Under oath, warned of perjury, Bihar government lied about its management of COVID-19
On 20 March, as states across India were facing the worst ravages of the second wave of the COVID-19 pandemic, the Bihar government said in a reassuringly-worded press release that “every district’s control rooms are in active mode; the situation is being monitored.” By the end of the month, Bihar had reported only 436 active cases. Yet, a surge in the virus’s spread over the next two months would kill 9,375 people. This was a revised figure from that the state government put out on 8 June, after the Patna High Court ordered it to recheck its facts or face perjury. The state government had earlier claimed a death toll of 5,458. Despite attempts by Nitish Kumar, Bihar’s media savvy chief minister, to frequently advertise his government’s management of COVID-19 as a success, a series of judicial proceedings taken up by the Patna High Court highlight the state’s consistent failures to provide hospital beds, oxygen and data about deaths throughout the second wave. The hearings also emphasise how the Bihar government frequently lied to the courts about their pandemic preparation in an attempt to hide deliberate mismanagement.
Kumar, who has been Bihar’s chief minister since 2005 ,except for a ten-month hiatus, took office for the fifth time in November 2020, shortly before the second wave of the COVID-19 pandemic in India. Between his inauguration and March 2021, Kumar attended three virtual meetings with Prime Minister Narendra Modi about the handling of the pandemic and chaired one meeting with the bureaucrats of his state. He warned his bureaucrats to be alert to the possibility of a second wave, but his own events lacked the same alacrity. On 12 March, he attended Shivratri puja at a temple in Patna amidst hundreds of devotees, which public health experts advised against from the beginning of the pandemic. He even sat through a dance programme for hours on the occasion.
Yet eight days later, in a press release, Kumar told the state, “In any festival or event, citizen should participate in limited numbers only and follow corona guidelines strictly.” Following the incident, the opposition in Bihar revived the sobriquet of Paltu Chacha—turncoat uncle, which Kumar first had thrust upon him after he broke his alliance with the Rashtriya Janata Dal in 2017—for his going back on his words. Over the next two months, Kumar’s government routinely overestimated its preparation and exaggerated its efforts to the court, while citizens scrambled for beds and oxygen.
On 9 April, the number of active COVID-19 cases reached 9,357, almost 18 times more than where the number stood on 20 March. Despite the dramatic rise in cases, the Bihar government refused to order a lockdown. This decision was likely taken under the influence of Mangal Pandey, a BJP legislator, who was health minister of the state at the time. Pandey had told journalists on 31 March and 11 April that there was “no need of lockdown” and that the situation was “not alarming.”
This mirrored Modi’s own position of avoiding lockdowns during the second wave after the unpopular and poorly managed first national lockdown. Bihar’s government has often been lauded as having a “double engine” because Kumar’s party, the Janata Dal (United), is an alliance partner of the Bharatiya Janata Party in power at the centre and this is seen as a precondition for quick decision making and good governance. During the second wave, the alliance appeared to have become an impediment in using lockdowns when they were most needed in April. On 11 April, when Pandey again announced his opposition to a lockdown, active cases in the state had risen to 14,695, 33 times what it was on 20 March. Pandey, though, said that cases were rising because testing had been intensified.
While Kumar and Pandey sounded sure of their pandemic handling, news reports of people running around hospitals for oxygen in the state did not escape the Patna High Court. On 15 April, the court invoked its constitutional power of judicial review of the government’s actions to safeguard the rights of citizens. The court said, “The newspaper reports, clippings of which are there on record, portray a gloomy picture which reflects that on one hand the number of covid cases are rising every day to alarming proportion and on other hand, the patients are reportedly running helter skelter to find beds in government and private hospitals.” The court asked Pratyay Amrit, a close confidant of Kumar who had been raised to the position of health secretary at the start of the pandemic, to join the proceedings.
Amrit told the court that the state had three tiers of health facilities as per the union government’s COVID-19 protocol. COVID Care Centres, or CCCs, are “makeshift facilities,” usually refurbished hotels or schools, for mild cases or suspected patients. Dedicated COVID Health Centres, or DCHCs, are hospitals with “assured oxygen” equipped beds to treat moderate cases. Dedicated COVID Hospitals, or DCHs, are hospitals with ICUs, ventilators, a CT scan machine and oxygen. Amrit submitted data that suggested that the number of CCCs, DCHCs and DCHs, as well as their respective bed capacities, were far in excess of what the state required at the time. Amrit also told the court that one lakh people were tested on the previous day and 50 percent of them with RT-PCR tests that have a higher accuracy than the more commonly used antigen tests. Kumar had previously promised that by December 2020, 70 percent of all tests conducted by the state would be RT-PCR tests. Amrit also said that around 11 CT machines were available at various DCHs in the state. The judges said, “The data so presented give a different picture altogether.” The judges asked Amrit to transfer the data to the court master for it to be examined.
At the 15 April hearing, the court also raised the issue of non-availability of oxygen with Amrit. He told the court, “A High Level Committee is already looking into this aspect of the matter and the problem is likely to be resolved soon, and in any case by 17.4.2021.” This was the first of a long string of lies that the Bihar government told the court over the next month. On 16 April, Kumar chaired the high-level meeting where he told his secretaries to make continuous supply of medicine and oxygen to hospitals. In a press release that day, he also told journalists that suggestions from Bihar’s opposition parties would be taken and acted upon.
On 17 April, the court examined the data that Amrit had submitted. The data claimed that of the 12,111 beds at CCCs across the state, only 292 were occupied. Of the 6,748 beds at DCHCs, 4,421 were oxygenated and only 980 occupied. Of the 1,195 beds available at DCHs, only 571 were occupied. There were only 213 ICU beds, of which only 104 were occupied. The bed occupancy was surprisingly low in government data, below 50 percent in all categories and as low as 2.4 percent in CCCs.
The court called the data “baffling” and said that it “defied logic.” The judges said, “On one hand covid patients are running helter-skelter for admission in covid care centers/dedicated covid care centers/dedicated covid hospitals, the figures presented by the health department that a large number, rather, most of the beds available for covid patients are unoccupied.” The court also said that Amrit had himself admitted to the lack of oxygen in the last hearing and yet his data claimed an excess of oxygen in the state. “The contradiction has remained unexplained,” the court said.
In the government’s defence Amrit told the court that beds were unoccupied because there was a “lack of awareness among affected people about availability of such facilities.” The court called Amrit’s excuse “unacceptable logic” and ordered the government to create an online portal to give live details of bed availabilities in all hospitals. The court also asked the government to do day-to-day briefings to people on the COVID-19 situation. The Bihar government began daily briefings and daily reports on bed availability, testing and vaccinations—which some other states had begun more than a year earlier—only after the court order.
The data, however, still showed the immense regional inequality in access to COVID-19 care. There were only 11 DCHs to serve a state of 38 districts and a population of 8 crore. Of the 11, four were in Patna alone, leaving Bihar’s vast rural hinterland sorely underserved. According to the data, the DCHs had a total of 226 “functional ventilators.” This was another lie. What the government hid from the court was that they did not have anaesthetist and technicians to operate a majority of those ventilators, something I confirmed in my own ground reports from COVID hospitals in the state. During my visit to a DCH in Nalanda district on 30 April, I found none of the 14 ventilators being used. The staff had told me that there was no one to operate them. The lie would be caught in the next hearing.
In the 17 April hearing, the court also asked the health secretary if the government has “any comprehensive plan to meet challenges arising out of present surge.” Amrit told the court the chief minister was going to hold a meeting with district magistrates and superintendents of police of all districts on the next day. He said the government would then come up with a plan and submit it to court on 19 April.
On the same day, Kumar attended an all-party meeting called by Phagu Chauhan, Bihar’s governor. Even after being slammed by the court, Kumar exuded confidence. “We are active about availability of oxygen and medicine,” he said. Tejashwi Yadav, the state’s leader of the opposition, argued that he had sent 30 suggestions through letters that had been ignored by Kumar. Apart from suggestions on improving health facilities, expediting testing and treatment, Yadav wanted Kumar to form a “task force” whose members should be “epidemiologists, public health experts and political leaders as well.” No such task force would be formed for nearly a month.
On 18 April, Kumar met the district magistrates and superintendents of police to know the ground realities from their respective districts. The meeting began with Amrit updating the chief minister through “data on daily positivity rate, active cases, number of tests per 10 lakh population and district-wise data on active cases, recovery rate, total testing, RTPCR tests and vaccination.” The chief minister asked the DMs and SPs to make containment zones—a suggestion floated by Modi in mid-April as first preference over lockdown.
The JD(U) mirrored the chief minister’s confidence. A week earlier, RCP Singh, a retired civil servant turned party president, had held a meeting with JD(U) workers at the party’s office in Patna. Singh instructed his deputies to train panchayat-level workers so that “the party’s works and our leader Nitish Kumar’s works can reach up to the Panchayat.” Singh held similar meetings over the following weeks asking JD(U) workers to popularise Kumar’s supposed stellar anti-COVID performance across Bihar. He also frequently posted local news items on social media, which favoured Kumar’s governance and congratulated him on taking great decisions to control the outbreak.
The contrast between the government’s self-advocacy and reality could not have been more apparent when the government was again pulled up by the Patna High Court on 19 April. The court observed it was still not convinced with the government’s explanation on unoccupied beds. The court invoked the provisions for violation of fundamental right to life to safeguard patients being denied their right to health. It asked the Bihar State Human Rights Commissions to make surprise inspections of CCCs, DCHCs and DCHs to keep them in check. The court also asked the commission to submit its inspection report on Nalanda Medical College and Hospital, in Patna, in the next hearing. While enquiring into the control of COVID-19 medicines on the black-market, the court found that the state did not even have a regular state drug controller for years. The court ordered the government to appoint a full-time drug controller. The court also expressed frustration over the absence of a comprehensive plan from the state government. Despite the court’s admonishment, JD(U) legislators continued advertising the supposed successful expansion of oxygen availability in the state and Kumar’s efforts to curb the pandemic.
On 21 April, the BSHRC submitted its findings in which it had reported a lack of paramedical staff at the NMCH. The government, meanwhile, submitted its action plan before the court. According to the plan, the government said the state needed 300 metric tonnes of oxygen and that it had asked the union government for supply. It also produced data of planned future generation of oxygen within the state. The plan did not explain how the government calculated the 300 MT requirement. The court asked the government if it had received requests from districts other than Patna for oxygen. The government told the court that there had been no such requests from any district magistrate. The court said, “We are unable to comprehend the critical situation of shortage of oxygen in the district of Patna,” since the government said there was no shortage in other districts. It asked the government to increase the oxygen supply to Patna immediately.
Two days later, the Patna High Court began questioning the Bihar government about the supply, distribution and use of medical oxygen in the state. On 23 April, the court once again asked the government why data showed unoccupied oxygenated beds, while news reports suggested that COVID-19 patients were being denied admission due to a lack of oxygen. The court said this clearly showed that the beds shown in government data were not oxygenated after all.
Data the government had submitted to the court stated that, based on bed occupancy, the state required only 68 MT per day, and if all its beds were filled, it would require only 170 MT. This was different from the arbitrary 300 MT requirement the state had previously mentioned. The government told the court that its total oxygen supply stood at 103 MT. If this were truly the case, then Bihar should not have had any deaths due to lack of oxygen during this period. This suggests that either the data on available oxygen was wrong, or the data on bed occupancy was wrong, or the health system was not allowing patients to access oxygenated beds despite availability. The union government was allocating 190 MT per day to Bihar. Instead of taking this entire allocation, smaller amounts were being taken. The Bihar government attorney said that the state received only 72 MT on 22 April, 60 MT on 23 April and 90 MT on 24 April.
The court ordered the health secretary to submit a report on the next hearing on why it “failed to receive/obtain full quota of oxygen, as allocated by the central government.” The government also submitted before the court that oxygen generation has started at “six out of nine medical colleges”—another falsehood that would be busted in the coming weeks in the court. The court also noticed that the government had still not published important online links about bed facilities, testing and vaccination as it had ordered on 15 April. The judges asked the government to put all the information online and also create an online grievance redressal mechanism.
On the next hearing on 27 April, the court again found that the government was still not picking up its quota of allocated oxygen. The government even justified its receipt of oxygen quota in instalments of its total allocation by saying: “the requirement of oxygen in the state is dynamic in nature and keeps on changing, depending on its actual requirement on day to day basis.” When the courts pointed to continued reports of patients lacking oxygen the Bihar government argued that, “As on 26 April, the state of Bihar was not deficient in terms of availability of medical oxygen for meeting the challenges arising out of COVID-19 in its second wave.”
The Patna High Court immediately called out the government’s lie. The judges said, “The court’s registrar general had received complaints from various hospitals including Indira Gandhi Institute of Medical Sciences [IGIMS], Patna complaining lack of oxygen for treating COVID patients” earlier. The court called the government’s claim of no shortage of oxygen “puzzling.” It ordered the government “to take all possible measures to procure its quota of oxygen.” In the 27 April hearing, the court also castigated the government for not increasing the number of dedicated COVID-19 beds since the start of the crisis and for failing to increase the number of RT-PCR laboratories.
Following the humiliation in court, Kumar chaired meetings with the High Level Committee and Crisis Management Group, both of which included only bureaucrats and politicians, on 26 April and 27 April. Once again, he instructed his bureaucrats to maintain enough supply of oxygen and medicine at any cost. Kumar also announced that the government would privately buy oxygen outside of the given quota at its own expense, if the situation required. No such purchase occurred despite continued complaints of a lack of oxygen from hospitals in Patna.
On 30 April, the court reasserted the need for the government to constitute a committee of subject experts to handle the crisis, rather than relying on bureaucrats alone. “The present spike of COVID cases, in the Court’s opinion, cannot be managed and led by the same establishment i.e the Department of Health, Government of Bihar, created to look after healthcare system in the normal situation, without the aid of a team of experts,” it observed. The court also expressed frustration over the lack of a clear action plan. “Despite our orders and observations, no blueprint has been prepared. There is a dire need of constitution of experts from different fields to perform advisory role to the government.” The court also pointed out glaring disparities in government data of oxygen consumption and the number of oxygenated beds between hospitals in Patna, particularly the Patna Medical College and Hospitals and the NMCH. Distrusting the government’s data again, the court ordered its amicus curie to inspect PMCH—which was seemingly receiving oxygen far in excess of its requirement while other hospitals lacked any—and submit a report before it.
The amicus submitted its inspection report before the court on 3 May. Again exposing the mismanagement of the Bihar government, the amicus found a huge gap between the requirement of oxygen at PMCH and the supply it was receiving. The amicus report said the hospital received twice the amount of oxygen it needed. More worryingly, it reported that hospital authorities were not accountable for either the production or distribution of medical oxygen, which were being handled by different private agencies.
“There is no mechanism to check the amount of oxygen being filled in each cylinder,” the report noted. “A mechanism to check the quantity of oxygen being supplied in each cylinder should be immediately placed.” The amicus also found that the PMCH’s oxygen plant was “not functioning”. The amicus called the government’s claim “misleading.” On 23 April, the government had claimed oxygen generation had started at six out of nine medical hospitals that were also DCHs, including PMCH.
On 4 May, the court expressed its frustration with the government’s inaction. It said, “Various orders, which we have passed in the present matter, right from the day one i.e. 15.04.2021, when it was taken up for the first time, speak for themselves.” Two days later, the court repeated all its orders—passed on 15, 17, 19, 21, 23, 27, 28, 29, 30 April and the orders from 3 and 5 May. The court even crystallised its orders for better understanding into nine categories: testing, hospitalization, human resources, oxygen supply, medicine, dissemination of information to public, performance of last rites of COVID-19 deceased, disposal of treatment waste and availability of vaccination. The court additionally demanded that Tripurari Sharan, Bihar’s chief secretary file a personal affidavit “dealing with each of the issues” and warned that he would face charges of “perjury” if he did not furnish “true, correct and verified” information to the court. In the first week of May, the number of active cases in the state soared pass the one lakh mark. On 4 May, Kumar announced a total lockdown for 11 days, which could be extended to the end of the month.
On 11 May, Sharan filed the affidavit before the court. On the next day, after studying his affidavit, the court said, “the Affidavit is conspicuously silent on the issue of (i) availability, requirement and distribution of Oxygen; and (ii) disposal of bio-medical waste generated out of all operations concerning Corona Virus” and still “we wish to engage on each of the points.” The affidavit contradicted many of the previous claims the government had made. According to the affidavit, of 1.2 lakh tests being done daily, only 27,400 were RT-PCR tests. This refuted the government’s April claim of 50 percent RT-PCR testing. In reality only about 25 percent of testing had been RT-PCR, which also suggests that the total number of active cases in the state could also have been far higher than previously reported.
On hospitalisation, the court reminded the government that, “The direction was given to increase bed capacity by 25% at DCHC by the Health Department, Government of Bihar on 07.05.2021.” The 11 May affidavit, however, simply showed the number of beds in each district, not demonstrating any clear percentage increase in the number of beds. The affidavit also revealed that of 5,566 sanctioned positions for general medical officers, only 2,893 had been functionally filled.
The Bihar government said the union allotment of medical oxygen had increased from 194 MT to 214 MT, while the state had requested an allotment of 400 MT. Despite the state’s requests for increased oxygen allotment, the affidavit showed that nearly three weeks after the court had ordered it, the Bihar government was still not picking up its full allotment. The government claimed that the absence of special cryogenic vehicles was the major impediment in procuring oxygen, promising to procure such vehicles from the Jharkhand government.
In the 12 May hearing the court specifically asked about rural areas, demanding the government furnish district wise information on bed facilities, oxygen supply, medicine availability, testing and vaccination. The government attorney told the court that it was “exceeding its jurisdiction” in demanding the information. In response the court cited census data which showed that 90 percent of Bihar’s population was rural. The government agreed to submit the information.
Rural health data is among the clearest demonstrations of how the propaganda of Kumar as a technocratic development man rings hollow on the ground. In Kumar’s saat nischay—the seven determinations that he used as an election plank—was a promise improve health facilities at the panchayat and sub division level. Released in October 2020 by JD(U), one of the seven determinations mentioned that, “facilities at primary health care centre, community health care center, sub division hospital and district hospital will be improved and expanded.” It was a promise he had made before the 2015 state elections too. Statistics from the state show that these promises never materialised. In the union ministry of family and health welfare report Rural Health Statistics 2019-20, the number of health centres and hospitals in the Bihar’s rural areas did not see any significant increase from as early as 2005, when Kumar first became chief minister. Alarmingly, the RHS data showed that in some regions the number of health facilities decreased from 2005.
The data showed that the number of sub centres, primary health centres and community health centres changed from 10,337, 1,648 and 101 respectively in 2005, to 9,112, 1,702 and 57 in 2020. Sub centres, manned by a nurse in a rural area are the backbone of the rural health system, being a first point of contact and a link to PHCs and CHCs. The data revealed that the numbers of sub centres and community health centres decreased over the last 15 years and only a minimal growth in the number of primary health centres was visible throughout that period. The data also points to how the deterioration of the health system during the second wave was not only due to the disproportionate rise in the number of patients but a systemic failure of the government over a decade.
In the 12 May hearing, the court asked a three-member committee of doctors to inspect the health facilities at the three layers of the COVID-19 treatment hierarchy. On 25 May, the committee said that the government had complied with previous court orders and that facilities had improved. By 25 May though, the state was already into third week of lockdown and cases had fallen significantly. The state’s case load had fallen to about a fourth of what it was at the start of the month. This happened only after a lockdown which the state’s leadership had previously argued vehemently against and after the 12 May appointment of a 12-member expert committee.
There was still, however, one court direction that the government did not appear to comply with, even after the positivity rate had come down to 0.1 percent. On 10 May, over 50 dead bodies of people suspected to have died of COVID-19 were seen floating in the Ganges in Buxar district. On 12 May, the court asked the district administration and the health department to file an affidavit regarding the floating dead bodies and to release district wise deaths of people who died of COVID-19. The judges mentioned several constitutional provisions such as the Registration of Births and Deaths Act 1969, the Bihar Municipal Act 2007 and the Bihar Panchayat Act 2006, all of which required state machinery to collect data of every death within 24 hours. The court said it would not excuse public representatives if they failed to report deaths under these acts. The court furthered demanded that the government also put all collected death data on a government website for the public to view.
On 17 May, the Bihar health department submitted to the court that only six people had died in Buxar district since March 2021. The district administration, however, had submitted to the Patna High Court death data from a single crematorium in Buxar, which showed a death toll of 789. The court forgave the contradiction on a promise that the government would verify its data and get back to the court. The court once again reminded the government to put the data of COVID-19 deaths online.
On 8 June, the health department revised its COVID-19 deaths data. In a press conference, the health secretary said that a total of 9,375 people had died instead of the 5,458 the government had previously claimed. The department had failed to account for 42 percent of deaths. Amrit told journalists that the data had only been wrong because lower ranked officers had failed to update it. The government, though, never put up district wise death data on its portal. Ten days later the Patna High Court observed, “the Government, be it for whatever reason, is most reluctant to put in the public domain the number of deaths which occurred in Bihar during the last one year.” It was a reluctance seemingly borne out of the disastrous mismanagement of a pandemic, by a leadership that seemed far more concerned with maintaining the Kumar’s technocratic laurels rather than admitting the complete hollowing out of Bihar’s health system over the past decade and a half.