Supreme Court stays HC's contempt proceedings against Centre, seeks report on supply of 700 MT oxygen to Delhi

The Bench asks Delhi to learn from Mumbai how it managed oxygen supply

Updated - November 18, 2021 04:19 pm IST

Published - May 05, 2021 12:42 pm IST - New Delhi

A patient in an ambulance outside the COVID-19 hospital (HIMS) in Hassan. The hospital staff maintain that no beds are available.

A patient in an ambulance outside the COVID-19 hospital (HIMS) in Hassan. The hospital staff maintain that no beds are available.

The Supreme Court on May 5 ordered the Centre to burn the midnight oil and prepare a "comprehensive plan" for the supply of 700 MT of life-saving oxygen to Delhi on a daily basis.

The plan, which has to be handed over to the court in the form of a tabulated chart at 10.30 a.m. on May 6 should identify the sources of supply of oxygen to Delhi; the provisions for transport and logistical arrangements, including distribution points for oxygen.

A Special Bench of Justices D.Y. Chandrachud and M.R. Shah, in a special sitting, said the lack of oxygen is causing "tremendous anxiety" in the National Capital.

The court orally urged Solicitor General Tushar Mehta, for the Centre to comply with the April 30 order the Supreme Court and ensure that Delhi received 700 MT oxygen by May 5 midnight. According to the Centre, Delhi has received 351 MT of oxygen till noon.

The Bench however stayed a Delhi High Court order initiating contempt action against the Centre's officers for the continued short supply of oxygen to Delhi which is battling a devastating second wave of COVID.

"Hauling officers up for contempt will not bring oxygen to Delhi," Justice Chandrachud reasoned.

"Contempt is when something is done absolutely willfully... This is a national crisis, nobody can dispute that the Centre has not done anything... But still what is your plan for distribution and assessment of requirement of oxygen?" Justice Shah asked Mr. Mehta.

The court asked the Centre and the Delhi government officials to get the help of Maharashtra government and consult with Brihan Mumbai Municipal Corporation, especially its Commissioner Iqbal Singh Chahal. The court asked the Centre to take a leaf from Maharashtra's successful management of oxygen supply, creation of storage tanks, etc. when the active caseload was up to 92,000 in Mumbai.

Mr. Mehta agreed there was nothing wrong for the Centre to consult the municipal body.

"Yes... these shared experiences can be put to use in Delhi. The administrative experiences of Mumbai can be replicated in Delhi to the extent feasible...If densely populated Mumbai could install storage tanks, it can certainly be done in Delhi," Justice Chandrachud replied.

The court asked why the Centre and Delhi government did not devise a mechanism to tell people "upfront and on a transparent basis that there will be so much allocation of oxygen today, so much distribution, this is the availability of tankers and this is when the oxygen train will arrive... Please publicise. Let people know".

Justice Chandrachud said the "current situation of pandemic in Delhi was critical... Tell us about the logistics so that we can help... How much is being allocated and supplied in real time? Lack of oxygen is causing tremendous anxiety. People are unable to get cylinders..."

"We have stopped industrial use of oxygen, philanthropists have come forward. There is 9,000 MT of liquid medical oxygen for use now... Question is how to divide this among States?" Mr. Mehta submitted.

Going on, Mr. Mehta said the Centre had formed an expert panel of Dr. V.K. Paul, Member of Niti Aayog; Dr. Randeep Guleria, AIIMS Director; D-G ICMR and DGHS for computing oxygen requirement on a pan Indian basis.

But the court found the "formula" suggested by this expert panel to determine the allocation of oxygen to States quite "unscientific".

The court called the expert panel's methodology a "rough-and-ready formula" by which oxygen allocation to States is solely made on the basis of the number of ICU and non-ICU beds. The court called it an 'oxygen-for-bed' formula.

"The rough-and-ready methodology or formula of oxygen-for-bed does not work. The situation is dynamic and evolving... Your formula may be bonafide, but you need to do it more scientifically. Allocation of oxygen according to the number of ICU and non-ICU beds is not sound. There are people without beds in need of oxygen... Besides, different States will peak at different point of time. Resources have to be diverted... There should be a broad-based expert committee on allocation of oxygen to States," Justice Chandrachud said, asking the lawyers to come up with names for such a panel.

The Bench said there were "four dimensions" to the oxygen supply and distribution problem in India.

One, a formula to compute the requirement of oxygen to different States. "It is necessary to look at this issue afresh," the court said.

Two, the optimal use of resources. "Resources like oxygen need to be managed and used optimally. Mumbai managed with 275 MT of liquid medical oxygen even when the active caseload was 92000. So handling and storage aspects of oxygen in Delhi need to be taken care of," Justice Chandrachud pointed out.

Three, there is a need to create a buffer-stock for Delhi.

Additional Secretary, MHA, Piyush Goyal, said a quantity of 140 MT of oxygen has been imported and has arrived at Delhi from Mundra.

To this, Justice Chandrachud asked him whether a steady import stream of oxygen could be ensured till the domestic supply was settled and there were buffer stocks.

Four, modalities have to be put in place in Delhi to optimise the use and storage of oxygen from May 5 to May 10, the next date of hearing. On this, the court asked the Delhi and Central officials to consult with the Maharashtra government without delay and "derive some learning about the modalities to be followed".

Solicitor General Tushar Mehta for the Centre called for a "proper audit" by an independent committee comprising of officers from GNCTD, Centre, experts from hospitals in Delhi, private hospitals on oxygen allocation, supply and distribution.

He said simply increasing allocation of oxygen to 700 MT may affect the supply to other parts of the country. He said there were reports that oxygen demand in Delhi may increase to 970 MT in the coming days. So, a proper audit was required.

During the hearing, senior advocate Rahul Mehra, appearing for Delhi, said there has been "substantial increase in oxygen allocation" in the National Capital.

Mr. Mehra said that from midnight to midnight, Delhi had got 431.26 MT of oxygen on April 28; the National Capital got 409.38 MT on April 29; Delhi received 324.63 MT on April 30; on May 1 it was 422.04 MT; May 2 it was 447.594 MT; May 3 it was 433.09 MT; and on May 4 the oxygen received was 555.01 MT.

"But people are dying because of want of oxygen, how to get it to them?" Justice Shah asked.

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