New Delhi: The Supreme Court on Wednesday stayed Delhi high court’s contempt proceedings against the Central government over supply of medical oxygen to Delhi, alleging that distribution of available oxygen needed a pan-India approach for equitable apportioning given spiralling Covid-19 cases in the country.
The bench, however, said that it would review the requirement of 700 MT oxygen on Monday and asked the Centre to ensure supply till then. The decision came after solicitor general Tushar Mehta informed the court that per capita allocation of oxygen to Delhi, that is allocation against the number of active cases, was higher compared to similarly placed states.
The apex court also said that while Delhi HC would continue to monitor the ground situation on the management of Covid in Delhi on all aspects, from now on, the supply of oxygen to Delhi by the Centre would be outside its purview. The bench asked the Centre to inform by Thursday how it is going to maintain a steady flow of oxygen to all states. “Supply to one state (like Delhi) should not be at the cost of another state,” the bench said, adding an important caveat.
Solicitor general Mehta further alleged that the availability of oxygen was adequate to meet the demand but admitted a systemic failure in transportation logistics. “We are doing our best to meet the demand of Delhi, which as per the expert panel would be met with 415 MT of LMO but the Delhi government is continuing to increase its demand by the day, from 400 MT to now 900 MT. The supply of oxygen is rationed on an equitable basis keeping in mind the demand from other states,” he added.
A bench of Justices D Y Chandrachud and M R Shah pointed out that the present formula of oxygen requirement of states on the basis of number of ICU and non-ICU oxygen beds, along with caseload, required revisiting by experts drawn from a wider cross-section of professionals, including hospital management experts. The present mechanism was devised and monitored by Dr V K Paul of Niti Aayog, Dr Randeep Guleria of AIIMS, the director general of ICMR, and the director general of health services. It said the Centre’s efforts were not to be faulted but the court could not be oblivious to the needs of the capital and supply of 700 MT to it should be maintained.
Largely, the court said the Centre need not be held back by the requirement of floating tenders for importing oxygen to meet the demand caused by surging number of Covid patients.
“Pending finalisation of the global tender for supply of oxygen, the Centre can import on standalone basis. You can even do away with the tender process,” it said, seeking to relieve the bureaucrats of the fear of being faulted and prosecuted for not following the usual norms while making emergency purchases.
Disapproving and staying the Delhi HC initiated contempt proceedings, the bench said the Centre would ensure supplying 700 MT of oxygen to Delhi for the next four days subject to review on Monday. It also took over from Delhi High Court the judicial scrutiny of oxygen supply to Delhi, which reached 555 MT on Tuesday from a central pool availability of around 9,000 MT.
Justice Shah concurred with the SG that the issue required a pan-India approach and no state should be supplied oxygen from the allocated share of others. “However, the ground situation in Delhi, where people are running from hospital to hospital to find an oxygen bed, has to be addressed. And we have already passed an order asking the Centre to maintain supply of 700 MT of oxygen till May 10, when we will review the requirement after hearing all sides,” the bench said.
When additional secretary in home ministry Piyush Goyal explained the oxygen procurement and supply mechanism with trepidation, given the contempt sword of HC hanging overhead, the bench said, “Please be in ease of mind. You all are working round the clock. Hauling up officers for contempt does not help. Contempt is to be resorted to only when it is wilful violation of court orders. The present is a pan-India problem.”
While staying the contempt of court action against the Centre and its officers, including Sumita Dawra, the Supreme Court said, “Courts taking recourse to contempt actions is not going to resolve the problem faced by Delhi. The country is facing a serious and unprecedented humanitarian crisis. The problem can be solved by active cooperation of all stakeholders. When the Supreme Court looks at the issue, it has to look from the perspective of the entire country. But we cannot be oblivious to the needs of Delhi.”
On the present mechanism devised by the expert group for allocation of oxygen to states, the bench said, “We are not faulting the Centre or the expert group for this. It is a bona fide exercise. But in view of the experience of short supply of oxygen, the Centre could have a re-look at the mechanism and formula for allocation of oxygen, especially the linkage between ICU-non-ICU oxygen beds and their requirement of oxygen,” adding that many patients on stretchers in hospitals or getting treated at home also need medical oxygen.