'Easy To Criticize Govt & Court Without Being In Hot Seat' :Supreme Court Refuses To Entertain Plea Seeking CBI Enquiry Into Oxygen Crisis During COVID Second Wave

The Supreme Court on Monday refused to entertain a PIL filed seeking CBI probe in connection with lack of adequate availability of medical grade oxygen during course of second wave of Pandemic.

The plea also sought setting up of a Commission of inquiry headed by former Supreme Court judge or Chief Justice of a High Court.

While observing that the petition begins with an assumption which in itself is questionable, a Bench comprising Justice DY Chandrachud and Justice BV Nagarathna observed that a National Task Force has already been constituted by the top Court consisting of doctors from various institutions.

The Bench noted that the remit of the National Task Force has been formulated in broad terms, and one issue is ensuring adequate supply of oxygen to meet requirement of patients.

Therefore in view of the fact that a body of experts has been constituted to specifically look into matters pertaining to availability and distribution of oxygen, the Bench observed that it is neither appropriate not proper to conduct a parallel proceeding by forming a commission of inquiry.

As regards prayer for investigation by an investigating agency or the CBI, the Bench observed that recourse to jurisdiction under article 32 ought to be preceded by invocation of remedies available under CrPC. However in the present case, without doing so the petitioner has sought to invoke article 32 directly.

"Allegation with regard to criminal wrong ways cannot be assumed nor can be levelled lightly without adequate material." the Bench said.

At the outset, Justice Chandrachud told the petitioner counsel that a national task force has been set up and the Court cannot encroach upon the Executive domain.

The Bench also called out the petitioner for moving the Apex Court under Article 32, rather than pursuing other remedies first.

"You want us to set us an inquiry commission for issues pertaining to distribution of oxygen, or hand it over to CBI. CBI is always matter of last recourse. Have you filed an FIR? Have you invoked provisions of Section 154, before asking for enquiry under CBI?"

Advocate Medhanshu Tripathi appearing for the petitioner submitted that the petitioner had himself suffered due to lack of oxygen and far as other common citizens of this country are concerned in months of March- May lakhs of people died.

The Bench disagreed with the Counsel's submissions and went ahead to say that it is very easy to criticise the Government, and even the Court without being in the hot seat.

"Even the most developed nations of world with a developed infrastructure in terms of health, are struggling to deal with pandemic. It is very to criticise the Government and the Court without being in hot seat. At this point of time, do we do a legal post mortem or do we do something positive which we have done in setting up pf a task force."

In relation to the petitioner's prayer for a CBI inquiry, the Bench said that the remedies under the Criminal Procedure code must be invoked first.

"Everyone wants to run here! You must invoke your remedies under the CrPC. Then come to this court if you find yourself up against the wall. Article 32 can be a jurisdiction of first resort for invoking a CBI inquiry" Justice Chandrachud remarked.

Advocate Tripathi argued that there were indications and suggestions even by Parliamentary Committee that there will be crisis, and even after those suggestions things failed, Commission of enquiry will help to determine who was at fault.

The Bench said "Lets do something positive for society like we did in covid vaccination case, to make sure we are equipped for cases of future contingencies. Court intervened through suo moto jurisdiction. At this point of time when country is dealing with a crisis we must be wary of demoralizing authorities which are combating very serious problem on hands as opposed to doing something positive to improve the situation."

"Sometimes P in the PIL goes beyond public into other interests. We don't want our court to be an instrument to pursue other P's in a public interest litigation." Justice Chandrachud said.

Justice Chandrachud further added "It is easy to blame. People who are in position today, in government hospitals. That's why Patients die and doctors are beaten up, as if to say that doctor on duty is responsible. Even assuming he or she is, answer is not assault. Sometimes a death occurs with all possible facilities available"

The present petitioner sought the following two reliefs from the Court:

• Setting up of commission of inquiry headed by former Supreme Court judge or Chief Justice of a High Court.
• Enquiry by CBI or any other investigating agency monitored by Supreme Court in connection with lack of adequate availability of medical grade oxygen during course of second wave of Pandemic.

Case: Naresh Kumar vs Union of India | WP(c) No.404/2021

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