Hauling up government officers for contempt of court will not solve the Oxygen crisis faced by Delhi, the Supreme Court observed on Wednesday, staying the operation of a Delhi High Court order which had issued show cause notice for contempt to the Central government for its failure to meet Oxygen supply benchmark.
The Supreme Court said that there is no reason for the time being to exercise contempt of court jurisdiction against government officers but asked the Central government to submit a tabulated plan to meet the 700 MT Oxygen target by 10.30 am on Thursday.
"We stay the operation of the contempt notice which has been issued by the High Court of Delhi on 4 May 2021. However, we clarify, as we did in terms of our previous order, that the stay which has been granted of the contempt proceedings shall not operate as an order of restraint on the High Court continuing to monitor the issues which have arisen before it.," the top court ordered.
The court has noted that contempt notice by the High Court was an "expression of anguish."
"The High Court of Delhi has been engaging with the situation virtually on a day to day basis and has been considering diverse aspects of the matter. The contempt notice is an expression of its anguish. The issue of the availability of oxygen for NCT of Delhi has to be resolved bearing in mind the availability of oxygen in the country so that suitable arrangements are made for allocation, transportation from the point of supply and distribution within the city," reads the order.
The Court was hearing an appeal filed by the Central government against the show cause notice for contempt issued against its officers by the Delhi High Court
The matter was heard by a Bench of Justices DY Chandrachud and MR Shah after Solicitor General Tushar Mehta mentioned the matter before Chief Justice of India NV Ramana this morning.
"Ultimately putting officers in jail or hauling officers for contempt will not bring oxygen. Please tell us steps to solve this," Justice Chandrachud remarked. during the hearing.
The Court proceeded to record the same in its order.
"At the outset, it needs to be clarified that why this Court is hearing this plea is because exercising powers under contempt jurisdiction will not solve the problem faced by Delhi. When country is facing a humanitarian crisis, court must aim at problem solving," the order said.
As of now, we see no reason to use contempt jurisdiction against officers but we also think an opportunity should be given to the Centre to showcase the plan to achieve the 700 MT target for Delhi, the Court said.
"As a good faith measure, we allow centre to submit a plan by 10.30 am tomorrow," it added.
During the hearing, the Court cited the success of Brihanmumbai Municipal Corporation (BMC) in handling the pandemic situation in Mumbai, and asked the Centre to hold a meeting with municipal commissioner Iqbal Singh Chahal to adopt similar measures in Delhi.
"Until this exercise is complete, Delhi must have a hoarding of 700 MT. You can tell us by 3 pm how much will you go up to till midnight today. We need to inch as close a possible to 700 MT and not be at 550 MT as stated," the Court further ordered.
Solicitor General (SG) Tushar Mehta, representing the Central government, maintained that the case is not an adversarial litigation.
"I must point out it is not adversarial. it's not Centre vs Delhi NCT. We owe a responsibility to the citizens."
SG Mehta went on to inform the Bench that the Centre was in the process of providing 700 metric tonne (MT) of oxygen to Delhi, and that yesterday, it had provided 585 MT. Thus, there is no non-compliance with the Supreme Court and Delhi High Court orders, he said.
At this point, Justice Chandrachud pointed out that Additional Solicitor General Chetan Sharma had contended before the Delhi High Court that the Centre did not commit to providing 700 MT to Delhi.
"In spirit of coordination, a pan-India solution is needed. We need to have a module or mechanism to come to a formula which can be implemented in all states," SG Mehta responded.
The law officer said that the Centre has to come up with a formula for oxygen allocation to the whole country.
"On-ground medical facilities available will be 505 MT for Delhi and a team has stated that there is no justification for 700 MT. This is based on calculation sheet for states. As per Centre, 8,136 of 16,000 non-ICU beds need oxygen," he added.
Justice Chandrachud responded,
"We are not debunking the formula. Entire formula is based on assumption. First is 100 percent ICU beds need oxygen and 50 percent non-ICU beds need oxygen. But it depends on state-wise pandemic scenario. Odisha may be different than Maharashtra. Different states are peaking at different times, so we cannot have a general assessment."
This court is not here to fault the Centre or States, the Bench added. However, we are of the view of the experience gained, it would be necessary for centre to look at the formula for assessing afresh, it said.
The Court also asked for the basis on which the Centre had drawn up the assessments of oxygen requirement for each State.
Justice Chandrachud also queried about the daily supply of oxygen to Delhi and called for an "upfront display" of where oxygen was coming from.
"Citizens running from pillar to post can know what is the status. Supply of tankers need to be rationalised today," the Court ordered.
"Please tell us from today and Monday what modalities will be put in place to secure 700 MT oxygen for Delhi. Rest we can re look at on 10th May," said Justice Chandrachud.
The Court then asked Additional Secretary of the Union Ministry of Home Affairs Piyush Goyal - who was directed to appear before the Delhi High Court - as to how 700 MT could be provided to Delhi.
Goyal replied that one of the major oxygen production plants was shut down, and that shortage of containers was a major issue.
Justice Chandrachud then asked,
"Cant we have a steady supply of imports into India till the domestic system is beefed up?"
SG Mehta said at this point that Delhi would be able to manage with 500 MT of oxygen.
However, the Court retorted,
"At an institutional level, we cannot agree since we said 700 MT...we are answerable to citizens."
"A particular quantity is ordered and not reflected on ground. Now, Delhi needs 700 and some days after it needs 900 MT. There is a possibility we are wrong, or [Senior Advocate Rahul] Mehra is wrong, or we both are partially wrong, or may be there is a systemic failure at some end," Mehta submitted.
Justice Shah then said,
"As common man requirement cannot be static and it will fluctuate depending on patients and hospitals. It cant be based on 1,000 beds etc. we are not concerned with arithmetical calculation...it must reach hospitals and common people. People are dying to lack of oxygen. When will this exercise be done?"
Eventually the Court passed an order recording the details of Oxygen supply to Delhi as informed by the counsel.
"It has been submitted that progressively the Central government has attempted to increase stock of LMO in the country and that 9000 MT is available in the pool for distribution," the Court recorded in its order.
The Court also noted Solicitor General's submission that if an audit is conducted by expert body, then a scientific assessment can be made for Delhi with regard to the requirements for the national capital,
"It has been argued that when Mumbai had an active caseload of 92,000 on April 10 2021, the oxygen consumption was 275 MT. Hence it has been urged that even with 92000 active case Mumbai was able to managed with 275 MT LMO through proper institutional framework. Thus it is urged that simply increasing supply to 700 MT will reduce supply to other states," the order noted.
The Court further said that it is inclined to entertain the submission by Central government that an audit by an expert committee will gauge the exact demand of oxygen.
On Tuesday, the Delhi High Court had directed the Central government to show cause as to why contempt of court should not be initiated for non-compliance of orders passed with respect to the supply of oxygen to the national capital.
A Bench of Justices Vipin Sanghi and Rekha Palli of High Court ordered,
"We direct Central government to show cause why contempt action should not be taken for non-compliance of our order of May 1 and Supreme Court order..."
The High Court also directed the presence of Central government officers Piyush Goyal and Sumita Dawra on the next date of hearing.