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IN
PAPER BOOK
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IN
TO
THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS
COMPANION JUDGES OF THE HON’BLE SUPREME
COURT OF INDIA.
with the state of affairs in our nation on account of the rampant spread of
Hon’ble Court on 12.06.2020, the Applicant deems fit to discharge his duty
as a health expert invested in community medicine over the last few decades
a. The Applicant was the first person to raise alarm against AIDS in India in the
year 1985 and detected HIV infections accordingly. He started India’s first
AIDS Clinic in the year 1986 at the government run JJ Hospital, Mumbai. He
is a globally acclaimed HIV expert, credited with bringing India on the AIDS
control map of the world. Presently, he is the President of AIDS Society of
India (ASI) and Secretary General of Peoples Health Organisation India
(PHO) and Organized Medicine Academic Guild and is Governing Council
member of International AIDS Society (Headquartered at Geneva).
f. He served as National AIDS Committee Joint Secretary, Govt. of India for the
period from 1995-1997, on the Governing Board of AIDS Society in Asia and
Pacific (ASAP) for the period from 1992-1994, was AIDS Advisor for the
States of Goa and Uttar Pradesh for the period from 1995-1999 and was on
Global AIDS Policy Coalition and AIDS and Reproductive Health Network
boards under the legendary Human Rights crusader who had started Global
Program on AIDS under the WHO, Dr Jonathan Mann for the period from
1992-2000.
g. He founded Asian Solidarity against AIDS-ASAA in the year 1991 and was
its Secretary till the year 2004. For the period from 1993-2008, he was Editor-
Publisher of AIDS ASIA for ASAA, Asia’s first AIDS newsletter; which
received the Best NGO Magazine award for the years 1999, 2000 and 2003 by
the Association of Business Communicators of India.
2. That the Applicant has also been actively involved in pursuing various
medico-legal cases and the Hon’ble High Court of Bombay has taken due
4th in terms of the number of cases, behind U.S.A., Russia and Brazil. In
terms of the daily new Covid-19 cases, India is number three globally - after
Brazil and USA. In terms of daily new Covid-19 deaths, India is number
three globally - after Brazil and USA, and likely to be number two shortly
India is number two globally - only next to USA. Earlier, India did not even
divide active cases into ‘mild’ & ‘serious / critical’ and started reporting
‘serious / critical’ cases only after 30.05.2020. Strangely, the number of 8944
‘Serious / Critical’ cases is stagnant and unchanged for more than a week.
Further, the source of Covid - 19 infection in more than 50% of the cases in
4. That this Hon’ble Court vide its Order dated 12.06.2020, inter-alia, directed
as under:
scourge of Covid - 19. The number of tests conducted in India till 9:00 am
on 15.06.2020 as per the Indian Council for Medical Research (ICMR) is
57,74,133. This, as compared to the other nations reflects the low rate of
The severity of the said situation can be gauged from the fact that India was
4186 / million population which is lesser than 6% of the tests per million
Chile.
under:
(RT-PCR). This is a gold standard and a direct test done on the swab
nasal or a throat swab and extracting the Ribonucleic Acid (RNA) which
is the genetic material of the virus. If it shares the same genetic sequence
test can be false negative, in about 30% cases, if the sample doesn’t
In this two point-of-care tests have been also added and they have been
manufactured by Molbio
Manufactured by Cepheid.
They are single cartridge or chip, so can be done even one test, with fast
turn-around time,40 min. for report and are categorised as PoC test,
means test can be done in clinic or hospital itself and thus sample need
2. Serology or the Indirect Antibody Test – The said tests are conducted
of Coronavirus in the body. Pertinently, the said tests do not detect the
which take about 2-3 weeks’ time to develop once the virus infects the
A. Rapid Antibody Test – The said test can be done singularly on whole
480 at tests at one point of time. All the blood banks and mid to large
indicates the factum of a patient having been previously affected. The said
9. It is humbly submitted that the need of the hour, as has already been pointed
out by this Hon’ble Court vide its Order dated 12.06.2020 is to increase
testing by the States which are grappling with the spread of Covid -19. It is
possible reasons are mentioned for lack of adequate testing and proposed
21.03.2020. Vide the said circular, it was stated, inter-alia that the
testing sample should not exceed Rs 4,500/-. This may include Rs.
(Pages 35 to 38)
2. It is pertinent to state that above costs apart from being high, labs
heavy burden not just on the patients but even the Government run
12.06.2020 fixed the cap at Rs. 2,400/- and Rs. 2,900/- for the
(pages 41-42)
earliest.
run a single RT-PCR test. If a pool comes positive, then all five
samples from that pool have to be retested. For illustration, for 100
with its circular dt. 13.04.2020 had suggested this and had taken up
issued by the ICMR to the Chief Secretaries of all the States. The
test kits hot spots and for surveillance. A true copy of the Protocol
22.04.2020 was issued to all the States whereby it was stated that
ICMR will collect data from various States to assess the scope and
utility of such antibody kits. A true copy of the Protocol for using
to the States thereby directing them not to use the rapid antibody
48) .
It was inter-alia stated in the said advisory that for several viral
infections, antibody tets are useful for disease detection after 5-7
infection and last for several months. Therefore, the IgG test is
A true copy of the Press Release - ICMR advises States to conduct sero-
(pages 49-52) .
10. Further, vide ‘Advisory on use of ‘Rapid Antigen Detection Test for Covid–
19’ dated 14.06.2020 issued by the ICMR – it was suggested by the ICMR to
employ ‘Rapid Antiden Detection’ tests in conjuction with the RT-PCR tests
11. It is relevant to state that the said advisory also provides that the scientists at
indigenous ELISA test for antibody detection for SARS-COV 2. Further, the
advisory states that in order to fast track production and increase availability
companies.
12. That, from the aforesaid, the importance of Rapid Antibody Testing in the
disease.
13. It is stated that this Hon’ble Court vide its Order dated 12.06.2020 has already
thereby stating that no positive report shall be shared by the laboratory with
the patient directly. The laboratory shall share the report only with
receives a positive report, it shall share the positive report with the patient. A
56-58).
(MCGM) and once MCGM receives positive report, it shall be its duty to
15. It is humbly stated that the aforesaid Addendum is in direct violation of the
Order dated 12.06.2020 passed by this Hon’ble Court whereby it was held,
inter-alia, that increase in testing facility is the duty of the State so that
people may come to know about their health status regarding Covid – 19 and
they may take appropriate care and treatment of Covid – 19. It is submitted
submits that though sharing of such information with the health and other
kept informed of his status. Further, the deeming of this status as ‘positive’
by any patient will only lead to disruption and delay in tackling the ongoing
hospitalized with immediate effect. The said addendum insofar it states that
the ‘positive’ report cannot be shared with the patients being unconstitutional
16. That this Hon’ble Court may therefore grant indulgence to the Applicant
17. The Applicant states that he has no other alternative, equally efficacious
18. The Applicant herein reserves the right to file a detailed affidavit along with
19. This application is being moved bonafidely and in the nature of public
interest.
PRAYERS
In the aforesaid facts and circumstances, the applicants most humbly pray for
Direction to the Respondent States to acquire the IgG ELISA test kits in
terms of the advisory dated 30.05.2020 and begin testing on the possible
the Respondent States in acquiring the Rapid Antibody kits from the
e) Declare the actions of the laboratories insofar they charge Rs. 4,500
i) Quash and set aside the Addendum dated 13.06.2020 to the Circular
insofar it directs laboratories not to share positive test report with the
patients;
j) pass such other or further order as this Hon’ble Court may deem fit in the
Filed by
New Delhi (Rohit Rathi)