Right To Oxygen And Pandemic Management: Lessons For The Future

Amol Verma


Introduction

Article 21 of the Constitution of India i.e., ‘Right to Life’ and Personal Liberty is regarded as the heart of the Fundamental Rights. The exercise and enjoyment of all other fundamental rights are possible only when the life of a person is safeguarded. In Constitutions around the world, the Right to Life is put on the highest pedestal and considered a basic, and inalienable right. The very purpose of the existence of a State is to protect the life, liberty, and property of its citizens. Right to Life is, without an iota of doubt, the biggest constitutional value of any democratic society. The most essential element to sustain human life is oxygen. The unprecedented COVID-19 crisis has exposed India’s ill-equipped health sector to its core as the patients suffering from the deadly virus have to wait in queues outside already overburdened hospitals to procure something as basic as oxygen.[i] This article analyses the Right to Life and its facets, discusses how the Right to Oxygen falls within the broad contours of Article 21 and suggests a way forward to ensure sanctity and protection of this basic fundamental right. 

Judicial Interpretation of Right to Life and its ever-expanding Scope

The Apex Court of our country has played a crucial role in expanding the scope of the Right to life. After the judgment in AK Gopalan v State of Madras[ii] which gave a narrow interpretation to personal liberty to imply only the freedom of physical body, the Supreme Court through its catena of dynamic judgments has broadened the horizons of Article 21 by interpreting various facets under it.[iii]

Going a step ahead from its judgment in the Gopalan case, the Supreme Court in Kharak Singh v. State of Uttar Pradesh observed that the term ‘life’ as appearing under Article 21 does not mean mere animal existence, rather it means to lead a life with ‘human dignity’.[iv]

Furthermore, in Sunil Batra v. Delhi Administration, the Supreme Court while remarking that the arrest of a person does not deprive him of his fundamental right under Article 21, held that the Right to life is inclusive of the right to lead a healthy life to enjoy all the faculties of the human body.[v] This judgment is one pivotal ruling in the development of the Indian Criminal Jurisprudence as it recognized for the very first time the right of the prisoners to be treated with dignity.

Through the years, the Apex Court has confirmed the position of the right to health within the broad contours of Article 21. In Paschim Banga Khet Mazdoor Samity v. State of West Bengal, the Supreme Court remarked that the right to health and emergency medical aid is an integral part of the fundamental Right to Life.[vi] Similarly, in MK Sharma v. Bharat Electronics Ltd, the Court pointed out that the Right to Life is grossly violated in case if there is X-ray radiation which causes a baneful effect on the human body.[vii]

Most notably, taking note of the industrial disasters such as the Bhopal gas tragedy, oleum gas leak, among others, the Supreme Court in M.C. Mehta v. UOI, laid down that the right to an unpolluted environment and air falls within the ambit of the Right to life.[viii]

The Indian judiciary has placed the Right to Life at the highest pedestal among the fundamental rights in so far as it went further to interpret the right to sound sleep as one of the facets of Right to Life in Re-Ramalila Maidan Incident v Home Secretary & Ors.[ix]

Recent orders of the High Courts on Oxygen Supply and Display of Judicial Activism

While the country battles the worst phase of the COVID-19 crisis from the time when the first case was reported in the nation in March last year, the High Courts have taken the route of Judicial Activism and their recent orders illustrate their capability to restore the faith of the public in the judicial system.[x]

The Madhya Pradesh High Court in Sushil Kumar Patel v. UOI observed that in fulfillment of its duties under Article 21, the State must take all necessary measures to secure to all its citizens the right to access medical facilities.[xi] Therefore, the Government has a constitutional duty to allocate a proper quota of oxygen and ensure that there is an unobstructed supply of oxygen to the states as per their needs.

Furthermore, the Delhi High Court in Balaji Medical & Research Centre v. UOI, ordered the Central Government to divert oxygen from petrochemical industries to Delhi for medical use.[xii] Moreover, the court remarked that the situation is one of a national emergency and lives of people are more important than commercial interests.

Similarly, the Nagpur bench of the Bombay High Court, in an urgent hearing at late night, took up a matter concerning the reduced supply of oxygen to Maharashtra, according to the directions issued by the Central Government to cut down oxygen supply to the state.[xiii] The court remarked that in a crisis like this, the Union should have had increased the supply of oxygen however the Centre has acted in just the opposite manner. Consequently, the court directed to restore the oxygen supply of earlier quantity.

Therefore, the High Courts of the country have taken immediate cognizance of the grave situation and directed the Governments at the centre and state to arrange for adequate medical infrastructure thereby attempting to secure the citizens’ right to health and life.

Over-centralization of Powers & Need for an Integrated Health Policy

Despite the judiciary’s vociferous take, the crisis could not be averted. The major problem that the country witnessed was the over-centralization of powers[xiv] with the central government without any national plan for the distribution of oxygen between the states.[xv] A lackadaisical approach on the planning front turned out to be catastrophic as every time a state fell short of oxygen it lacked the power to procure it, and in the event of failure of Union to provide timely oxygen supply, the states had to rush to the courts.

India’s existing healthcare policy is fraught with deficiencies and it lacks a well-drafted Integrated National Policy to tackle COVID-19. Section 2(e) of the Disaster Management Act, 2005 (hereinafter referred to as the ‘DM Act’) specifically uses the term ‘integrated’ while talking about the process of disaster management to emphasize the importance of cooperation between the centre and states.[xvi] The last national plan for disaster management under the DM Act was formulated in 2019. Whereas, Section 11(4) of the Act visualizes a national plan to be a dynamic document that must be updated annually.[xvii] Section 35(2)(a) of the DM Act calls for coordinated action between the centre and states in relation to disaster management.[xviii] Further, Section 35(2)(e) casts a duty on the Central Government to assist the State Governments as requested by them.[xix] In light of the aforesaid provisions, it is clear that the centre has failed in its duty to assist the states and effectively tackle the disaster at hand. The dereliction was evident when even after the Supreme Court’s order the Centre failed to supply an adequate quota of oxygen to Delhi.[xx]  Moreover, India’s oxygen storages and transport facilities are insufficient to fight the long-term challenges posed by the pandemic. Cryogenic tankers which are used to transport liquid oxygen to the distributors, which in turn convert the oxygen into gaseous form, are scarce in number.[xxi]

Suggestions: Lessons In Pandemic Management

An immediate fix can be to import an adequate number of cryogenic tankers and use oxygen solely for medical purposes. However, in the long run, India needs to be self-sufficient and develop better infrastructure in the form of Pressure Swing Adsorption (PSA) oxygen plants, ventilators and, oxygen storage houses. PSA oxygen plants work on a technology that separates oxygen from the ambient air, which can be directly used for medical purposes. These plants can play a crucial role in battling COVID in the long run because of their economic and eco-friendly technology. The investment cost of a PSA generator is less than half of that of a cryogenic plant. Moreover, the start-up time of a PSA oxygen plant is around five minutes, hence, it can be easily switched on as and when the demand for oxygen arises. The biggest advantage of this technology is that the only raw material it employs is the ambient air.[xxii]

Most importantly, there is a need for the Centre to incorporate a well-structured oxygen distribution model among the states. The Centre can take lessons from the COVID management undertaken by Brihan Municipal Corporation which the Apex Court lauded as the ‘Mumbai Model’. As per this model, the BMC had set up Jumbo COVID centres equipped with piped oxygen cylinders along with designated ‘oxygen nurses’ deployed in wards with a clear mandate to keep oxygen levels up to 96 per patient.[xxiii] All these arrangements were made in January 2021, much before the onslaught of the second wave. 

Fear of shortage of medical oxygen among people has led to a surge in instances of hoarding and black marketing. To tackle these evils, it becomes all the more important for the centre to coordinate with states and ensure a steady supply of adequate oxygen depending upon their regional needs. While doing so, the centre has to allot a certain level of autonomy to the states to procure oxygen in case of emergencies. This model will adhere to the spirit of cooperative federalism on which the edifice of the Centre-State relations securely rests.

Conclusion

The Right to Life means the right to live with human dignity. However, in the current crisis, people are losing their lives to this dreadful virus due to a shortage of adequate supply of oxygen, leave alone securing human dignity. Where the Supreme Court has progressively expanded the horizons of Article 21 and incorporated the right to health, right to a pollution-free environment among others, as an intrinsic part of Right to Life, then it can be reasonably deduced that the right to oxygen should occupy the topmost rank when it comes to the various facets of Right to Life.

In a welfare state, it is the basic obligation of every government to safeguard the right to health of its people by providing unhindered and timely medical treatment which includes the right to maintain an unobstructed supply of oxygen. Accordingly, a National Integrated Health Policy on COVID-19 would be a welcome step towards better pandemic management and securing the citizens’ most fundamental of all fundamental rights.


[i] Asit Ranjan Mishra, ‘India’s healthcare system not equipped to handle the second wave of covid-19 cases: Report’ (Livemint, 16 April 2021) <https://www.livemint.com/news/india/indias-healthcare-system-not-equipped-to-handle-second-wave-of-covid-19-cases-report-11618589699947.html>

[ii] A.K. Gopalan v. State of Madras, AIR 1950 SC 27

[iii] The Constitution of India 1950

[iv] Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295

[v] Sunil Batra v. Delhi Administration, AIR 1978 SC 1675

[vi] Paschim Banga Khet Mazdoor Samity v. State of West Bengal & Anr., 1996 SCC (4) 37

[vii] MK Sharma v. Bharat Electronics Ltd, AIR 1987 SC 1792

[viii] M.C. Mehta v. UOI, 1987 AIR 1086

[ix] Re-Ramalila Maidan Incident v Home Secretary & Ors, 2012 (5) SCC 1

[x] Express Web Desk, ‘Covid second wave: How High Courts have taken up matters relating to shortage of essential supplies’, (The Indian Express  28 April 2021), <https://indianexpress.com/article/india/covid-second-wave-high-courts-state-government-oxygen-medical-supplies-7292699/>

[xi] Sushil Kumar Patel v. UOI & Ors., W.P. No.20889/2020

[xii] Balaji Medical & Research Centre v. UOI & Ors., W.P.(C) (temp) 5500/2021

[xiii] Court on its own motion v. UOI & Ors., Suo-Motu P.I.L. No.4 of 2020

[xiv] Christophe Jaffrelot, ‘What blinded government to the devastating second wave of Covid?’, (The Indian Express 17 May, 2021), <https://indianexpress.com/article/opinion/columns/covid-second-wave-modi-government-assembly-elecctions-7317820/>

[xv] Ashish Tripathi, ‘Situation like national emergency’: SC asks Centre for national plan on oxygen, vaccines, (Deccan Herald, 22 April, 2021), <https://www.deccanherald.com/national/north-and-central/situation-like-national-emergency-sc-asks-centre-for-national-plan-on-oxygen-vaccines-977213.html>

[xvi] § 2(e), The Disaster Management Act, 2005, Act No. 53 of 2005

[xvii] § 11(4), The Disaster Management Act, 2005, Act No. 53 of 2005

[xviii] § 35(2)(a), The Disaster Management Act, 2005, Act No. 53 of 2005

[xix] § 35(2)(e), The Disaster Management Act, 2005, Act No. 53 of 2005

[xx] Shreya Agarwal, ‘Delhi High Court Says Centre Failed To Supply Oxygen As Per Orders; Issues Show-Cause Notice For Contempt’, (Live Law, 04 May 2021), <https://www.livelaw.in/news-updates/delhi-hc-centre-failed-oxygen-supply-delhi-show-cause-contempt-173584#:~:text=%2C%20who…-,The%20Delhi%20High%20Court%20on%20Monday%20pulled%20up%20the%20Centre,passed%20by%20the%20Supreme%20Court>

[xxi] Shine Jacob, ‘Explained | Why India is short of oxygen tankers’, (Money Control, 07 May 2021), <https://www.moneycontrol.com/news/business/explained-why-india-is-short-of-oxygen-tankers-6862521.html>

[xxii] Abantika Ghosh, ‘PSA oxygen plants — the cleaner, cheaper tech that could help ease India’s current crisis’, (The Print, 28 April 2021), <https://theprint.in/theprint-essential/psa-oxygen-plants-the-cleaner-cheaper-tech-that-could-help-ease-indias-current-crisis/646934/>

[xxiii] Jyoti Shelar, ‘What is the Mumbai 02 model and how it cracked the code’, (Hindustan Times, 07 May 2021), <https://www.hindustantimes.com/cities/mumbai-news/whats-the-mumbai-model-sc-has-asked-delhi-to-emulate-to-deal-with-o2-crisis-101620362397320.html>


Amol Verma is a 5th year B.B.A. LLB (Hons) student at Chanakya National Law University, Patna


Image Credits: Dailymotion.com

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