Updated: Aug 26, 2021
The second wave of Covid-19 infections in India came as a huge challenge to the existent health system in the country. The loss of lives, due to the lack of preparedness on the part of the Central Government, led to judicial interference at a scale that raised several questions of constitutional relevance. This blog covers the instance where the directives were issued by the Supreme Court regarding the deficit in the oxygen supply to Delhi. An analysis of the policy on the supply of oxygen shows that in issuing the directives on 30/04/2021, the apex court may have crossed all the permissible limits imposed upon it by the Constitution. The blog further goes on to show how the apex court exercised the functions of the empowered groups constituted to project the demand for oxygen and manage its supply. Concluding with a mention of the role played by the judiciary in the fight against Covid-19, the need for deference to the doctrine of separation of powers is stressed upon.
The second wave of infections-Separation of Powers-Judicial Intervention-Judicial Overreach-Policy for the supply of oxygen-fundamental rights.
The second wave of Covid-19 infections in India brought forth a tremendous challenge to the existing medical setup in the country. The dire situation was only worsened by the lack of foresight on the part of the Central Government and its failure to prepare for it. As the medical system languished under the pressure of an increasing caseload of infections, the country suffered from shortages of essential drugs, vaccine doses and most importantly- life-saving oxygen. What this prompted was the judicial intervention of a nature that raised several questions of constitutional relevance and forever altered the perception of the relationship between the higher judiciary and the executive. In a Suo moto writ petition titled ‘In Re: Distribution of Essential Supplies and Services During a Pandemic’, the apex court did not shy away from heavily criticising the Central Government on its less than satisfactory response to the disaster at hand. Taking the matter into their own hands, the Courts issued stern directions, even threatening contempt proceedings in case there was a failure to comply.
The Question of Judicial Overreach:
In an order dated 30/04/2021, the Supreme Court, among other directions, directed the Union of India to ensure that the deficit of oxygen supply to Delhi was rectified by 03/05/2021. These directions meant that 700 MT of oxygen had to now be supplied to Delhi. The conflict however began with a Delhi High Court order dated 01/05/2021, directing the Central Government to ensure that Delhi receives its allocated supply of 490 MT of oxygen. The non-compliance to this order and the Supreme Court order dated 30/04/2021, led the High Court to issue a notice on 04/05/2021, to the Central Government to show cause as to why contempt proceedings should not be initiated against it. The Government then appealed to the Supreme Court on 05/05/2021, which stayed the contempt proceedings but stated that its direction dated 30/04/2021 with regard to allocation of oxygen should be abided to. The Government which solemnly assured to supply the directed quantity, then retracted from its assurance on 07/05/2021. The coverage of the exchange between the Centre and the Apex Court bench showed that the Court threatened coercive measures if its order was not abided to. This happened the same day, the Supreme Court refused to interfere with the Karnataka High Court order directing an allocation of 1200 MT of oxygen to the State.
The availability of oxygen plays an important role in ensuring the survival of a large number of patients afflicted by covid. The importance of this life-saving resource can hardly be understated, as it has caused States to scramble for obtaining supplies of it from the Centre amid rising cases. It is due to a number of avoidable deaths on account of the shortage of oxygen, that the Courts have stepped into the management of the pandemic situation, which ordinarily seems to be the executive’s domain. In the landmark judgement of Vishaka v. the State of Rajasthan, the apex court held that Article 32 and Article 226 enable the Supreme Court and High Courts to intervene in cases of executive/legislative inaction, to safeguard fundamental rights. However, it is unclear whether there was any room for judicial involvement to such a large extent in the current scenario. Moreover, the magnitude of judicial interference that is reflected in the directions issued by the apex court appears to do injustice to the doctrine of separation of powers.
The Doctrine of Separation of Power:
The Doctrine of separation of powers encompasses the notion that there lie fundamental differences in the functions of the different bodies of the government, that is the legislature, the executive and the judiciary. However, its form should not be allowed to discredit what lies in its substance. What the doctrine of separation of powers is opposed to, is the concentration of power in the hands of a person or a group. It is thus helpful to understand it as a system of “checks and balances” wherein an organ acts as to check the functioning of another, preventing the concentration of power in its hands. However, one might ask, how does this doctrine come into play in the current situation regarding oxygen? To answer this question, it is first important to provide a brief outline of the law in this regard.
Issues regarding the management of the pandemic, fall greatly within the scope of the Disaster Management Act, 2005(“the Act”). Section 2(d) of the Act gives a broad definition of ‘disaster’, allowing it to include the pandemic within its purview. The National Disaster Management Authority to be constituted under this Act is responsible for “laying down the policies, plans and guidelines for disaster management in order to ensure a timely and effective response to the disaster”. The Act further calls for the constitution of the National Executive Committee, which shall aid the Authority in the performance of its functions.
In an order dated 29/03/2020, the National Executive Committee called for the constitution of 11 Empowered Groups, under the powers conferred to it by Sections 10(2)(h) and 10(2)(i) of the Act. These Groups were empowered to identify issues with regard to the pandemic and provide effective solutions to tackle them. The intent behind the order was clearly to decentralise the decision-making power to ensure a more efficient response. Being armed with the power to formulate plans, strategies, and policies, and with the power to ensure their effective implementation, it is safe to say that these bodies were entrusted with Executive functions. The policies formulated by them would have the same character as those formulated by the Executive.
Under this framework, Empowered Group-I was constituted for estimating the required oxygen supply and Empowered Group-II was constituted to ensure the availability of essential medical equipment and oxygen management. Together, these Groups worked to calculate the amount of oxygen required by each State and ensured that such an amount was delivered to the respective states on time. Hence, decisions taken by them were policy decisions that involved taking into consideration many technical aspects. In such a scenario there was little scope for judicial intervention. It is an established principle of law, that Courts cannot interfere with policy decisions of the executive unless they can be faulted on the grounds of being mala-fide, unreasonableness, arbitrariness or unfairness. Thus, if the Courts attempted to interfere in the decisions of these groups, in any other way, their action would not only be in contravention of existing law but would also do injustice to the sacred doctrine of separation of powers.
Where was the Line Crossed?
The provisions for judicial review in the Constitution mandate judicial intervention wherever any legislation or executive action is in contravention of the fundamental rights guaranteed by Part III of the Constitution. However, creative judicial interpretation has carved out a ground for such intervention even in situations where fundamental rights are violated on account of government inaction. For instance, the Apex court in important matters ranging from women’s safety at workplaces to the issue of custodial deaths has issued guidelines and orders, that hold the same status as policy, where there was a vacuum on account of executive and legislative inaction. But what is inaction? Lokur, J. in Swaraj Abhiyan v. Union of India, answers this accurately by quoting Lokmanya Tilak “The problem is not lack of resources or capability, but the lack of will.” It cannot be said that there was a lack of will on the part of the Centre, as far as the allocation of oxygen was concerned. The constitution of Empowered Groups, which decided upon the questions with regard to the quantity of oxygen required and managed the supply of oxygen, signals that there was no inaction in the first place. Moreover, decisions taken by these groups constituted policy which filled up any vacuum that would have allowed for judicial intervention.
The direction to the Central Government to ensure that “the deficit in the supply of oxygen to the GNCTD is rectified…”, had two important questions underlying it:
(i) Is there a deficit in supply?
(ii) Do 700 MT of oxygen need to be supplied to Delhi on a daily basis to rectify the deficit?
These were the questions that the Court ended up deciding upon when it passed this direction. However, it is important to note here that these questions were not questions of law but were questions of policy that were to be decided upon by the respective empowered groups. For instance, the first question regarding the deficit of oxygen was to be decided upon by Empowered Group-I which dealt with the projection of demand for oxygen by each State. The second question was supposed to be decided upon by Empowered Group- II which managed the supply of essential resources.
The Supreme Court has laid down the scope of judicial review in policy matters, in various decisions. One such decision is Small Scale Manufacturers Association v. Union of India & Ors., where it was held that it is the legality of the policy that is subject to judicial review and not its wisdom or soundness. Being passed by a three-judge bench, this decision was binding upon the two-judge that passed the directions in relation to oxygen. The very rationale behind passing these directions was that the formula which was used for making calculations for the requirement for oxygen in different States was incorrect. In adopting such a rationale, the Court delved into deciding upon the wisdom of policy decisions, taken by the respective authorities.
It is important to understand the weight of such a direction. Authorities that were earlier accountable to the respective Empowered Groups, now became accountable to the Supreme Court, and non-compliance was now threatened with contempt proceedings. In Peerless General Finance and Investment Co. Ltd. & Anr v. RBI, it has been held that the function of the Court is only to ensure that lawful authority is not abused, and not appropriate to itself the task entrusted to that authority. However, from the issued directions it is clear that this line was crossed, and the Court exercised a power which, with all due respect, it never had in the first place.
Although the apex court intervened in good faith, it could not have taken into account the whole picture as it was never equipped to do so. Projecting the demand for oxygen required considering several technical aspects, the analysis of which could only be done by experts. In fact, the National Task Force which was constituted by the Supreme Court itself, later found that Delhi had demanded four times the amount of oxygen it actually required! This had far-reaching consequences on the supply of oxygen to 12 other states, affecting them adversely.
The power of judicial review, although being extraordinary in nature, is subject to constitutional limits. In its Small-Scale Industries and Peerless General Finance judgements mentioned earlier, the Court acknowledged the existence of these limits which mandated it to restrain itself from interfering in certain matters of policy. Further, the doctrine of separation of powers has been held to be a part of the basic structure of the Constitution, which is why there is more reason for each organ of the State to function within its respective sphere without excessively interfering in the functioning of the other.
While its response to the plight of migrant workers in 2020 was less than satisfactory, it must be noted that from pushing the Central Government to formulate a National Plan to calling it out on its faulty vaccination policy, the Supreme Court has played an integral role in the fight against Covid-19. However, the power of judicial review cannot be used to direct an executive action that is based upon policy considerations. The purpose of democracy is not served by adopting methods that are expedient in providing results. In fact, in difficult times it is important to take the Constitutional approach, which is always in furtherance of safeguarding fundamental rights. It might be expedient to exercise powers on forbidden grounds, but this may often lead to congestion and confusion defeating the purpose for which such power was used in the first place.
 Philip B. Kurland, The Rise and Fall of the "Doctrine" of Separation of Powers, 85 MLR 592, 593 (1986).  Shashank Krishna, Separation of Powers in the Indian Constitution & Why the Supreme Court was Right in Intervening in the "Jharkhand" Imbroglio, 18 SBR 13, 17 (2006).  Shashank Krishna, Separation of Powers in the Indian Constitution & Why the Supreme Court was Right in Intervening in the "Jharkhand" Imbroglio, 18 SBR 13, 19 (2006).  Section 6(1) Disaster Management Act, 2005  Section 8(1) DMA Disaster Management Act, 2005  In Re: Distribution of Essential Supplies and Services During Pandemic, 2021 SCC OnLine 355  BALCO EMPLOYEES’ UNION (REGD) v. UNION OF INDIA, 2002 (2) SCC 333; SUGAR WORKS LTD. v. DELHI ADMINISTRATION, 2001 (3) SCC 635.  Vishaka v. the State of Rajasthan, (1997) 6 SCC 241; DK Basu v. State of West Bengal, (1997) 1 SCC 416  Kesavananda Bharati v. the State of Kerala, (1973) 4 SCC 225.
[*] Ritvik Mishra is a third-year undergraduate student from Jindal Global law school. He is currently pursuing B.B.A. LL.B. at Jindal Global Law School.
Preferred Citation – Ritvik Mishra, “Adjudicating the Policy on Oxygen Supply: Judicial Detour into Executive Territory", Syin & Sern Law Review, Published on 16th August 2021.