The failure is clear and can be proved by statistics, can the government be held accountable?

In Delhi, the 30-year-old Naveen was gasping due to a decreased oxygen label (SpO2) when he was allegedly denied a bed at the Government Rao Tula Ram Memorial Hospital. Despite having such a low SpO2 label, the examining doctor did not admit Naveen to the hospital.

Even though Naveen’s family kept on begging for help like crazy, the hospital did not arrange an ambulance to transfer him to another hospital. After 1 hour Naveen succumbed to decreasing oxygen.

According to Naveen’s family, he became a ‘victim of neglect of fundamental rights by the government’. He has approached the Delhi High Court to determine the accountability of the government through compensation.

Naveen was among the thousands of people in the country whose death was not just due to the virus but due to the absence of medical treatment at the right time.

On April 24, 25 people died due to lack of oxygen at Jaipur Golden Hospital in Delhi. Just 6 days later, 7 people died due to lack of medical facilities in a hospital in Gurugram.

Medical Director of Jaipur Golden Hospital, Dr. DK Balooja told NDTV that he had been allocated 3.5 metric tonnes of oxygen by the government and should have reached it by 5 pm, but he arrived at midnight.

It is the constitutional duty of the state to protect the fundamental right of its people to live. The absence or absence of medical infrastructure shows that the state has failed to fulfill its duty. Since this failure is clear and which can be proved by the data, can we hold the government accountable? Is the government criminally responsible for this misery?

Have the authorities been negligent?

High courts across the country have slammed the Election Commission like the Central Government, the State Government and the Constitutional Authority for failing in their duties.

On Friday, May 7, the Delhi High Court said that the medical infrastructure in Delhi is in a shambles and the state government cannot behave like an ‘ostrich in the sand’. A month ago, the court said that despite getting funds for the oxygen plant in December 2020, the Delhi government failed to set up it.

Government authorities have also got data for their sheer negligence. While the Madras and Allahabad High Courts have heard the Election Commission for election mismanagement, on the other hand, the Jharkhand High Court has issued a show cause notice to the drug controllers for failing to stop the black marketing of essential medicines and oxygen.

Various courts have found that governments have failed to protect the fundamental right to life enjoyed by the people of India under Article 21 of the Constitution. He has been proven to retract from his responsibility and he has also been criticized, but the situation on the ground is still terrible. People are also struggling for basic medical needs to survive from Covid-19.

What after this criminal negligence?

Section 304A defines criminal negligence within the Indian Penal Code. Under this section, a person convicted can be punished with imprisonment for 2 years or fine or both.

The basis for proving the guilt of criminal negligence is:

• The accused should have ‘duty of care’ towards the victim.
• The accused has failed in that duty.
• The accused has failed to perform the duty that was expected of him or should have done what he should not have done.
• Due to the negligence of the accused, the victim has to be genuine and concrete.

Although the ‘right to health’ is clearly not a part of the fundamental rights received under the Constitution, the Supreme Court in its various judgments has interpreted that it is a part of the ‘right to life’ obtained under Article 21.

Amala Dasarthi, who is practicing in Delhi, is helping people to reach the medical system in this crisis. He believes that a clear connection can be drawn between the government’s forecast of this current crisis and the refusal to act on it and the deaths due to non-availability of lifesaving medical facilities across the country.

“The Covid-19 crisis was recognized as a global health emergency and last year saw a nationwide lockdown for almost 2 months. When India knew that its investment in health care facilities was so low, it would ask the government It is practical to expect that it would invest to increase its health care capacity in the last 1 year to fight this Covid-19 crisis. It is also practical to expect the government to make a strong effort to handle the current crisis and ensure that To provide a system for citizens to have access to life saving healthcare. “
– Amala Dasrathi

Therefore, despite the clear warning that the government is unable to guess the second wave, at first sight it seems negligent in its duty to protect the ‘right to health’ and ‘right to life’ of the citizens.

The lack of this forecast is consistent with the extent of criminal negligence in the government’s complacency and ruthlessness amidst rising cases and deaths. The election rally continued in full swing and religious crowds were allowed to gather. The event proved to be a super spreader of the virus.

Naveen’s case, litmus test

Kumbh Mela, election rallies, panchayat elections – in these events, there is major evidence to run a case of criminal negligence on the central government and the state governments.

This is criminal negligence as the authorities not only made predictions but acted against public health on all parameters. When the second wave was spreading, the Prime Minister and Home Minister were addressing election rallies in West Bengal. Criminal negligence will probably be the shortest punishment for such apparent neglect of the protection of the lives of people from the virus.

On May 4, the Delhi High Court sent a notice to the Delhi government in a petition filed by Naveen’s family for compensation. How the court handles the case, what is its opinion and its final decision is the accountability of the governments and authorities (which I I understand criminal negligence) can prove to be a milestone in deciding.

Given the power of the government and the risks associated with criminal justice, it would be a mountainous task for the aggrieved family to prove the government guilty for its negligence. Nevertheless, his petition for compensation will be more acceptable to the court.

The Supreme Court, while hearing the Covid Crisis in the Self-Cognition Case, had advised the Central Government to formulate a nationwide policy of compensation for the people who died due to lack of medical facilities. The Supreme Court said that the government has such power under the National Disaster Management Act.

Instead of fixing the criminal negligence of the government, this situation of compensation seems more punishable for not protecting the fundamental right of the people.

There is still no countrywide policy on compensation for ‘victims of the system’. So Naveen’s family was forced to go to court. Time will tell whether the victim families will get compensation for their rights or not, but if the failure of those who have failed to fulfill their duties is proved, then it will be a step towards justice.

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A decision taken by the Delhi High Court recently has the potential to undo the government’s steps to provide the GST Anti-Profiteering Authority with greater powers to ensure no profiteering occurs.

The High Court has provided relief to Reckitt Benckiser India Private Limited by ordering an interim stay on the notice issued by the Director General of Anti-Profiteering (DGAP) seeking information on all products of the company, whereas the National Anti-Profiteering Authority (NAA) had ordered an inquiry for only one product.

Earlier this month, the government had provided the DGAP with precisely this power, to assess products that are currently not part of its investigation.

“It is pointed out by Mr. P. Chidambaram, learned senior counsel for the petitioner, that the National Anti- Profiteering Authority has ordered an inquiry as regards one of the products of the petitioner i.e. Dettol HW Liquid Original 900 ml (complained product).

“The grievance of the petitioner is that the Director General of Anti-Profiteering (DGAP) has by the impugned notice dated 8th/9th April, 2019 sought information on all products of the petitioner,” the order said.

“The court is of the view that the petitioner has made out a prima facie case for grant of limited interim relief.

It is directed that, till the next date, it will not be required to furnish information to the DGAP pursuant to the impugned notice other than information pertaining to the complained product,” the order added.

The court, however, clarified the NAA’s inquiry as far as the complained product is concerned would proceed in accordance with the law.

The government had, in early July, notified the changes in the rules of the NAA that allowed the NAA to direct the DGAP to further a probe, in case there was a reason to believe that there was a contravention in the rules, into goods and services not covered in the DGAP’s report.

“As a matter of practice, anti-profiteering investigations have been extended to products and services of a company, which were not a subject matter of the complaint,” Pratik Jain, partner and leader indirect tax, PwC India said, “This not only means additional paper work, collation of data etc. but also results in delay in completion of the investigation. If this principle [of only looking into the complained product] is finally upheld by courts, it would provide the much needed relief to industry, which has been requesting the government for issuance of definitive guidelines with respect to anti-profiteering proceedings

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