Events & Issues
New
Delhi, 13 May 2021
NTF For Covid-19
SEPARATION OF POWERS
BLURRED
By Dr S.Saraswathi
(Former Director,
ICSSR, New Delhi)
The Supreme Court hasset up a 12-member National
Task Force (NTF) to facilitate public health response to the Covid-19 pandemic
that is creating havoc in the second wave. It seems to be a sequel to the court’s dissatisfaction
expressed recently in some cases regardingmedical oxygenallocation to States by the Central government.
The NTF is vested with the task of
streamlining andensuring“effective and transparent” allocation of liquid medical oxygen on a
“scientific, rational, and equitable basis” to the States and Union Territories. It soundslike an
indirect indictmentofthe way the government ismanaging pandemic situation.
Constituting a permanent team of experts may
be a good idea in the interest of somehow conquering the virus war, but the
step taken by the SC has many implications said and unsaid. Government is already consulting experts from
different fields before taking every step.
The NTF is not comingas a suggestion among
many in our desperate efforts to eradicate the
disease, but as a necessity notedby the SCto rectify the deficiencies in
the Centre’s oxygen allocation
methodology to treat Covid-19 cases. The apex court pointed to the growing need
for an “effective and transparent mechanism”for this function -- a positionnot unacceptable.
But, NTF hascome after certain decisions of High Courts and Supreme Court,
directing the Centre to release a certain quantum of oxygen to particular
States, which implies that the SC is trying course correction in the domain of executive
decisions and actions.
Government decisionsare takenon the basis of
available data and in consultation with subject experts and administrators, and
in the interest of the entire nation, and not as a legal dispute on the
strength of arguments by advocates.
The Supreme Court, on 7 May, has upheld an
interim order of the Karnataka High Court
directing the Union Government to supply 1,200 metric tonnes ofoxygen every day to the State
as a “careful, calibrated, and judicious exercise”. The judge said that the
government is “under an obligation to providetheoxygen”.
The same bench underlined the obligation of
the Union Government to comply with the order to supply 700 metric tonnes of oxygen to Delhi
every day, practically giving a warning to the Centre against forcing the court
into taking “coercive action” against it by reneging its promise.The bench held
that the Centre had no option but to maintain this daily supply.
Thecourthad also reminded the government that
it owed a “special responsibility”to Delhi,which represents the “microcosm of
citizens of the entire nation”.It questionedprocurement, distribution, and pricing policy of vaccines
by the Centre.
These are instances of judicial entry into
the sphere of the Executive that is different from judicial interpretation of
constitutionality oflaws passed by legislatures and orders issued by the
executive.
Pandemic periodis certainly an extraordinary
situation and gives rise to tough conflicts, mutual recriminations, raceformaximum
advantage, and fightfor attention and resource allocations. Constitutional bodies and several public and
private institutions are caught in medical and non-medical controversies
leading to questionsof rights, powers,authority,jurisdiction,legitimacy and so
on.
Oxygen allocationto States, tillnow made by
the Centre on the basis of number of beds and intensive care units, needs
“complete revamp” in the words of the SC that will take into account increasing
home quarantine and ambulance usage. A possiblethird wave is expected to intensify demand for oxygen and a scramble
for supply. They necessitate changes in oxygen policyand allocationmethodology
from time to time which are not unknown to the government.
The National TaskForce is formed at this
juncture by the SC. Four amongthe 12 membersare
from Delhi hospitals.Cabinet
Secretary, Government of India, is
designated as the convener as well as a member of the Task Force.
Thus, theresponsibility of supply of oxygen is
shifting from the government to the concern of the judiciary. Principles of
legality, equality, and justice is likely todetermine allocation of oxygen.Meeting
competing demands and rectifying shortage and wastage will be in the hands of
the Task Force, which is obviously accountable to its creator, the Supreme
Court.In recent days, hoarding,
black-marketing,excessive use and pilferage of oxygen cylinders are reported –
a development that will add to the problems of the NTF. Multiple authorities
with overlapping functions will have to coordinate.
Terms of reference to the Task Force comprise
12 points besides supply of oxygen to States and UTs. These include formulating and
periodically reviewing and revising methodology for allocation ofoxygen on “scientific, rational,
and equitable” basis;augmenting supplies; auditing by sub-groups with States
and UTs; reviewing measures to ensure availability of essential drugs and
medicines; planning and adopting measures to meet emergencies; suggesting
measures to augment availability of trained doctors and othermedical personnel;
promoting research; facilitating sharing of practices between nations on
pandemic management;andlooking into other issueshaving a bearing on pandemic control.
In short, this body will deal with every
aspect of fighting the pandemic -- medical and associated non-medical problems.
The sub-groups to be setup in States/UTs will
do the audit to determine whether the supplies allocated by the Centre reach
their destinations and distribution to hospitals and end users are efficient and transparent. They will also identifybottlenecks
obstructing theprocess of utilisation of
oxygen.
A separate Task Force to control Covid-19 is
an excellent idea and even if it is an autonomous body, it must function under
Union Health Ministry. Why it is set up by the Judiciary is not known. The
newgovernmentin Tamil Nadu has aseparate ministry for Covid-19 control. Epidemic control is a public health
emergency requiring national policy and action and not a legal problem.
It is not clear whether the Central
government is obliged to accept all recommendations of the Task Force. Noris it
clear whether the Task Force will make decisions by consensus or majority
support.
The Task Force has many more functions
related to Covid-19 control apart from distributing oxygen. Will it take over the entire
responsibility of conquering the virus or at least acquiring and distributing oxygen? Will it negotiate
with foreign countries and liaison between Indian States for
oxygen supply? How willit manage the financial part? Will it give orders
to the governmentlike the Supreme Court? Will it monitor the usage of oxygen
and other materials supplied to the States/UTs?Will it guarantee oxygen supply
as and when needed by patients?
Oxygen supply to a State is not an isolated
question merely of fulfilling a demand. It requires enormous data on Covid spread and control
measures in every State/UT including their abilities, difficulties, and drawbacks.
It involves a good deal of administrative work and management of manpower and resources possible for the
government but not for a Task Force of medical
experts.
Separation of Powers is a cardinal principle
of democracy, where the spheres of the Legislature, Executive, and Judiciary are
clearly earmarked. One cannot superimpose on another. ---INFA
(Copyright, India
News & Feature Alliance)
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