                      Ms. Vatika Sharma, Adv. for R-5.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This petition under Article 226 of the Constitution of India, filed as a

Public Interest Litigation (PIL) seeks, (i) a direction to the Government of

National Capital Territory of Delhi (GNCTD) to immediately establish a

multiple testing laboratory at all the Government Hospitals wherein the

identification test for Swine Influenza popularly known as Swine Flu / H1N1

can be conducted; (ii) a direction to the Union of India (UOI) and GNCTD to

immediately provide public awareness and information to the public at large

about the viral infection called Swine Influenza; (iii) a direction to the Lt.

Governor, Delhi to in turn direct all the hospitals within the city of Delhi to

keep the medicine for the treatment of Swine Influenza and to ensure that

sufficient and required amount of this medicine in the form of tablet or

injection is available with all the hospitals and nursing homes of Delhi; (iv) a

direction to the UOI, GNCTD and Lt. Governor, Delhi to permit the medical

shops to sell this medicine off the counter in response to a medical prescription

being tendered; (v) a direction for immediate shut down of classes KG and

Nursery to ensure that small children of Delhi do not get affected; and, (vi) a

direction for providing "huge number of ventilators in all government hospitals

to meet with the eventuality of number of patients coming to the hospital who

are affected by Swine Influenza".

2. Though from the steps being taken by various governmental agencies to

fight the epidemic of „Swine Flu‟ in the city, as was evident from the media

reports, it appeared that the requisite efforts were being made but considering

the fact that there were also reports of some deaths having resulted from Swine

Flu, we entertained the petition and issued notice thereof.

3. GNCTD has filed an affidavit wherein, besides pleading information,

clinical presentation, classification, surveillance, symptoms and transmission of

the disease, it has informed that, (i) to contain H1N1 in Delhi, an Expert

Committee was constituted to monitor the upsurge of H1N1 influenza, death

audit, reviewing the preparedness in hospitals, districts, health centres,

laboratories, logistics etc.; (ii) meeting of the District Surveillance Officers

(DSOs) of the 11 districts was conducted on 10th January, 2015 to review the

real-time preparedness of the hospitals under their jurisdiction regarding stock

of medicines, Personal Protection Equipment (PPE), Hand Rub, Viral

Transport Media (VTM), sensitization of doctors raising awareness etc.; (iii) 26

hospitals in the government and private sector have been designated for

treatment and management of influenza patients; (iv) process of creating BSL 3

laboratories in Maulana Azad Medical College and University College of

Medical Sciences and extension of new government labs is under process; (v)

hoardings / metro panels, flex boards with information regarding seasonal flu

including H1N1 have been affixed in all the Delhi government dispensaries /

mobile health clinics cross Delhi; (vi) guidelines and specific Standard

Operating Procedures were prepared and disseminated to all the Nodal Officers

of identified hospitals, DSOs and Medical Officers of health facilities; (vii)

regular monitoring and day to day analysis is being undertaken under the

Integrated Disease Surveillance Project (IDSP); (viii) Press and media are

updated regarding current status and measures being taken; (ix) continuous

coordination is being maintained with National Centre for Disease Control

(NCDC) and Emergency Medical Relief (EMR) Divisions of Directorate

General of Health Services, Government of India for updates and change in

guidelines of H1N1 influenza; (x) three more private labs at Sir Ganga Ram

Hospital, Max Super Specialty Hospital and sequence referral lab have been

given provisional permission for testing H1N1 samples; (xi) letters were

written to all private laboratories to send five positive samples and two

negative samples to the NCDC for quality control purpose; (xii) doctors and

paramedical staff in all designated hospitals have been trained; (xiii) 1000 PPE

kits were given to Rajasthan Government on loan basis for managing seasonal

influenza; (xiv) Action Taken Report is being sent to EMR on daily basis; (xv)

messages regarding seasonal flu are being regularly broadcasted; (xvi)

directions had been issued for priority admission / treatment of influenza like

illness in General Ward; (xvii) request for buffer stock of the medicines had

been made; (xviii) DO‟s and DON‟Ts were disseminated to all hospitals; (xix)

list of designated hospitals and labs with Nodal Officers was uploaded on the

Directorate of Health Services website; (xx) supply order of procurement of

reserve stock of medicine had been placed; (xxi) medicines and PPE kits were

distributed to all hospitals as per demand; (xxii) permission had been extended

to all hospitals having more than 100 beds with ventilator for treatment of

H1N1; (xxiii) adequate stock of medicines were being maintained at

Directorate of Health Services (DHS) Headquarters; (xxiv) adequate stock of

Sample Collection kit, VTM, PPE, Masks, 03 layered Surgical Masks, Hand

Rub etc. are available at designated hospitals; (xxv) private labs were

sensitized to perform test only on category „C‟ patients so that unnecessary

tests are avoided; ceiling amount for testing H1N1 was / has been fixed at

Rs.4,500/-; (xxvi) awareness campaign had been lodged in print and electronic

media; (xxvii) Drug Controller, GNCTD is consistently in touch with the

chemists in the city and there is no shortage thereof; (xxviii) licenses had been

issued to 40 more chemists for sale of the said drug to remove the panic

regarding non-availability of drug; (xxix) continuous meetings are being

conducted to ensure compliance of all the directions; and, (xxx) action is being

taken with respect to all the defaulting persons / institutions.

4. UOI in its affidavit has also detailed the steps taken by it and has further

informed that, (i) that the drug / medicine recommended by World Health

Organization (WHO) for combating the disease is manufactured in India; (ii)

that the meetings had been held with the manufacturers of the drug and the

manufacturers have confirmed that they have sufficient capacity and stock of

active pharmaceutical ingredients to meet the requirements; (iii) that one of the

manufacturers is a Central Public Sector Undertaking; (iv) that the said

medicine / drug i.e. „Oseltamivir‟ however cannot be sold over the counter - it

is to be made available only against prescription by a qualified doctor and sold

through a chemist with license under Schedule X of the Drugs and Cosmetics

Act, 1940; (v) that the drug is also available through public health system; and,

(vi) irrational use of the drug may lead to a resistance thereagainst being

developed, rendering the drug incapable of fighting the virus.

5. We are satisfied with the steps already taken and being taken by the

GNCTD and UOI in the matter. The counsel for the petitioner is also satisfied

but has contended that, (i) as far as UOI is concerned, its attention is directed

against the States of Rajasthan, Madhya Pradesh, Telangana, Maharashtra,

Karnataka, West Bengal and Jammu & Kashmir and not adequate steps have

been taken vis-à-vis Delhi and should be asked to clarify; this contention is

made on the basis of the information available on the website of the Ministry of

Health and Family Welfare, Government of India; (ii) that again as per the

website of UOI, only 19 laboratories all over the country are available for

testing influenza; and, (iii) that on the ground level there is a shortage of

medicine and masks for protection.

6. The petitioner suggests, (i) that passengers arriving at Delhi Airport and

at Delhi Railway Stations from hugely infected States such as Rajasthan,

Madhya Pradesh, Gujarat, Telangana, Jammu & Kashmir should be thoroughly

checked both at Domestic and International Airports and Railway Stations and

should be provided with masks free of costs; (ii) hoardings should be put up

at all public places informing about the disease; (iii) it should be made

mandatory to use only N95 masks and use of any other kind / nature of masks

should be prohibited; and, (iv) a vaccination should be developed for the

disease.

7. The counsel for the petitioner has orally argued that the price of the test

should be reduced from Rs.4,500/-. It is contended that very few can afford the

said price.

8. As far as the contentions of the counsel for the petitioner based on the

websites are concerned, we would rather proceed on the basis of the affidavits

filed on behalf of GNCTD and UOI before this Court and the contents of which

have not been controverted and as per which the requisite measures have been

taken / are being taken. We, in the circumstances are also not able to accept the

general statement of the counsel for the petitioner, without any statistics and

basis, of the alleged shortage of the medicines and the N95 masks to prevent

Swine Flu.

9. The suggestions made by the counsel for the petitioner though well

meaning, are not practical. We during the hearing enquired from the counsel

whether he has any idea of how many flights and trains come to Delhi from the

States which are alleged to be heavily affected and how many passengers they

carry. In our opinion it will be virtually impossible to implement, even if we

were to issue a direction for screening all such passengers as is suggested. We

have further asked as to how much time it takes to screen each passenger and

whether not the passengers till the reports of the test conducted are received

would be required to be quarantined. The counsel of course has no idea of all

these matters and has made the suggestion in a utopian state. The suggestion is

also unmindful of the huge influx by road, of people from some of such States

into Delhi, including on daily basis.

10. As far as the suggestions for public awareness are concerned, from our

own experience of living in Delhi, we can record that there is no deficiency

therein. The subject is being actively debated and discussed in all strata of the

society. Already enough panic exists about the disease. It is in the affidavit of

GNCTD that it is only a certain category of influenza which requires the

requisite preventing and protective steps to be taken. Similarly, as far as the

plea for reducing the cost of the tests is concerned, without knowing as to what

are the manufacturing and marketing costs and how much is the profit element,

no general direction can be given. We have no reason to disbelieve that the

appropriate authorities constituted in this regard have applied themselves to the

said issue as well. Also, from the affidavits, sufficient steps towards research

and prevention already appear to be underway.

11. Moreover, these are all policy and administrative matters, in which the

Courts ordinarily have no jurisdiction. The Court is neither equipped to nor

can itself take over the task of administering the city and dealing with problems

thereof. No case of the failure of administration is made out, for this Court to

step in.

12. We therefore do not deem it necessary to keep this petition pending any

longer and dispose of the same with the rider of course that if in future it is

deemed expedient that any further step on the subject needs to be taken and the

government / governmental agencies are lacking in it, this judgment shall not

come in the way of a fresh plea therefor being made.

The petition is disposed of.

No costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE

MARCH 25, 2015 „pp‟..