Separation of powers blurred

NTF For Covid-19
By DrS.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