Midnight court hearing for Yakub Memon and Teesta Setalvad but none for cancer patient who died waiting despite 57 listings: The story of two Indias

A heartbreaking incident has come to light where a woman suffering from breast cancer passed away, 57 listings later, awaiting a verdict on her request to lower the price of a highly expensive life-saving drug. The woman had approached the Kerala High Court in June 2022, requesting access to life-saving breast cancer medicines named Ribociclib and Abemaciclib, which cost around ₹1.5 lakh a month. Ribociclib costs about ₹78,468.75 per month, and Abemaciclib, which is sold at ₹47,752 to ₹95,504 per month. The cost of the drugs was beyond what a woman or any ordinary person in India could afford. Therefore, she had approached the Kerala High Court through a petition seeking its intervention to make the drugs accessible at lower and more affordable prices. In her petition, she had requested a government-use license under Section 100 of the Patent Act, which would have facilitated the local production of a generic version of the drug and could have enabled access to the drug at affordable prices. Notably, generic versions of medicines are 90%-95% cheaper than those of the originator. The government refused to issue a government-use license for the drugs, stating that breast cancer did not constitute a matter of national urgency. In such a situation, a timely decision of the court could have been crucial in saving a precious life. The drugs remain inaccessible to many patients due to high costs and patent protection, which prevents other manufacturers from producing or selling the medicine at lower prices without the consent of the patent holders. The matter was repeatedly listed before the High Court, as many as 57 times and adjourned 40 times and placed before 8 different judges. It was listed on January 21, 2023, for an exclusive final hearing, but the hearing was postponed because of a roster change. The patient passed away in September 2022, awaiting the verdict on her request. Justice delayed and a life lost Following her death, the High Court, on September 16, 2022, decided to continue hearing the matter as a suo motu case under the title ‘In Re Exorbitant Pricing of Life Saving Patented Medicines.’ The matter is scheduled for hearing on 15th July before a Bench of Justice Harishankar V Menon. Before the next hearing of the matter, a letter was addressed by the co-conveners of the Working Group on Access to Medicines and Treatment, Jyotsana Singh and KM Gopakumar, to the Kerala High Court Chief Justice Soumen Sen, flagging the delays in the judicial proceedings. The letter has also been sent to President Droupadi Murmu and the Chief Justice of India Surya Kant. “The one who started this fight is no more. This fact shows how costly a delay can be, especially when it comes to life-saving drugs,” the letter stated, highlighting how the patient died awaiting relief from the court. It points out how the delays in deciding cases involving access to essential medicines deprive patients of their fundamental right to health and life under Article 21 of the Constitution of India. “Hon’ble Chief Justice, the issue at hand goes beyond individual suffering and addresses the collective health and dignity of women in India. Breast cancer disproportionately impacts women’s health, and access to life-saving medicines is essential for reducing preventable deaths. Delays in adjudicating cases involving access to essential medicines deprive patients of their fundamental right to health and life under Article 21 of the Constitution of India, which has repeatedly been underlined by the Hon’ble Supreme Court of India,” the letter stated. It further urged the Chief Justice to take administrative steps to ensure an early and uninterrupted final hearing of the matter. During the four months of her life, since June 2022, the matter was listed 57 times before the Kerala High Court, but the judicial procedures outlasted the patient’s life. She was not asking for a privilege or special treatment. She was only asking for access to life-saving drugs that could have prolonged her life. She endured years of the painful disease and judicial proceedings, and finally lost the battle for her life. She died in the early stage of cancer, even before hearing the final verdict on her petition. She left the world, hoping that the judiciary would give her a new lease of life by making the crucial drugs accessible. A timely court verdict allowing her access to the medicine was a crucial factor in upholding her right to life. However, the court proceedings moved with their own peculiar, leisurely pace, and she succumbed not just to her deadly disease but to the tiring, testing and prolonged court proceedings, where procedural compliances often override human life. Some matters are more urgent than others This is not the only case where court proceedings have outlasted the lives of litigants. The Indian judiciary is known for its vast backlog of cases, slow pace of proceedings and often differential treatment of litigants, due to which court cases often pass from litigants to their successors or legal representatives. The present case brings attention to the cases where the Indian judiciary has shown exceptional and unprecedented vigilance in hearing cases for protecting the ‘rights’ of even a convicted terrorist. On July 30, 2015, the Supreme Court of India, in an unprecedented and exceptional gesture, gave a midnight hearing to the plea of 1993 Mumbai serial blasts convict Yakub Memon, who sought the postponement of his hanging by 14 days. A Bench of Justice Dipak Misra, Justice Prafulla C Pant and Justice Amitava Roy heard Memon’s plea at 3 a.m. on July 30, 2015, the same day he was to be executed. Notably, Memon’s mercy petition was rejected by the President of India a year before. In a similar gesture, the Supreme Court formed a 3-judge Bench and held a hearing at 9:15 pm on July 1, 2023, to grant interim bail to controversial activist Teesta Setalvad. While the Supreme Court’s unusual gestures in giving urgent hearings in the abovementioned cases demonstrated how the Indian judiciary is capable of timely disposing of matters it considers ‘urgent’, it also drew widespread criticism for giving differential treatment to certain people, including a convicted terrorist. Regarding the two cases, it was argued that these were matters of ‘life and death’ and ‘personal liberty’, which is why the urgent hearings were warranted. However, such urgency has since rarely been displayed by the Indian courts, even though they routinely deal with matters concerning the fundamental rights of people. The present case of the cancer patient was no less ‘urgent’ than the cases of Yakub Memon and Teesta Setalvad. Her life was at stake and was eventually lost amid the procedural complexities of the judicial system. However, she did not get an urgent hearing because perhaps it takes more than just a ‘life and death situation’ or a threat to personal liberties to attract the Indian courts’ rare attention.