India is going through one of the toughest periods in its post-independence era as a consequence of the second wave of the COVID-19 pandemic, which has exposed technical incompetency and serious lapses in our health system.

The situation is getting worse by the day, with reports emerging that some people have started hoarding medicines and various medical necessities like oxygen cylinders, oxygen flow meters etc. Hospitals and top pharma companies had slashed the prices of medicines and the government has issued necessary guidelines to regulate the price of such lifesaving drugs and equipment. However, due to the hoarding of drugs and medical equipment, the mortality rate has been on a rise.

Recently, the Prime Minister of India instructed all the Chief Ministers that they have to deal strictly with the hoarders as the country cannot stand quietly while people die due to the shortage of such essential goods. As a result of this, the Delhi government has directed all District Magistrates to institute a Special Task Force (STF) to trace the hoarders and penalize them under Criminal Law. The Government of Odisha has also formed 22 squads to prevent hoarding of the COVID-19 drugs.

There are a number of laws pertaining to hoarding of commodities, including medicine and medical equipment. The Prevention of Black Marketing & Maintenance of Supplies of Essential Commodities Act, 1980 was enacted with an objective to allow Central and State governments to pass orders to detain persons who seek to control the production, supply or distribution of any commodity which is an essential commodity as defined under the Essential Commodities Act of 1955. The Act also contains provisions on the manner in which these detention orders are made.

Section 3 of the said Act states that whoever instigates any person to commit any offence punishable under the Essential Commodities Act, or any other law enforced for the time being related to production, supply or distribution of an essential commodity, with an intention to make gain in any manner, shall be punished. It is pertinent to note here that masks, medicines and medical equipment are covered under the Essential Commodities Act.

Section 4 states that if a person is found to avoid the order of detention or is absconding, the government or officer shall draft a report in writing to the Metropolitan Magistrate or Judicial Magistrate First Class, who shall pass an order against such person under Sections 82, 83, 84 and 85 of the Code of Criminal Procedure (CrPC). The provisions of Section 4 are also applicable once the authorities have an apprehension that the person against whom orders of detention have been made, is absconding. In case of failure to make an appearance before the court, such person shall be imprisoned for a term extending one year and/or fine. These offences fall within the category of cognizable offences.

The Central Drug Standard Control Organization (CDSCO), Director General of Health Services, under the aegis of the Union Ministry of Health and Family Welfare, plays an important role in regulation of drugs, medical devices and diagnostics. as well as their import and registration. The Drug Controller General of India (DCGI) is the Head of the Department and envisages uniform implementation of the provisions of the Act & Rules made thereunder by regulating drugs and cosmetics.

An individual can also approach the local court to file a criminal complaint against such hoarding and illegal holding of such medicines under Section 200 of the CrPC. The Magistrate can take cognizance of such matter after examining the complainant on record.

Courts crack down on black marketing

Several High Courts have directed authorities to crack down on hoarding of medicines and medical equipment. People who are buying these hoarded products must inform the police and state administrations to ensure that hoarding of these essential commodities is curbed.

Recently, the Delhi High Court pulled up the Delhi government for not taking any action on black marketing and hoarding of COVID-19 medicines and oxygen cylinders. The Court warned that it will not hesitate to punish anyone who is found obstructing oxygen supplies. The Allahabad High Court also directed the State government to take stern action against those who are hoarding oxygen and are involved in its black marketing.

A recent order of the High Court of Uttarakhand called for affixing of QR Codes on Remdesivir packets. The Court opined that it is the constitutional mandate of the State to protect its people and it could not act in a reckless manner considering the situation that is prevailing in the State. While issuing a number of directions to the State government, the Court also urged the State to motivate people who have recovered from the virus to donate their plasma.

The High Court of Jharkhand also weighed in, noting that discrepancies on the part of the government could not be tolerated as this has lead to oxygen paucity throughout the State.

The Supreme Court also posed important questions to the Central government by taking suo motu cognizance of the COVID-19 crisis unfolding across the country.

The need for judicial "overreach"

The manner in which constitutional courts across the country have come together and exercised their powers while being unable to function in a full-fledged manner signifies the power and stature of our courts. Throughout the country, people are praising the judgments of the High Courts as well as the apex court as such orders have come at a point in time when people are suffering and are left with no option.

Instances of this was seen when the Madras High Court stood tall against the Election Commission of India, when the Delhi High Court stood for lives of its people by issuing a contempt notice to the Centre for non-supply of Oxygen, and the High Court of Bombay directed the Maharashtra government to grant all approvals for the setting up of a manufacturing plant to produce Covaxin.

Such "judicial overreach" becomes an essential component of governance in a country where the inadequate working of the executive branch of the government causes severe damage to the lives of the people.

Shreyans Ritolia is an Advocate practicing at the Jharkhand High Court. Aniket Rai is a fourth-year law student at UPES Dehradun. The authors would like to thank Advocate Shahnawaz Abdul Malik for his valuable input.