Edit & Opinion

NTF For Covid-19 : Separation Of Powers Blurred

The Supreme Court has set 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 regarding medical   oxygen allocation to States by the Central government.

 

The NTF is vested with the task of streamlining and ensuring “effective and transparent”   allocation of liquid medical oxygen on a “scientific, rational, and equitable basis” to the States  and Union Territories. It sounds like an indirect indictment of the way the government is managing 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 coming as a suggestion among many in our desperate efforts to eradicate the  disease, but as a necessity noted by the SC to 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 position not unacceptable. But, NTF has come 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 decisions are taken on 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 of oxygen every day to the State as a “careful, calibrated, and judicious exercise”. The judge said that the government is “under an obligation to provide the oxygen”.

 

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.

 

The court had also reminded the government that it owed a “special responsibility” to Delhi, which represents the “microcosm of citizens of the entire nation”.  It questioned procurement,  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 of laws passed by legislatures and orders issued by the executive.

 

Pandemic period is certainly an extraordinary situation and gives rise to tough conflicts, mutual recriminations, race for maximum advantage, and fight for attention and resource allocations.   Constitutional bodies and several public and private institutions are caught in medical and non-medical controversies leading to questions of rights, powers, authority, jurisdiction, legitimacy and so on.

 

Oxygen allocation to States, till now 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 possible third wave is expected to   intensify demand for oxygen and a scramble for supply. They necessitate changes in oxygen   policy and allocation methodology from time to time which are not unknown to the government.

 

The National Task Force is formed at this juncture by the SC. Four among the 12 members are   from Delhi hospitals. Cabinet  Secretary, Government of  India, is designated as the convener as well as a member of the Task Force.

 

Thus, the responsibility of supply of oxygen is shifting from the government to the concern of the judiciary. Principles of legality, equality, and justice is likely to determine 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 of oxygen 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 other medical personnel; promoting research;  facilitating sharing of practices between nations on pandemic management; and looking into  other issues having 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 set up 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 identify bottlenecks obstructing the process 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 new government in Tamil Nadu has a separate 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. Nor is 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 will  it manage the financial part? Will it give orders to the government like 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.

 

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About the author

Dr S Saraswathi

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