Covid-19 – Judicial Hyper activism!
Judicial Hyper activism – Supreme Court and High Courts – is mostly Delhi-Centric over the issue of supply of Oxygen and foreign aid medical facilities to hospitals.
The key issues to ponder over are simple. One, is the judiciary fair and just in judgments over the issue of Oxygen allocation and foreign aid medical facilities to States based on population and incidence of positive cases? Two, judicial intervention into governance!
Facts: AVAILABILITY -
· Medical Oxygen as on date - around 9200 MT per day.
· Delhi State government original demand - 976 MT per day.
· Pre Covid-19 - 7,200 tons of oxygen a day with 15% medical oxygen only.
The learned and most honorable judges of Delhi High Court supported Delhi State Government demand and issued a contempt notice to the Central Government to provide 700 MT per day of medical oxygen for the treatment of patients of the Covid-19 in Delhi.
Delhi’s population is 1.9 crores only - 19th place behind Haryana. India’s population is nearly 140 crores. UP tops with 24 crores is facing Himalayan challenge in district centers and rural areas. Closely following is Maharashtra, which faces the worst incidence.
Out of 9200 MT per day, the Central Government has complied with the Supreme Court directions to supply 700 MT per day oxygen to Delhi – over 7.6% of availability. As per the latest media news, Supreme Court has also “Quashed” the Central Government plea against Karnataka High Court Order directing allotment of 1200 MT per day as against its projection of 1800tpd to Karnataka.
The number of states seeking oxygen allocation from the Centre has increased to 22 - combined demand is 8,172 MT a day; and allocated 8,280 MT medical oxygen a day.
The new states demanding oxygen are West Bengal (550 MT), Telangana (500 MT), Bihar, Andhra Pradesh, Uttarakhand, J&K, Goa, Chandigarh, Himachal Pradesh, Dadra and Nagar Haveli Daman and Diu.
What will the Supreme Court do if the High Courts of these States also direct allotment of Ozygen proportionate to incidence and population? What about other states which are not carrying out testing on large scale and also fudging the figures of incidence of Covid-19? Ipso facto, Judiciary has turned “Nelson’s Eye” to other States' requirements eloquently reflecting its Delhi-centric obsession.
My fervent appeal to the learned and honorable Judges of the Supreme Court that their judgments are patently unfair and unjust. “Having intruded into governance” and exercised discretionary powers to allocate 1900 MT out of 9200 MT of Oxygen to two states, particularly to Delhi, which is the maximum beneficiary of foreign aid, the Supreme Court must issue fresh directions instead of obdurately sticking to earlier directions.
Furthermore, the Judiciary should have considered the availability of 496 mohalla clinics operational launched by Arvind Kejriwal since 2015 with lots of fanfare and questioned their efficacy and delivery of aid in Covid-19 times. What has also happened to the 2020 pre poll promise of 1000 mohalla clinics?
Out of the blue and without a clue to Army’s commitments, Sisodia, the Deputy Chief Minister, has demanded the Army’s assistance to set up, operationalise and run 10,000 oxygenated non-ICU beds and 1,000 ICU (beds). Is he joking? Or, is it making grounds for future political blame games? Someone must put some sense into his upper storage. Even if the Army moves and concentrates all its dedicated field ambulance hospitals of active formations, they will not be able to meet his demand.
Why did not the Delhi High Court give a rap to Arvind Kejriwal and the Delhi Government for the rank inefficient mohalla clinics to render Covid-19 care? Surely, they could have been upgraded during the last one year with Rs.500 crores splurged on visual media appearances round the clock.
Why is Delhi High Court silent over the issue of the flourishing black market of Oxygen Cylinders, Oxygen concentrators, and Ambulance hire charges? Only now, the Delhi State government has woken up and announced rates for the Ambulances. The latest seizure of 524 Oxygen concentrators from “Khan Market” and other locations by Delhi Police exposes the murky happenings under the Government's nose. Surely, the AAP government, with its extensive member’s network that came to power on the “Anti-Corruption” platform, could have exposed the culprits and jailed them? Or is it that all of them are conniving with vested interests to the looting of the patients!
Furthermore, under media cacophony, even the Central Government appears to have been compelled to allot bulk of the aid sent by foreign nations to include Oxygen plants, concentrators, cylinders, vaccines and medicines to the hospitals in the NCR region to avoid the wrath of the judiciary. How is it that both the Supreme Court and the Delhi High Court are ignorant of the Financial Express news on distribution of foreign aid and directed the Central Government to place all facts concerning equitable allotments of foreign aid to all States?
From April 27 onwards, the government has been receiving aid — from the UK, UAE, Taiwan, France, Thailand, Ireland, Belgium, Romania, Russia, Kuwait, USA, Germany, Uzbekistan and Italy, among others, officials said. The Health Ministry said, till May 4, India received as many as 1,760 oxygen cylinders, 1,764 oxygen concentrators, 450 ventilators, seven oxygen generation plants, and more than 1.35 lakh Remdesivir vials, among other things.
For example, the Financial Express News: Pulse oximeters from the U.S. have been provided to Safdarjung Hospital. Nearly 7 lakh rapid Covid detection kits, the type that is used by the White House in the US, have gone to AIIMS Jhajjar, Safdarjung, ICMR and Lady Hardinge Medical College. Besides one large oxygen plant has arrived from California. From France, oxygen generation plants have gone to Dharamshila Narayana Superspeciality Hospital, Indraprastha Apollo Hospital in Delhi, Sanjay Gandhi Memorial Hospital and Ambedkar Nagar Hospital in Delhi; and to Telangana Institute of Medical Sciences. From Thailand, out of 30 oxygen concentrators, 15 have gone to CGHS hospitals and the other 15 to Safdarjung Hospital. An Italian oxygen plant is being set up at Greater Noida’s ITBP hospital. From Germany, a total of 120 ventilators have been sent to the Ram Manohar Lohia Hospital, AIIMS and Safdarjung Hospital. As many as 150 bedside monitors, 75 lung ventilation equipment and 20 large oxygen concentrators from Russia have gone to Lady Hardinge Medical College in the national capital. Out of 2 lakh favipiravir, 25,000 to Safdarjung Hospital, 40,000 to AIIMS Jodhpur, 30,000 to AIIMS Rishikesh, 2,000 to LHMC, 10,000 to AIIMS Raebareli, 38,000 to AIIMS Delhi, 30,000 to RML Hospital and 25,000 to AIIMS Jhajjar, from Russia. Six out of seven Oxygen plants are located in Delhi.
According to German ambassador Walter J Lindner, many ventilators are being sent through the private sector. Lindner said that 20 mobile oxygen tankers are being imported by the Tatas, while FICCI and German companies are bringing in as many as 1,500 oxygen concentrators. To cater to civilians in India, a massive oxygen plant is being brought in two A-400 planes for an Indian military hospital.
According to French ambassador Emmanuel Lenain, they are setting up these oxygen plants in around 10 days. Nearly 28 tones of equipment along with 28 ventilators were brought in aircraft. For the Italian oxygen plant, about 18 professionals including doctors, technicians have already set up the machine that is capable of supplying an entire hospital, beside 20 lung respirators.
Quite apparently, the Supreme Court or the Delhi High Court exercise of judicial discretion was spurned by the high-octane slandering political blame games and media cacophony - 24x365. Accurate facts must be ascertained before decision making and issuing directions.
Finally, the Supreme Court has lauded the Brihanmumbai Municipal Corporation (BMC) model – shifting from refilling mode of Oxygen to the storage-supply mode – by setting up a liquid medical oxygen tank with a capacity of 13000 kilo-liter at whichever facility had more bed with two jumbo cylinders with 10 times more capacity enough to operate all the beds for 2-3 days and keeping regular cylinder as reserve and retaining additional quarantine facilities created during first Covid-19 instead of dismantling temporary facilities,. Thus, the BMC has created 12,000 to 13,000 beds with oxygen supply out of 28,000 beds. Now, they have plans to set up 16 on-site oxygen generation plants in 12 of its hospitals, which will produce 43 MT of oxygen. Ironic that the Maharashtra State government did not replicate the same model in other Municipal Corporation likes Nagpur and others.
Viewed in the foregoing, the Supreme Court judgment on Delhi High Court’s issue of show cause notice is certainly biased towards Delhi and intrusion into the power of the elected branches of government or appointed agencies resulting in constitutional impropriety.
It is time for the Supreme Court and High Courts to recognize that the emerging Covid-19 situation is fluid and dynamic. States with high incidence rates in the past like Delhi are reportedly plateauing. The surge in states like Karnataka reportedly crossed 50000 cases.
Accept the Judges of both the Supreme Court and States High Courts that they are not in full picture of other States facing higher cases of incidence. Based on incomplete and inaccurate data, it is certainly an unfair and unjust judgment by the highest institutions of judiciary wilting under Arvind Kejriwal political gimmickry or fraud and media blitz. The Supreme Court must allow the Central Government to obtain the details of requirements of all States based on current incidence of cases, distribution of foreign aid materials received till date and direct the Central Government to make a fair and just distribution of all items instead of biased focus on Delhi.
In retrospect, judiciary rulings or discretion, by virtue of their co-location in Delhi, got carried away by the high-decibel political agenda of Arvind Kejriwal. Judiciary dismally failed to pass strictures on Arvind Kejriwal political theatrics or antics or media blitz which is the worst fraud on the nation – Rs.500 crores of taxpayers’ money squandered.
What is needed to overcome the crises is to adopt “flexible multi dimensional strategy – replication of BMC model of commissioning in situ Oxygen plants; jumbo cylinders; redeployment of Oxygen container vehicles to other states; Concentrators; Ventilators; and medicines”. Since the judiciary has intervened into governance, the Judiciary at Central and State levels can at best issue advisories to all concerned to comply with its guidelines.
Even the case filed by the ECI in the Supreme Court against the Madras High Court oral comments is controversial. In the hearing, the ECI had complained that the High Court should not have accused another constitutional authority of “murder”; and the comments were “disparaging and derogatory”. The oral comments by the Madras High Court would impact or lower the faith of the masses in the Commission and democratic process. Surely, judiciary must also exercise abundant caution while passing adverse oral comments against an independent constitutional institution.
“Upholding the independence of the ECI is important for democracy to thrive… the case posed a delicate balancing of powers between the High Court and the ECI, which were both constitutional authorities” stated Justice Chandrachud in the judgment of the Supreme Court. But, he reprieved the Madras High Court “oral observations made during the course of the hearing did not bind the parties and did not form a part of the judgment. An exchange of views was intrinsic to the applicability of mind and the process of judging.” On the nature of the remarks made by the Madras High Court, the Supreme Court said “a degree of caution and circumspection would have allayed the problems..”
None can deny that “Judicial activism” is needed to set a fair and just course particularly in the light of “once in a lifetime” Covid-19 pandemic outbreak. However, judicial activism is appropriate when it is based on objective interpretation of accurate facts. Surely, the Supreme Court must direct the Central government to direct all foreign aid medical resources to State capitals like Patna, Bengaluru, Trivandrum, Chennai, Hyderabad, Vijayawada etc.
Judges, as human beings, are also infallible. So, they must exercise abundant caution while using their discretion. Their judgments must be based on hard and accurate facts in pursuit of fair and just delivery. By rushed intervention on a daily basis and based on inaccurate facts, judicial activism is prone to avoidable controversies. The Supreme Court may like to take suo motu notice of the surge in other states and the Financial Express news and deliver fair and just judgments and ensure equitable allocation of medical aid resources to all States proportionate to the current Covid-19 incidence rates.
Article by Brig (Retd) G B Reddy Sir
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