Supreme Court: With the number of COVID-19 cases skyrocketing and nation facing severe shortage of oxygen, leading to several deaths, the bench of Dr. DY Chandrachud and MR Shah, JJ has set up a 12-member National Task Force to formulate a methodology for the scientific allocation of oxygen to the States and UTs.
(i) The methodology adopted by the Union Government for computing the requirement of oxygen of the States and Union Territories1 ; (ii) The need to manage available resources of oxygen to optimise their availability for the National Capital Territory of Delhi2 , which is dependent on: · An efficient supply chain; · Proper distribution of oxygen from the supply points to hospitals; and · Building buffer stocks of oxygen; and (iii) Actual availability of oxygen.
There is a need to ensure that the allotments of medical oxygen to the States and UTs is made on a scientific, rational and equitable basis. At the same time, it must allow for flexibility to meet unforeseen demands due to emergencies which may arise within the allocated territories.
An expert body consisting of renowned national experts with diverse experience in health institutions will provide a public heath response to the pandemic on the basis of a scientific approach.
The task force will,
- formulate a methodology for the scientific allocation of oxygen to the States and UTs. The Union Government has made its suggestions on the possible names for inclusion in the composition of the Task Force, while leaving its final composition to the Court.
- facilitate a public health response to the pandemic based on scientific and specialised domain knowledge.
- enable the decision makers to have inputs which go beyond finding ad-hoc solutions to the present problems.
- Provide the Union Government with inputs and strategies for meeting the challenges of the pandemic on a transparent and professional basis, in the present and in future.
“The likely future course of the pandemic must be taken into contemplation at the present time. This will ensure that projected future requirements can be scientifically mapped in the present and may be modulated in the light of experiences gained.”
The National Task Force will consist of the following members
(i) Dr Bhabatosh Biswas, Former Vice Chancellor, West Bengal University of Health Sciences, Kolkata;
(ii) Dr Devender Singh Rana, Chairperson, Board of Management, Sir Ganga Ram Hospital, Delhi;
(iii) Dr Devi Prasad Shetty, Chairperson and Executive Director, Narayana Healthcare, Bengaluru;
(iv) Dr Gagandeep Kang, Professor, Christian Medical College, Vellore, Tamil Nadu;
(v) Dr JV Peter, Director, Christian Medical College, Vellore, Tamil Nadu;
(vi) Dr Naresh Trehan, Chairperson and Managing Director, Medanta Hospital and Heart Institute, Gurugram;
(vii) Dr Rahul Pandit, Director, Critical Care Medicine and ICU, Fortis Hospital, Mulund (Mumbai, Maharashtra) and Kalyan (Maharashtra);
(viii) Dr Saumitra Rawat, Chairman & Head, Department of Surgical Gastroenterology and Liver Transplant, Sir Ganga Ram Hospital, Delhi;
(ix) Dr Shiv Kumar Sarin, Senior Professor and Head of Department of Hepatology, Director, Institute of Liver and Biliary Science (ILBS), Delhi;
(x) Dr Zarir F Udwadia, Consultant Chest Physician, Hinduja Hospital, Breach Candy Hospital and Parsee General Hospital, Mumbai;
(xi) Secretary, Ministry of Health and Family Welfare, Government of India (ex officio member); and
(xii) The Convenor of the National Task Force, who shall also be a member, will be the Cabinet Secretary to the Union Government.
The Cabinet Secretary may nominate an officer not below the rank of Additional Secretary to depute for him, when necessary.
The Task Force is at liberty to draw upon the human resources of the Union Government for consultation and information, including the following:
(i) A member of Niti Aayog to be nominated by the Vice-Chairperson;
(ii) Secretary, Ministry of Human Affairs;
(iii) Secretary, Department for Promotion of Industry and Internal Trade;
(iv) Secretary, Ministry of Road Transport and Highways;
(v) Director, All India Institute of Medical Sciences, New Delhi;
(vi) Director General, Indian Council of Medical Research, New Delhi;
(vii) Director General of Health Services; and
(viii) Director General, National Informatics Centre; and
(ix) Head, Centre for Development of Advanced Computing (C-DAC).
The concerned Secretaries shall be at liberty to nominate officers of the rank of Additional/Joint Secretary to depute for them.
The terms of reference of the National Task Force shall be to:
(i) Assess and make recommendations for the entire country based on the need for, availability and distribution of medical oxygen;
(ii) Formulate and devise the methodology for the allocation of medical oxygen to the States and UTs on a scientific, rational and equitable basis;
(iii) Make recommendations on augmenting the available supplies of oxygen based on present and projected demands likely during the pandemic;
(iv) Make recommendations for the periodical review and revision of allocations based on the stage and impact of the pandemic;
(v) Facilitate audits by sub-groups within each State and UT inter alia for determining:
(a) whether the supplies allocated by the Union Government reach the concerned State/UT;
(b) the efficacy of the distribution networks in distributing supplies meant for hospitals, health care institutions and others;
(c) whether the available stocks are being distributed on the basis of an effective, transparent and professional mechanism; and
(d) accountability in regard to the utilisation of the supplies of oxygen allocated to each State/UT;
“The purpose of conducting audits is to ensure accountability in respect of the supplies of oxygen provided to every State/UT. The purpose is to ensure that the supplies which have been allocated are reaching their destination; that they are being made available through the distribution network to the hospitals or, as the case may be, the end users efficiently and on a transparent basis; and to identify bottlenecks or issues in regard to the utilization of oxygen. The purpose of the audit is not to scrutinise the decisions made in good faith by doctors while treating their patients.”
(vi) Review and suggest measures necessary for ensuring the availability of essential drugs and medicines;
(vii) Plan and adopt remedial measures for ensuring preparedness to meet present and future emergencies which may arise during the pandemic;
(viii) Facilitate the use of technology to ensure that the available manpower is optimised for implementing innovative solutions particularly in order to provide an outreach of expert medical care to rural areas;
(ix) Suggest measures to augment the availability of trained doctors, nurses and para-medical staff including by the creation of suitable incentives;
(x) Promote evidence based research to enhance effective responses to the pandemic;
(xi) Facilitate the sharing of best practices across the nation to promote knowledge about the management of the pandemic and treatment of cases; and
(xii) Generally, to make recommendations in regard to other issues of pressing national concern to find effective responses to the pandemic.
The Task Force is at liberty to formulate its modalities and procedure for working.
The Task Force may constitute one or more sub-groups on specialised areas or regions for assisting it, before finalising its recommendations.
The Task Force may consider it appropriate to co-opt or seek the assistance of other experts within or outside government to facilitate its working, including in the following areas:
(i) Infectious disease modelling;
(ii) Critical care;
(iii) Clinical virology/Immunology; and
(iv) Epidemiology/Public health.
The Union Government and State Governments, Ministries, agencies and departments shall provide complete and real time data for facilitating the work of the Task Force as and when necessary. All private hospitals and other health care institutions shall co-operate with the Task Force.
The Task Force will commence work immediately, taking up the pressing issue of determining the modalities for oxygen expeditiously within a 24 week. The tenure of the Task Force shall be six months initially. The Union Government shall provide all necessary assistance to the Task Force and nominate two Nodal Officers to facilitate its work. The Nodal Officers shall also arrange for logistics, including communication with the members and arranging the virtual meetings, of the Task Force.
Till the task force submits it’s recommendations, the Union Government shall continue with the present practice of making allocations of oxygen (as modified by the orders of this Court or the orders of the High Courts as the case may be).
The Union Government shall on receipt of the recommendations of the Task Force take an appropriate decision in regard to the allocation of oxygen and on all other recommendations.
[Union of India v. Rakesh Malhotra, 2021 SCC OnLine SC 375, order dated 06.05.2021]
For Petitioner: Tushar Mehta, SG and Aishwarya Bhati, ASG
For Respondent: Rahul Mehra, Senior Advocate and Rakesh Malhotra, in person
Amicus Curiae: Senior Advocates Jaideep Gupta and. Meenakshi Arora