News Analysis | Centre seeks a free hand in COVID-19 management

In a 218-page affidavit, the Centre says it wants the judiciary to keep its hands off the management of the pandemic and its ‘waves/surges’

Updated - May 11, 2021 07:38 am IST

Published - May 10, 2021 10:50 am IST - NEW DELHI:

An oxygen cylinder storage facility at sector 2 of Delhi Transport Corporation depot at Dwarka in New Delhi on Sunday.

An oxygen cylinder storage facility at sector 2 of Delhi Transport Corporation depot at Dwarka in New Delhi on Sunday.

The Centre wants the judiciary to keep its hands off the management of the COVID-19 crisis and its “waves/surges”.

The latest 218-page affidavit filed by the Centre in the Supreme Court on May 9 informs the judiciary in no uncertain terms that “though it [Centre] is duty-bound to fully assist this Honourable Court... the policy, strategy and steps taken by the Executive, based on expert medical and scientific advice, have to be appreciated in the context of the medical crisis”. It said decisions were taken after “detailed deliberations at the highest Executive level”. Hence, no “interference” is called for in judicial proceedings.

Supreme Court forms National Task Force for transparent oxygen allocation

In other words, the Centre has asked the courts — Supreme Court and the High Courts — to “leave it open” for the government to discharge its functions in “larger interests”.

However, an examination of the Supreme Court orders from April 30 to May 6 show the court has only acted on the suggestions of the Centre and in consultation with the Centre, right from re-visiting the government’s “rough-and ready” formula of “oxygen-for-bed” to the formation of a National Task Force.

‘Won’t remain mute spectator’

The attitude of the judiciary can be clearly understood from the words of Justice D.Y. Chandrachud to the Centre. He made a point to say that courts refused to remain a “mute spectator” to a national calamity, but it is “together” with the Centre to “help the Centre” ease the pain of the people.

A look at the Supreme Court orders show the Centre initially shifted the blame on the States for their lack of oxygen-lifting prowess and for making “unrealistic” demands for oxygen. All the while, the Centre had claimed that it had “no dearth of oxygen”.

In this regard, the court records in its April 30 order that “the Solicitor General has stated that there is no dearth of oxygen supply in the country as on date and steps are being taken continuously to augment the supply of oxygen.... Having said that, the Solicitor General has also admitted that there has been a shortage of supply to certain States and has attributed this shortage to various factors including the failure of State governments to lift the allocated quantity of oxygen from the supply point; transportation bottlenecks caused by inter-State movement of tankers; and technical failure of certain plants leading to reassessment of allocation on a real-time basis”.

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The hearings in the Supreme Court had also seen the Centre express its annoyance at the “judicial interference”. When the Supreme Court had termed the Karnataka High Court’s direction to the Centre on May 5 to allocate 1200 MT to the State, an exasperated Centre had reacted by offering to hand over its oxygen stock to the High Courts for distribution.

However, by May 6, the Centre had toned down to admit in court that its “oxygen-for-bed” formula needed a “re-visit” and there was an urgent requirement to form a national task force to devise an equitable way of allocation of oxygen.

In fact, the court, in its order on May 6, recounted the Centre’s submission that “the formula on the basis of which oxygen is being allocated to the States and UTs is not static but needs to be re-visited”.

On the formation of the National Task Force, the Centre had found such a move necessary “to ensure that the allocation and distribution of oxygen takes place on a rational and equitable basis”.

“It is necessary to constitute a National Task Force of experts which would determine the method of allocation and distribution of oxygen across States/UTs. Smaller expert committees or sub-groups may look into issues of auditing the manner in which supplies are to be distributed and utilised in each State/UT,” the Supreme Court had recorded the Centre’s submission. The Centre had wanted an “audit” of the distribution network.

The Supreme Court had thus merely ordered what the Centre itself wanted.

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