Easy to criticise govt, court unless you are in hot seat: SC on probe into Oxygen supply

It is very easy to criticise the government or courts unless you are in the hot seat but even some of the most advanced nations of the world faced difficulties in containing the COVID-19 pandemic, the Supreme Court on Monday told a petitioner seeking probe into shortage of Oxygen supply during the second wave.

At this time when the country is facing a difficult situation, people must be wary of doing anything which may have a demoralising effect on the authorities who are dealing with the crisis, the apex court said.

The remarks were made by the court while hearing a PIL seeking setting up of a Commission of Inquiry, headed by a retired judge of the apex court or the high court, or a CBI probe into the alleged non-supply and non-availability of medical oxygen for COVID-19 patients during the second wave of the pandemic from March to May this year. A bench of Justices D Y Chandrachud and B V Nagarathna while dismissing the PIL filed by one Naresh Kumar said, “Allegations with regard to criminal wrongdoing cannot be assumed nor can be levelled lightly without adequate material. In the circumstances for the reasons indicated, we are not inclined to entertain the PIL. Petition is accordingly dismissed”.

Advocate Medhanshu Tripathi, appearing for Kumar, said that lakhs of people have died during the second wave due to non-availability of Oxygen. “Even in most developed nations in the world, they were not able to contain the pandemic.

You see, it is very easy to criticise the government or for that matter courts unless you are in the hot seat,” the bench said. “Now that the second wave is over, should the court do a legal post-mortem of what went wrong or instead we do something positive, so that such mistakes do not happen again or we are well prepared for the future exigencies,” it added.

The bench said that earlier this year, this court while exercising its suo motu jurisdiction had constituted a National Task Force consisting of eminent doctors drawn from various institutions of the country. “The remit of the National Task Force (NTF) is formulated and one of the issues engaging it is with regard to ensuring the availability of supply of Oxygen to meet the requirement of patients during the course of pandemic.

”In view of the fact that a body of experts has been constituted to specifically look into matters pertaining to the availability and distribution of Oxygen, it is neither appropriate nor proper to conduct a parallel proceedings by constituting a Commission of Inquiry as sought”, the bench said. It added that as regards to adopting recourse to jurisdiction under Article 32 for an investigation by an investigating agency or the CBI, ought to be preceded by invocation of the remedy available under CrPC. “Without doing so, the petitioner has sought to invoke the jurisdiction under Article 32 directly,” it said, adding that like in COVID vaccination this court has done something positive, the petitioner shall endeavour to do something positive and give his suggestions to the National Task Force or the government. The bench told Tripathi, “At this time, the country is dealing with a difficult situation, people must be wary of doing anything which may have a demoralising effect on people dealing with the crisis”.

Justice Chandrachud said that he does not think what a retired judge headed commission of inquiry can do which the National Task Force cannot do.

“They are all eminent doctors and well aware of the situation”, the bench said. Tripathi said that it is not any other plea but a pure PIL as the petitioner was himself a victim to the non-availability of Oxygen during the second wave and similar was the fate of numerous patients. “We have seen your petition, we know what happened. We should leave it to the government to augment the health infrastructure. We have inherited a 100 years old health infrastructure, which was not sufficient. Now that the National Health Policy is in place, which would take care of many issues”, the bench said.
Tripathi said that an expert panel has warned the government about the second wave and the shortcomings in advance, but it has failed to act and did not increase the doctors strength or other infrastructure.

The bench said that it’s also very easy to blame the people, who are in power or the doctors of government hospitals, who are often assaulted when a patient dies. “Often it is the case that when a patient dies in hospital, then it is due to some kind of negligence on part of hospital staff or the doctors and they are assaulted. But actually it is not the case, as sometimes a patient may die despite best efforts put by the doctors,” the bench said.

Kumar in his plea has alleged that due to non-availability of medical oxygen during the second wave of the pandemic several COVID patients have lost their lives in various parts of the country. Kumar, a Delhi resident in his plea filed through advocate Rajeev Kumar Dubey said, ”This court through its various judgements has logically extended the interpretation of the right to life to include the right to health. Therefore, it is the fundamental duty of the State to care for the health of the public at large”.

In May, the apex court, in a suo motu matter on COVID preparedness had constituted a 12-member NTF of top medical experts to formulate a methodology for allocation of oxygen to states and union territories for saving lives of COVID-19 patients and to facilitate a public health response to the pandemic.