The Political Fix: Modi failed the biggest test of his tenure. Will a Supreme Court panel now help?

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The Big Story: Phone-a-friend

The first time Indian Prime Minister Narendra Modi seemed to take public notice of the dramatic oxygen shortage affecting cities like Delhi that had been hit hard by the Covid-19 second wave was on April 16, when he held a “comprehensive review” of supply and logistics.

On April 23, he had discussions with oxygen manufacturers. On April 27, Modi held a “high-level meeting” and was briefed by an “Empowered Group” of bureaucrats working on oxygen supply. That day, an affidavit submitted to the Supreme Court by the Centre claimed that Modi and Home Minister Amit Shah were providing “active and constant supervision” and “direct involvement” in augmenting the oxygen supply and managing distribution. On May 2, the prime minister chaired another meeting to “review usage of gaseous oxygen”.

And yet despite all of that direct involvement from Modi and Shah, on May 8, the Supreme Court decided that the Centre alone could not be trusted to handle India’s oxygen needs.

The court ordered the establishment of a 12-member National Task Force and gave it the job of deciding how to augment and allocate medical oxygen to states. It also delegated the task of “auditing” oxygen usage to a sub-group of this task force.

Given that the oxygen shortage has become one of the key aspects of India’s gigantic Covid-19 second wave, it is hard to see this move as anything but an indictment of the Centre’s administrative abilities. Every day sees battles in High Courts about the Centre’s allocations, citizens everywhere are still struggling to get access to cylinders, concentrators and hospital beds, while the Ministry of External Affairs has squabbled with foreign missions over it.

Covid-19 was always going to be the greatest test of Narendra Modi’s tenure. It has become evident that he and his government have failed.

This is, after all, the government that declared victory over the virus in February and, instead of acknowledging the crisis spent the next few months fighting “narrative” battles, as we wrote last week.

As The Lancet put it in a recent editorial,

“The Institute for Health Metrics and Evaluation estimates that India will see a staggering 1 million deaths from COVID-19 by Aug 1. If that outcome were to happen, Modi’s Government would be responsible for presiding over a self-inflicted national catastrophe. India squandered its early successes in controlling COVID-19. Until April, the government’s COVID-19 taskforce had not met in months. The consequences of that decision are clear before us, and India must now restructure its response while the crisis rages.”

Now, after weeks of death and despair with India facing the specter of hundreds of thousands more dying, some of the responsibility is being swept over to an unelected, Supreme Court-appointed panel filled primarily with doctors and two bureaucrats.

While their initial responsibility is to address the oxygen situation, the full mandate of the National Task Force is to “facilitate a public health response to the pandemic based on scientific and specialised domain knowledge” and to “enable the decision-makers to have inputs which go beyond finding ad-hoc solutions to the present problems”.

Indeed, here are some of the terms of reference for the National Task Force laid out by the Supreme Court, beyond oxygen supply:

  • Review and suggest measures necessary for ensuring the availability of essential drugs and medicines.

  • Plan and adopt remedial measures for ensuring preparedness to meet present and future emergencies which may arise during the pandemic.

  • 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.

  • Suggest measures to augment the availability of trained doctors, nurses and para-medical staff including by the creation of suitable incentives.

  • Promote evidence based research to enhance effective responses to the pandemic.

  • Facilitate the sharing of best practices across the nation to promote knowledge about the management of the pandemic and treatment of cases.

  • Generally, to make recommendations in regard to other issues of pressing national concern to find effective responses to the pandemic.

Why would India need a National Task Force to help it figure out the availability of essential drugs and medicines or to promote “evidence-based research” or to plan
“remedial measures to meet present and future emergencies which may arise during the pandemic” if the Centre had been capably handling matters all along?

There have been four major responses to this development.

First, some have argued that this cannot be read as a critique of the Centre’s handling of the pandemic because it was partly responsible for suggesting such a task force on oxygen allocations to the court. Indeed, when queried about vaccine policy for example, the Centre mounted a stern pushback, insisting in an affidavit that “while dealing with a pandemic of this magnitude, the Executive does have a room for free play in the joints, in larger public interest.”

Certainly, this approach helps to create a layer of decision-making that can be seen as relatively impartial, especially since most forecasts suggest India is going to face a severe shortage of oxygen over the next few weeks, with many states likely to demand a larger allocation than is available. It also shifts the policing of oxygen usage to the auditing sub-group.

Leave aside the fact that India already had a Covid-19 task force that was not convened in February or March. That such a tactical move would even be needed, however, is a reflection of how little trust states have in the Centre’s abilities, fairness and judgment. And who is to blame them?

The same Centre has in the past few months, decided to respond to questions about vaccine shortages with a shockingly political tirade, then completely rejigged the national vaccination policy without consulting with states or explaining its decisions to the public.

This is the government that last year, amid the Covid-19 crisis, decided to go to battle with the states rather than pay them Goods and Services Tax compensation as promised. Its attitude is one of the reasons the last few years have been described as a “defining moment” for Indian federalism.

Even if this is a clever maneuver to distribute the pain of the next few months without it turning into partisan pressure, it only papers overs a deeper rot.

Second, others have argued that it will do exactly that: Paper over the Centre’s failings, allowing Modi and his ministers to evade responsibility for the unfolding situation.

Again, this may end up being true on a small scale. Supreme Court-appointed panels don’t have the best track records in offering nimble responses to problems that have both political, as well as practical dimensions. In the past, they have proven to be more inflexible than politicians to democratic pressure. They have occasionally been more prone to relying on elite- or Delhi-driven discourse than even the Centre, ignoring interventions from the states and various High Courts.

Still, these fears assume the Centre is handing over control of its pandemic response to the panel wholesale. This would seem to mirror the rejigging of vaccine procurement in response to pressure about shortages to hand over the problem to the states. The National Task Force, however, will only have the power to make recommendations.

At the end of the day, implementation remains in the hands of the government and democratic pressure will follow.

If used rightly, the task force should offer credible responses to vexing problems that governments can draw from and point to, without being used as a shield. What would help, of course, is if the task force can push for genuine transparency from the government and for the public, instead of the narrative-based drip-drip of information currently available.

Third, are these the right experts for India to rely on? Will they be effective?

Many have pointed out, for example, that the task force is stuffed with doctors, when the oxygen problem really is one of supply chain management. Is this the time to take doctors away from their hospitals, presumably struggling to handle the massive surge in patients, to deal with questions of allocating liquid oxygen between states? Others have asked if so many doctors of private hospitals should be on the panel.

Given the fact that the Supreme Court has asked the task force to begin work immediately, and India continues to face a massive crisis, some of these questions are hopefully unnecessary. The Supreme Court has given the panel the freedom to consult other experts and to form sub-groups for specialised areas or regions. Hopefully that is what it will do – including communicating with the states themselves, and not simply relying on the Centre’s representations.

They will of course have to scramble to put together the sort of policy recommendations that the government should have been spending the last year fine-tuning, in the middle of a national disaster, no easy task.

And finally, is such a Supreme Court intervention a good one for the country?

As discussed above, the federal concerns are well documented. Centre for Policy Research president Yamini Aiyar argued in 2020 that India needed a National Empowered Emergency Disaster Council featuring Centre and states to oversee the Covid-19 response in a genuinely federal manner. The lack of such a structure may have meant that it would anyhow have eventually come down to the Supreme Court, which is there to settle such questions.

But the ceding of policy space to the judiciary may dangerous in the long run. The Centre’s decision to rely on the Supreme Court to fix its political failure on the farmer protest issue earlier this year appeared to backfire, with few taking the court-appointed panel seriously and even more widespread commentary that saw the court as doing the government’s bidding.

Such an outcome is much less likely here, given the scale and nature of the crisis, which will most likely be the biggest faced by India in generations. But, as we said at the beginning, that it has even come to this is the result of the tremendous abdication of the Centre, a whole year after the crisis first hit.

Modi’s government has failed its citizens. The National Task Force has a massive challenge ahead of it. The least we can hope for is that the panel will bring less narrative building and more empathy, diligence, and transparency to this immense task.

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