Union of India Vs Rakesh Malhotra & Anr. (Supreme Court)
The rationale for constituting a Task Force at a national level is to facilitate a public health response to the pandemic based on scientific and specialised domain We expect that the leading experts in the country shall associate with the work of the Task Force both as members and resource persons. This will facilitate a meeting of minds and the formulation of scientific strategies to deal with an unprecedented human crisis. The establishment of this Task Force will enable the decision makers to have inputs which go beyond finding ad-hoc solutions to the present problems. 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. Estimating projected needs is crucial to ensure that the country remains prepared to meet future eventualities, which will cause a demand for oxygen, medicines, infrastructure, manpower and logistics. The establishment of the Task Force will 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. Bearing this in mind, we presently frame the following terms of reference for the Task Force. These terms can be modulated subsequently, as and when the need arises.
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;
(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 purpose of conducting audits under item (v) of paragraph 24 is to ensure a measure of accountability for the proper distribution of oxygen supplies made available by the Union Government to the States/UTs. For the purpose of facilitating the audits under item (v) of paragraph 24 above, the Task Force will constitute sub-groups/committees for each State/UT comprising:
(i) An officer of the State/UT Government not below the rank of Secretary to the State Government;
(ii) An officer of the Union Government not below the rank of Additional/Joint Secretary;
(iii) Two medical doctors in the State/UT concerned including at least one with administrative experience of managing the medical facilities of a hospital; and
(iv) A representative from the Petroleum and Explosives Safety Organisation (PESO).
For carrying out the above audit exercise for NCTD, the audit sub-group shall consist of:
(i) Dr Randeep Guleria, Professor and Head, Department of Pulmonary Medicine and Sleep, AIIMS;
(ii) Dr Sandeep Budhiraja, Clinical Director & Director – Internal Medicine, Max Healthcare; and
(iii) An IAS officer, each from the Union Government and GNCTD, not below the rank of Joint
We emphasise that 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 The purpose of the audit is not to scrutinise the decisions made in good faith by doctors while treating their patients.
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) until the Task Force has submitted its recommendations in regard to proposed modalities. 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. The Task Force shall also submit its recommendations from time to time to this We request the Task Force to commence work immediately, taking up the pressing issue of determining the modalities for oxygen expeditiously within a 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.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
1. On 5 May 2021, three specific issues were flagged by this Court:
(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:
