Oxygen Supply: Supreme Court hears Centre's challenge to Delhi High Court contempt notice [LIVE UPDATES]

A Bench headed by Justice DY Chandrachud is hearing the matter.
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SC: We direct pending the submission by 10.30 tomorrow, centre shall place a comprehensive plan in form of tabulated chart to show how direction of 700 mt supply to Delhi be complied with. plan to indicate source of supply, provisions of transportation and other logistical needs

Justice Chandrachud: until further orders the directon given in April 30 must be met. as of now we see no reason to use contempt jurisdiction against officers but we also think an opportunity be given to centre to showcase the plan to achieve the 700 MT target for Delhi

Justice Chandrachud: We are of the view that there is no requirement to use the coercive arm of law and contempt should not be taken. We would want the Centre to file a reply.

Justice Chandrachud: second is requirement of managing the resources of oxygen so as to optimize the availability of Delhi. this will also depend on efficiency in supply chain right up to hospitals. another point is building buffer stock of oxygen

Justice Chandrachud: next is to look the current requirement of oxygen. we are inclined to entertain the submission by centre stating that an audit by an expert committee will gauge the exact demand of oxygen. next we looked at how BMC handled the spike of cases in mumbai

Justice Chandrachud: there is a consensus before us that officers of Centre, Delhi and Municipal corporation of greater Mumbai can have a meeting to adopt some modality to augment oxygen supply to delhi and replicating the administrative arrangement made in Mumbai

Justice Chandrachud: Problem has 4 dimensions. First is methodology or formula to be adopted to calculate oxygen required to be supplied to states and UTs. formula arrived at by experts is based on calculation of icu and non icu beds.

Justice Chandrachud: this court is not here to fault the centre or states, however we are of the view of the experience gained, it would be necessary for centre to look at the formula afresh

Justice Chandrachud: one aspect is formula is calculated based on beds. the demand is also based on people in need of oxygen and not occupying beds. this itself merits a rethink.

Justice Chandrachud: Mr Rahul Mehra for Delhi government has submitted that on April 28 -delhi received 431 MT, then April 29 409 MT, April 30 324 MT, May 1 422 MT, May 2 447 MT, May 3 433 MT, May 4 555 MT. This shows an increase but target of 700 MT is yet to be achieved

Justice Chandrachud: 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 facing Delhi. when country is facing a humanitarian crisis court must aim at problem solving

Justice Chandrachud: We note that Delhi HC has heard COVID cases on day to day basis. When this court looks at this its not allocation of oxygen to Delhi alone. We cannot be also oblivious to the need of oxygen facing delhi. thus on April 30 we directed 700 MT allocation to Delhi

Justice Chandrachud: 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 92,000 active case Mumbai was able to manage with 275 MT LMO through proper institutional framework

Justice Chandrachud: SG has argued that if an audit is conducted by an expert body then a scientific assessment can be made for Delhi. Thus it is urged that simply increasing supply to 700 MT will reduce supply to other states

Justice Chandrachud: We have heard Mr Goyal and has told us steps taken by centre on a proactive basis. Court has been apprised of the virtual control room which is there for India is also there separately for Delhi. Next, 140 MT imported oxygen was sent to Delhi from Mundhra

Justice Chandrachud: It has been submitted that expert group as set up by centre consisting of niti ayog member Dr VK Paul, Dr Guleria, DG ICMR, DG health services to rationalise supply of oxygen for pan India basis

Justice Chandrachud: The group suggested 50 litres oxygen per minute for ICU beds and 25 litres for non-icu beds and on the basis of this it was submitted by the group that 700 MT demand by Delhi was not as per the actual demand.

Justice Chandrachud: It has been submitted that progressively centre has attempted to increase stock of LMO in the country and that 9000 MT is available in the pool for distribution.

Justice Chandrachud: as a result of this it is submitted that availability of oxygen for Delhi which stood at 321 MT as on May 1 it is 555 MT as on May 4 and today as of 12 noon 350 MT had reached Delhi

Justice Chandrachud: order of this court on April 30 was uploaded on May 2. By order of this court dated May 2 certain specific directions were issued with regard to oxygen supply to Delhi. Paras 27, 28 and 29 of the order are extracted below for reference

Justice Chandrachud: Delhi High Court was seized off proceedings on May 1 and ASG had informed that compliance affidavit would be filed in SC showing steps taken to fulfill April 30 order directions. We had directed supply of 700 MT

Justice Chandrachud: HC said as per SC order 700 MT LMO had to be supplied to Delhi as against which 440 MT was supplied. Aggrieved by HC order of contempt proceedings centre is before us. SG says it accepts the obligation under April 30 order which mandates 700 MT supply

SG Interrupts

SG: our application was in regard to Delhi and other states cannot demand that tankers are only our responsibility..

Justice Chandrachud: These proceedings have arisen from two orders of the division bench Delhi High Court order dated May 1 and May 4. By the first order High Court directed Centre to ensure Delhi receives allocated supply of 490 MT by today and whatever means.

Justice Chandrachud: Centre was directed to allocate tankers so that allocation be fulfilled. High Court directed that if order not met then officials remain present....

Justice Chandrachud: Brother Shah is giving serious threats to me that he will leave me tomorrow to take care of his 90 year old parents

Justice Shah: my first priority is my nation. i can stay here for the vacations too.

Senior Advocate Meenakshi Arora: Delhi needs to have stock piling of Oxygen. Today Delhi has issues. Next Bombay, Karnataka has issues. then supply to Delhi may be impacted. so stock piling is important for Delhi to have buffer stock

Justice Chandrachud: We will dictate a short order and you can come back at 4 or 5 pm. you tell us what will you do now and tomorrow and how supply will be met.

Justice Shah: Regarding buffer stock its only when supply and procurement is met. now daily demand is only not met

Justice Shah: You also have to tell us about the tank supply. some study be there on supply, demand and procurement. for supply some other states may be deprived.

SG: That is why this issue needs to be decided on a pan India basis

Justice Chandrachud: Now you have made an oxygen per bed formula which is not scientific. we will try and extrapolate BMC model for delhi and third is actual procurement for Delhi. So 700 MT for delhi will take care of the humanitarian crisis.

Justice Chandrachud: 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

Solicitor GeneraI: I concede that bed wise allocation figure cannot be static. Now the state has limited quantity of oxygen. Suppose a state needs 1200 MT but we say that need is 700 MT and we provide 800 MT to create a buffer. all this is on real-time basis. it is being done

SG: Would i be asking too much if experts look into this?

Justice Chandrachud: what we see here is computing methodology for a state or UT, next is plan resources to procure it for the state and distribute and next is the real demand of a state.

Justice Shah: As a common man requirement cannot be static and it will fluctuate depending on patients and hospitals. it can't be based on 1,000 beds etc. we are not concerned with arithmetical calculation.

Justice Shah: It must reach hospitals and common people. People are dying to lack of oxygen. when will this exercise be done?

SG: A particular quantity is ordered and not reflected on the ground. Now delhi needs 700 and some days after it needs 900 MT. There is a possibility we are wrong, or Mehra is wrong or we both are partially wrong or may be there is a systemic failure at some end

SG: Would it not be proper to have an audit by an independent body or experts like say Dr. Guleria of AIIMS or experts from private, officers from state and centre and let them say if there is a systemic failure and if it's our fault or not

SG: But this will assist to know whats lacking in the system and experts can do

Justice Shah: Yes it cannot be restricted only to beds. This is not the time to find fault. we have to find a solutionso that the lives of citizens can be saved

SG: We will use all resources to procure 700 MT.

Justice Chandrachud: Lawyers are crying, they are requesting us to step in. You know private citizens well as our friendships are limited. we know what is happening with 500 MT

Venugopal: there are thousands and thousands outside hospitals

Justice Chandrachud: At an institutional level we cannot agree since we said 700 and it has to be met. we are answerable to citizens

Solicitor General: We are not static to tender and we are on personal negotiations

Justice Chandrachud: that's why we issued these directions under Article 142

SG: it is my case that if Delhi gets 500 MT they will be able to manage.

Justice Chandrachud: Can't we have a steady supply of imports in India till the domestic system is beefed up? it's from Abu Dhabi or Dubai?

Goyal: it was from Dubai. due to shortage of container many who want to supply are not able to send it

Justice Chandrachud: we had authorised the Centre to take care of the additional buffer of oxygen

Justice Shah: There is a provision in the Disaster Management Act there is a power to waive off tenders etc

Goyal: When Delhi High Court asked us to handle it on April 23 then apart from the national virtual control room we created a special virtual room for only Delhi. Supply has really moved on after this. Now supply is coming from Gujarat

Justice Chandrachud: how is it coming?

Goyal: it is coming by train, but since there was some issues with train, it is coming by road

Justice Chandrachud: India made?

Goyal: it was imported and transported from Mundhra port

Piyush Goyal: One of the major production plants was shut down to augment the supply of medical oxygen plant. But on May 1st we achieved a figure of 420 MT oxygen. Today morning 140 MT oxygen was sent off from Mundhra to Delhi.

Goyal: Shortage of container is the main crunch. Stocks are existing in eastern part like Jamshedpur etc. but due to less containers, the supply is not coming in. Now Odisha is also sending supply via the train. Yesterday we brought in 555 MT oxygen

Justice Chandrachud: What is the best way to achieve say another 150 MT today and 350 MT already is there by 12 pm

Senior Adv Krishan Venugopal: patients are dying as hospitals are turning away patients

Justice Chandrachud: we know this. let us hear Mr Goyal

Justice Chandrachud: Mr Goyal our endeavour is that we ordered 700 MT. Solicitor General said demand is less. But we are on what was done by BMC and see if it can be adopted in Delhi. We are answerable to Delhi citizens, which is the best way you can ensure 700 MT can be achieved.

Solicitor General: There are two supply points, one is Eastern and one is Western which is closer to Delhi. We have mapped in such a way that states are able to access from nearby corridor. Trains are increasing everyday

Piyush Goyal, Additional Secretary appears.

Justice Chandrachud: The idea here is not to haul up officers for contempt and that will not bring oxygen

Justice Shah: Contempt does not help

Senior Advocate Rahul Mehra: Reached means Border. Lot of tankers are in transit. We only account for midnight to midnight. The previous three days also pursuant to your order situation has improved and yesterday it improved quite a bit.

Justice Chandrachud: Till noon, 350MT has reached so it can reach 700 MT even today. Mr. Mehta, please tell us what will be the total as per today.

Justice Chandrachud: you tell us by evening today how much oxygen will be enhanced for Delhi. What are the figures for today

ASG Aishwarya Bhati: till 12 noon, 351 MT of oxygen has reached Delhi

Justice Chandrachud: This was exactly our order on buffer point of oxygen. If Mumbai can have plants all across such state why can't Delhi. we need to have a holding operation and we may need more oxygen but lives will be saved

Justice Chandrachud: If the health secretary of Delhi Govt and Centre has a meeting with Iqbal Singh Chahal of Mumbai Municipal Corporation and draw from experience and tell us how you plan to create storage tanks and install it for Delhi.

Justice Chandrachud: This exercise can be done from today and Monday. please tell us the modalities to follow to reach that figure of 700 MT. The modality can be based on the Bombay model which has been successful in a large metropolis

Solicitor General: The total oxygen consumption was less in Mumbai than in Delhi and I am not undermining that Delhi may need more oxygen. We had requested Mumbai to send their model so that we can implement this for other states. It is the case of Delhi that they need 700 MT

Solicitor General: Delhi has now demanded 970 MT

Justice Chandrachud: What we see in media, Bombay Municipal Corporation has done some remarkable work and not disrespecting Delhi but we can maybe see what was done by BMC. Maharashtra is also an oxygen supply state.

Justice Chandrachud: 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.

Justice Chandrachud: Maybe the supplier in Dehradun is allocated to Delhi, Haryana. May be he is not able to supply full in Delhi and there needs to be real-time updates. If you can showcase the time of arrival, the amount of oxygen, please put it up upfront and publicize. So the citizens running from pillar to post can know what is the status. There needs to be an upfront display of where oxygen is arriving from in Delhi. All this in virtual control room

Justice Chandrachud: Supply of tankers need to be rationalised today. As per your formula need may be 450 MT for Delhi and we may consider it on 10th, and we will hear states on how to rationalise demand per bed

Justice Chandrachud: We need to do this scientifically. I need to discuss with my brother judges. One way is to have a broad-based expert committee and solve this pan India. This will be based on states reply too.

Justice Chandrachud: You need to tell us that after May 2 order, now we are on 5th may, tell us how much you allocated to Delhi on 3rd, 4th and 5th

SG: 3rd was 483MT 4th was 585MT and today's figure is yet to be updated

Senior Advocate Rahul Mehra: there is a double computing of 30 MT and thus the supply was 555 MT for 4th.

Justice Chandrachud: what about today? we need to know actually capacity of the supplier allocated to Delhi. We need to see if supplier is in a position to supply

Justice Chandrachud: But it depends on the state-wise pandemic scenario, Odisha may be different than Maharashtra. different states are peaking at different time, so we cannot have a general assessment

Justice Chandrachud: We are not sure if the calculation is scientific. We need to know the basis of computing needs for every state is scientific and not based on rough calculation. This we can look at 10th May. the state of Delhi is critical.

SG: For ICU beds 415 MT oxygen is needed

Justice Chandrachud: 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.

Justice Chandrachud: But it depends on state-wise pandemic scenario, Odisha may be different than Maharashtra. Different states are peaking at different time, so we cannot have a general assessment

Solicitor General Tushar Mehta: 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 a calculation sheet for states.

As per centre 8136 of 16,000 non icu beds needs oxygen. On the basis of this 152 MT oxygen is needed

SG Tushar Mehta: Please be patient with me. We found out a formula applicable to the entire country.

Justice Chandrachud: We are patient when we enter oath of office but lose it over decades of judgeship

Justice Shah: We are worried about "patients"

SG: In a spirit of coordination, a pan-Indian solution is needed. We need to have a module or mechanism to come to a formula which can be implemented in all states. We have a situation of the pandemic. First Question - what was oxygen available with India.

SG: First was 5,000 MT including industrial oxygen. Medical oxygen requirement was minimal before April. Now we have been able to augment it to reach by several philanthropists etc and now 9,000 MT of oxygen for medical use is available.

SG: the question was how to divide this among states and it cannot be on sweet will of the centre or states.

Justice Shah: If you get it from other states there will be a shortage in those states.

Justice Chandrachud: So how much was allocated. 590 was allocated so what is the status?

Solicitor General: Take this as a background. officers of state are working overnight shoulder to shoulder with centre

Justice Chandrachud: Ultimately putting officers in jail or hauling officers for contempt will not bring oxygen. please tell us steps to solve this

Justice Shah: No one can dispute that some have died to oxygen shortage and that it is a national emergency. What is the plan?

SG: Thus there is no question of non-compliance

Justice Chandrachud: Your ASG argues that Supreme Court did not say 700 MT. That is why there is this crossfire now. After the Supreme Court order now effort has to be to comply

SG: We are in the process of procuring 700 MT for Delhi. Yesterday we reached 585 MT. Allotted was 590 MT.

Justice Shah: 700 or 590 is for what duration

SG Mehta: 24 hours

Solicitor General Tushar Mehta: Apologies for troubling you last minute. I will give a brief background.

SG: I must point out it is not adversarial. it's not centre vs Delhi NCT. We owe a responsibility to the citizens.

Justices DY Chandrachud and MR Shah to hear the case. Bench assembles

A Supreme Court special bench headed by Justice DY Chandrachud is to hear the Centre's appeal against the Delhi High Court order mulling contempt proceedings against the State and Central government officials as oxygen was not supplied in line with the directions of the Court.

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