Gorakhpur is a legal tragedy too: Laws needed to regulate the state's casual attempts at dealing with private vendors

Over 70 infants died at the Baba Raghav Das Medical College in Uttar Pradesh's Gorakhpur district last week, because the oxygen supplier stopped providing the hospital with liquid oxygen, since the pending bills hadn't been cleared. The supplier, Pushpa Sales, said the college owed it an amount of Rs 68 lakh, and non-payment of dues resulted in cutting off of oxygen supply.

The supplier said it wrote numerous letters to the college, cautioning it about disruption of services, but it appears that these letters elicited no response. The college finally made a partial payment last Friday, but this came too late, since 23 infants had already died after being deprived of vital oxygen supplies.

One would think there were legal mechanisms in place to ensure that suppliers to a hospital were prevented from doing something like this. But surprisingly, the Essential Services Maintenance Act talks only about strike action and doesn't deal with situations of suppliers taking action on account of non-payment of dues.

The Baba Raghav Das Hospital in Gorakhpur. Image courtesy: Twitter/CNNnews18

The Baba Raghav Das Hospital in Gorakhpur. Image courtesy: Twitter/CNNnews18

In fact, a report on Hindustan Times said there were notices issued by the supplier on 1 August and 8 August as well, warning the college of impending disruptions, but the authorities still didn't think of moving court to seek an injunction to prevent the supplier from cutting off vital resources.

When governments enter into contracts, there is a need for them to realise that these are not like ordinary contracts between two parties. Government contracts for supplies are usually for public services and goods. But with increasing reliance on the private sector to provide essential public services, there is a need to ensure that these private contracts are also held up to the same standards as public services otherwise would.

For example, if a city were to privatise its bus service, there would have to be continuing service obligations — that would require buses to run even if doing so wasn't profitable anymore. After all, running a bus service is a public necessity, just like supplying oxygen to a hospital is a vital and essential public function.

Another classic situation that would potentially cause problems in future would be electricity. What if a government hospital loses power due to an unpaid power bill? Will the ICU suddenly stop? What happens to patients and babies in the critical care units or those under respirators? With electricity becoming increasingly privatised, this is actually a very real possibility.

As the government moves out of more and more areas of operations, it is imperative that there are new regulations to deal with eventualities like these. The failure at Gorakhpur is as much a legal and regulatory failure as it is a moral failure on the part of the officials involved. There should have been clauses in the contract that prevented the supplier from cutting off oxygen supply without at least giving the hospital a three-month prior notice. Moreover, the hospital should have approached the courts to get an injunction that prevented the supplier from cutting off oxygen supply.

However, none of this is to say the supplier didn't have a legitimate right to get paid. The government should have to give a bank guarantee to cover a certain portion of the bill when it enters into long-term supply contracts just to cover such eventualities. These are structural problems that will arise as an old lethargic state begins to embrace the ideas of public private partnerships.

Ultimately, children died in Gorakhpur because of government lethargy and inefficiency. But children also died because a supplier decided to flex muscles and show a hospital who the boss was.

There is an urgent need to bring about laws that would regulate essential government contracts to make sure that such behavior or situations do not occur again in the future. It's also only the public who can push for such a law, for only they have the vested interest to do so; it is not in the government's interests.

After all, such a law will affect the corrupt nexus between the impacted parties. And this will never happen unless there is sufficient public pressure on the government to make sure there are mechanisms in place, that shield the public from contractual disputes that occur between supplier and state.

The situation in Gorakhpur begs the question 'if a partial payment could be made on a Friday why not on Thursday?' Was a dead child really needed to spur a Uttar Pradesh bureaucrat into action? The public needs to ask more such tough questions from their representatives. Their MLA or chief minister is not the person they need approach. These are questions that must be answered by the corporators. After all, this is the municipal corporation's fault. The citizens of Gorakhpur demand answers from their local representatives, they need to make sure not one of them gets away without giving them a satisfactory answer. There needs to be an inquiry by the state government into how the health budget of the municipal corporation is spent and how the money is disbursed.

Rs 68 lakhs cost the lives of more than 72 children. Is that what a child's life is worth in Uttar Pradesh? The tragedy in Gorakhpur raises a lot of uncomfortable questions and no comfortable answers at all.

Updated Date: Aug 15, 2017 06:45 AM

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