By Dr. Gyan Pathak
The nation was shocked. First, the Union Government of India denied death due to shortage of oxygen, and then several states of the country, as against witnesses of such happening. We have a section in the Indian Penal Code (IPC) to deal with ‘culpable homicide not amounting to murder’, but the Executive did not file any case, and therefore judiciary did not come into the picture to ascertain the truth and guilty punished. Executive saved itself even from giving compensation to the victims. Judiciary so far is silent. It is not acceptable.
The nation must follow the law of the land. When we have victims of scheduled crimes Executive the prosecuting body must register First Information Report (FIR), whether there is witness or not. By definition, FIR is to be registered when the information of a crime first reaches to the competent authority by whatever means. It does not need victims or their relatives, or witnesses. During April and May 2021, every media were reporting death of COVID-19 patients on roads and in hospitals due to shortage of oxygen, was being sold in black market, and people were reported dying because authorities were mismanaging the supply of the same, and the information of such negligence and mismanagement causing deaths reached every ear save the Executive. They had no information of such cases they have now claimed, but we had both – victims and witnesses, information and reports attracting section 307 of the IPC among other provisions of criminal laws.
When everybody knows through well published reports, Executive’s claim that they had no information is false. Not registering FIR was wrong. Moreover, we have law of evidence which categorically says how to go about witnesses. Of witnesses relating to non-cognizable offences, we decide after summary hearing, but of witnesses relating to congnizable offences, there is a need for comprehensive hearing. Since the Executive has no power to summarily dismiss witnesses in a congnizable offences, such as 307, the government goes beyond its power by summarily dismissing them, and claiming that there had not been any death due to shortage of oxygen, especially when we have both – victims and witnesses.
The Constitution of India guarantees security for life and property of its citizens and the government is responsible for maintaining it. If the government fails in protecting its citizens, it must compensate the loss. The issue of compensation springs up under this concept. The Modi government has categorically told the Supreme Court of India that it can’t give ex-gratia Rs 4 lakh compensation for COVID-19 victims, though the SC has ruled that under the Disaster Management Act compensation for victims is mandatory and directed the centre to form guidelines within 6 weeks. Without going into merit or demerit of the case, it can be said that the Modi government has been unwilling to give any compensation to its citizens for the government’s failure to protect live and property of the people.
The statements issued by the elected government of NCT Delhi must be understood in this context. It can be recalled that AAP government had formed an audit committee to assess availability and demand of oxygen and provide compensation to COVID-19 victims. However, the centre through its appointee Lieutenant Governor got the committee stopped. Health Minister of Delhi has said that they will appeal the LG to allow them to run the committee. “Many people died due to shortage of oxygen,” Health Minister of Delhi has said. Delhi government has already submitted a report on the death audit committee to the Delhi High Court on deaths of 21 patients.
Apart from this specific case, there are many witnesses and reports of death due to shortage of oxygen in hospitals in major cities of the country, including the NCT Delhi. In one prominent hospital, at least 12 patients, including a doctor, died when it ran out of oxygen on May 1, 2021. The incident had shocked Delhi and the nation, and was widely reported not only by Indian media but also the foreign media, including the BBC. Modi government cannot claim that they do not have any information.
The Union Government had actually prevented the reporting of death due to shortage of oxygen not only through their reporting guidelines but also benefited from our system of reporting death in our hospitals. It makes the issue a medico-legal case, which judiciary needs to settle, so that the country should not if people were actually died due to shortage of oxygen, and the responsibility of such deaths fixed, and the guilty be punished.
Since the Union Government was at the helm of affair of handling of COVID-19 and the oxygen supply, it cannot absolve itself from responsibility of protecting the lives of citizens. Indian Council of Medical Research (ICMR) and the National Centre for Disease Informatics and Research (NCDIR) under the Union Government had been issuing guidelines. They have issued a “Guidance for appropriate recording of COVID-19 related deaths in India”. The document had categorically mentioned that asphyxia, respiratory arrest or failure among others cannot be mentioned as cause of death
Everybody knows even a common man, that people die of asphyxia or respiratory arrest or failure when oxygen is not supplied to their lungs in sufficient quantity. Additionally, ICMR’s “Compendium of Guidelines, Instruction and Standard Operative Procedures for COVID-19” published by the Maharashtra Governments, that has also claimed “no death due to shortage of oxygen”, also contains similar instructions as verbatim”. Due to such instructions no death could be reported due to shortage of oxygen, or due to its effects like asphyxia or respiratory arrest or failure. And hence the statement “no deaths have been specifically reported by states/UTs due to lack of oxygen”, as our Union Minister of State for Health and Family Welfare has made in the parliament.
It is clear dishonesty because no doctor will or can mention asphyxia, hypoxia, respiratory arrest, or respiratory failure as cause of death, especially after the Union Government’s guidelines and state’s SoPs. Moreover, when these are not mentioned as cause of death one cannot prove short supply of oxygen into the lungs which causes such devastation to human life. Doctors simply reported medical conditions as cause of death, which concealed the reality of the cause of death. “Medical conditions” is too vague a term to reveal the truth. It is a serious concern when crime such as culpable homicide is involved, because it may save the perpetrator of the crime.
We must also take note of the general practice in our hospitals in reporting death. ‘Mode of death’ and ‘cause of death’ are two distinct concepts under which a death is reported. It is also due to this practice, doctors reported “medical condition” as cause of death, ignoring the ‘mode of death’ that followed after shortage, non-supply, or insufficient supply of oxygen to the lungs, which consequently brought asphixia, hypoxia, respiratory arrest, or respiratory failure causing death of the COVID-19 patients. Union government has said that death is a state subject which is true, but it cannot absolve its responsibility because the Registrar of Births and Deaths in India functions under the Centre
The Office of the Registrar General of India cannot change the Medical Certification of Cause of Death, but the medical certification guidelines must not be made in such a way to conceal the true cause of death under vague terms. There were also guidelines regarding disposal of the dead bodies which made hindrance in ascertaining the trued cause of death beyond the vague “medical conditions” which would otherwise have needed autopsies. The fear of infection had also discouraged autopsies. In such a situation, the statement of Union Ministry of Health that there was no death due to shortage of oxygen is untrue. It was just a cover-up for mishandling of COVID-19 and oxygen. (IPA Service)