Ins and outs of laws on oxygen and right to life

By Arjun Krishnamoorthy, J Sagar Associates
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The quote “Liquid isko jeene nahin dega aur oxygen isko marne nahin dega” (The liquid won’t let him live; the oxygen won’t let him die) has been famously associated with iconic screen actor Ajit. It recognized the importance of oxygen (which, in this article, implies medical oxygen), even for the life of his foes. The NCERT chemistry textbooks of early 1990s defined oxygen as a “chemical element with symbol O, atomic number 8, atomic weight 16, that exists in the atmosphere as O2, and is essential for the life of all living organisms on earth”.

Arjun Krishnamoorthy, Senior associate, J Sagar Associates
Arjun Krishnamoorthy
Principal associate
J Sagar Associates

An essential takeaway from this is that oxygen is vital for all living organisms, especially in medical environments. The current oxygen shortage seems at variance with this statement.

We, the people of India, in November 1949, had solemnly resolved to secure, for all citizens, the dignity of the individual. We, the people, also enshrined in the constitution, those immortal words of article 21 that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” The common man understands this statement without the need for in-depth interpretation by the courts. Despite the view of then attorney general Niren De to the contrary, the Puttuswamy judgement clearly sets out what the Supreme Court thought of the fundamental rights enjoyed by citizens.

As part of the right to life, the constitution provides a fundamental right to health under article 21, making it clear, in part IV, that it is the duty of the state to ensure the health of the citizenry.

It is clear that there are two established facts. Oxygen is vital for life, and the state cannot deprive anyone of life, unless procedure established sets out otherwise. It is the duty of the state to ensure the health, and thereby life, of its citizens. Bearing these matters in mind, it is worthwhile exploring legislative provisions with regard to oxygen and the right to life.

On 15 April 2021, the government announced that the consumption of oxygen was only 54% of the daily production capacity. The communication went on to note the official production capacity, the fact that the country had surplus oxygen, and the measures adopted to supply this oxygen to those who needed it. The production of oxygen is permitted because it is a drug under the Drugs and Cosmetics Act, 1940 (act). In April 2020, the Drug Controller General of India issued a direction extending to manufacturers of industrial oxygen the grant (within 24 hours) of a licence to manufacture medical oxygen. Section 3(b)(i) of the act would classify oxygen as a substance intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings, in short, to improve the health of individuals. Section 26B of the act also empowers the government, in the event it believes that a drug is essential to meet the requirements of an emergency arising due to epidemic or natural calamities, by notification in the Official Gazette to regulate or restrict the manufacture, sale or distribution of that drug.

Oxygen is also an essential medicine, in accordance with the National List of Essential Medicines, 2011, and its price may be controlled by the Drugs (Prices Control) Order, 2013, implying that its sale is also permitted. As at 22 April 2021, the Ministry of Home Affairs permits the supply of oxygen between individual Indian states.

In the light of section 26B, although we are in the midst of a pandemic, it seems highly unlikely that the Government of India would, even by mere oversight, restrict the manufacture or distribution of a life-saving drug like oxygen.

It is clear that the manufacture, supply and sale of oxygen are permitted. There appears to be no procedure, established by law that could deprive people of life by cutting off the oxygen that is essential to life. Despite that facts that since as far back as March 2020, the people of India have been shackled by the chains and manacles of this pandemic, and that it is understood by the entire world that respiratory distress is one symptom of covid-19, the people have had to wait until April 2021 for the issue of oxygen shortage to be deemed noteworthy. The answer is apparent in the words of Talleyrand, who observed the restoration of the Bourbon monarchy following the fall of Napoleon, that they had learned nothing and they had forgotten nothing.

It is to be hoped that the state is prepared for the next crisis in this pandemic, thus fulfilling its duties, but do not be surprised to hear Ajit muttering, don’t be silly!

Arjun Krishnamoorthy is a principal associate with J Sagar Associates

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