Bom HC| “Article 21 casts corresponding duty on State to ensure no life is extinguished due to unavailability of oxygen”; HC tells State

Bombay High Court: Observing that the situation about the supply of oxygen at the Goa Medical College is quite grim, the Division Bench of M.S. Sonak and Nitin W. Sambre, JJ. expressed that,

“We have long passed the stage of determining whether patients are suffering from the lack of oxygen or not. The material placed before us establishes that patients are indeed suffering and even in some cases succumbing for want of the supply of oxygen, in the State of Goa.”

Opining that the affidavit filed by Dr. Shivanand Bandekar, Medical Superintendent and the Dean of Goa Medical College would deserve greater credence than the affidavit filed by the Under Secretary (Health) since the Dean is monitoring the patients on day to day basis, the Bench taken noted of the said affidavit regarding details relating to deficit of oxygen supply. The affidavit revealed that, “hospitals were facing many interruptions in the supply of central oxygen on daily basis, leading to near critical fall in the oxygen saturations of patients en mass in the intensive care units. That though there is no problem with the availability and supply of Liquid Medical Oxygen, which is stored in the tank of 20,000 litres at the Super Specialty Block, this LMO cannot be directly used for the main GMC building, which is relying on the supply of oxygen via cylinders which are brought on trolleys and as loose cylinders there has been a problem with the supply of these trolleys and loose cylinders as a result of which there have been instances of a drop in supply of oxygen to the patients, which has resulted in casualties.”

Noticing the abovementioned, the Bench said that the State Administration have to make further efforts, in addition to the efforts which they have already been making to ensure that Goa Medical College is supplied with the required amount of oxygen. The Bench emphasized, this is vital because the right to life is a fundamental right guaranteed by Article 21 of the Constitution.

“There is, therefore, a corresponding duty cast on the State to ensure that this life is not extinguished on account of inability on the part of the State to supply oxygen to these unfortunate victims of the pandemic.”

The duty of state can neither be avoided by pleading helplessness nor by putting forth logistical difficulties in sourcing and supplying oxygen. Such logistical problems must be got over at the earliest so that this tragedy of victims gasping for breath in the presence of their near and dear ones and in several cases even dying for want of necessary oxygen supply is arrested at the earliest. Therefore, the Bench directed the State to take all necessary steps to ensure that such logistical difficulties are overcome at the earliest and there are no casualties for want of a supply of oxygen to the pandemic victims.

Additionally, on the request of state the Bench waived the requirement of Covid negative certificate for entering in Goa to two drivers and one helper per goods vehicle making essential supplies of oxygen, medical drugs and equipments, milk, vegetables, food grains, etc. until further orders. However, the Bench made it clear that at each of the borders thermal scan of such persons would be necessary and if they display the symptoms, then, the police authorities or the other authorities should deny access to such persons within the State of Goa. The Bench clarified,

“This limited waiver is not to be construed as a general license for permitting any persons to enter into the State of Goa, without having the Covid negative certificate.”

The statistics suggest that the positivity rate in Goa is still high. The medical infrastructure is severely overstretched. The Doctors and nurses and the paramedical staff at the forefront of this fight against the epidemic are exhausted. Therefore all concerned must realize that there is no unnecessary insistence of waiver in the name of protecting the interests of the economy. Therefore, the waivers allowed were directed not to be misused by anyone to avoid further spread of the virus. The Bench expressed,

 “No doubt, the importance of the economy can never be undermined, but at this stage at least, the priority and emphasis shall have to be on issues of health and survival. Ultimately, the economy is for the people and not the other way round.”

Once the position improves, obviously the focus can and perhaps will have to shift on the economy. Accordingly the State administration was directed to focus maximum on improving the position of oxygen supply in the State and in particular at the GMC as the statistics indicate alarming number of deaths taking place in the State of Goa practically every day. Hence, this issue has to be given priority over other issues.

[Roshan Mathias V. State of Goa,2021 SCC OnLine Bom 708, order dated 12-05-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsels for the Petitioners: Nigel Da Costa Frias with Vishal Sawant and G. Malik

Counsels for the State: AG D.J. Pangam  with AAG Deep Shirodkar

For Scoop Industries Pvt. Ltd.: V. Rodrigues,

For Principal Secretary (Finance), State of Goa: Mr. Puneet Kumar Goel

For Secretary (Health), State of Goa: Mr. Ravi Dhawan,

Dr. Tariq Thomas, Secretary, Urban Development, State of Goa.

Dr. Shivanand Bandekar, Dean, Goa Medical College, Bambolim.

Dr. Viraj Khandeparkar, Nodal Officer, Goa Medical College,

Bambolim.