Formation Of PAN India Audit Committee, Future Projections, Creation of Buffer Stock & Deployment of Healthcare Workers : Supreme Court continued hearing Centre’s Plea Against Contempt Order

Supreme Court continued hearing appeal against the Delhi High Court order of initiating Contempt Action against Centre for non-compliance with its order dated May 5, 2021.

Yesterday, the bench had stayed the order observing that, “Hauling up Government Officials will not bring Oxygen to the State” and directed the Centre to apprise on methodology of allocation, supply sources and transportation.

A Division Bench of Justice DY Chandrachud and Justice MR Shah, while acknowledging the submissions on formation of an Audit Committee to monitor PAN India allocation and equitable distribution of Oxygen, reiterated that the formula created by the Centre (oxygen per bed and active cases) needs reconsideration.            

The bench also flagged issues such as, engaging fresh medical graduates and nurses with some incentives, demands of rural India linking it with access to technology, creation of buffer stock, diversion of oxygen from other States to Delhi and future projections and preparedness.

Justice Chandrachud: I was reading about the third surge in India… one critical aspect that comes out is that, it will affect children the most, and children are resilient… A Child cannot go to the hospital himself, so every time he has to be taken, the parents will go along… Now, we have to ensure that the vaccination of that age group which is taking their young children to COVID facility is achieved by the third wave surges.

Justice Chandrachud (to SGI Mr. Mehta): Your formula does not take care of home care individuals. Your formula is a gross underestimate of actual requirements. I see a point in the audit but this needs to be looked at from a national perspective.

Justice Shah (to SGI Mr. Mehta): At present we are only considering Delhi, but a major part of the Country also includes Rural Areas. What about the rural areas where people are suffering the most? We have to consider the future requirements also, how would you plan it?

Learned Amicus and Senior Counsel Mr. Jaideep Gupta made a brief submission stating that, none of the affidavits filed with the Court takes into account the future requirements; “Problem with all the affidavit filed here is that they talk about the present condition and not about the projections. If you do not project, you will always be gasping in darkness.” It was also added that until a new formula is devised by the Government, order of the Top Court dated April 30^th, allocating 700 MT should continue as once an order of audit is passed, there will be a debate over the operability of the said order.

Learned Amicus and Senior Counsel Ms. Meenakshi Arora made submission on (1) forecasting requirements by including epidemiologists and virologists (2) creating buffer stocks (3) including private hospitals/doctors/young staff in the committee proposed.

Submissions were made by Learned Solicitor General, Ms. Dawra, Additional Secretary DPIIT and Senior Advocate Rahul Mehra for GNCTD.

Learned SGI, Mr. Mehta informed the bench about the entire mechanism of allocation and transportation, followed by Ms. Dawra who made precise submissions on delivery of Oxygen to Delhi from surrounding plants and stringency in availability of containers, both, within and Internationally. It was argued by the Solicitor General that, there is a possibility of Systemic failure on either of the ends (Centre or the NCT of Delhi) and in order to remedy the same, there should be a Committee to look into certain aspects, namely;

1. Actual requirement of oxygen in GNCTD to cater to each and every active case needing oxygen.
2. Internal distribution of Oxygen to hospitals, nursing homes, special COVID care Centres and refillers.
3. Problems faced by the residents of Delhi in getting oxygen is due to less supply or lack of proper internal distribution channel within GNCTD
4. Suggestions to streamline the system to eliminate the problems of residents

It was also added by the Learned Solicitor that, many of the hospitals were not operating as COVID facility earlier, and therefore they lack storage capacity; “The problem is this; most of the hospitals were not COVID hospitals, they had 15-20 beds doing something else. Because of their original work, they do not have storage capacity, they store in small cylinders which only have a capacity of retaining for 12 hours.”

Learned Senior Advocate, Mr. Rahul Mehra requested the Court to place a detailed affidavit including all steps taken by the State Government to facilitate and cooperate with the Central Government. Emphasis was laid on the fact that allocation to other States were more than their actual demand and that the Centre was still in contempt with respect to the Delhi Court’s Order dated May 5, 2021. It was also added by the learned Senior Counsel that if an audit is required at all, it is for the procurement of tankers by the Central Government; “If at all an audit is to be made, it has to be on tankers, on why it has not been taken over by the CG yet.”

Furthermore, Senior Counsel submitted the allocation formula of the Central Government must be relooked.

With respect to the initiatives taken up by the State Government, Mr Mehra submitted;

Senior Advocate Mehra: We have developed a portal for individuals in home care, for refilling of Oxygen Cylinders, by registering on our app. We are taking help of IIT, DRDO, we have written to the Raksha Mantri. Everything a State can do, we have been doing it. We are a responsible State, we may be given some time to place everything on record.

Following are the points forwarded by the NCT of Delhi that may be considered by the Audit Committee so proposed;

1. Correct Formula for assessment of genuine requirement of each State for LMO, for all residents in the State and not just the individuals being treated in the hospitals.
2. Basis, Criteria and rationale adopted for allocation to each State.
3. Actual requirement for supply of LMO to States on a PAN India basis taking into account the number of positive cases.
4. Infrastructural and logistical arrangements available in terms of cryogenic tankers, containers to facilitate LMOs to several States and hospitals & medical establishments within States.
5. Identify and address bottlenecks in supply of LMOs to the States and within States.

In the counter submission by the Learned Solicitor, it was clarified;

SGI, Mr. Mehta: Unfortunately, despite saying that I am not making it adversarial, my friend has used this platform to make this issue Centre v. State and State v. State. I have answers on every issue but it would be very petty of me to respond to arguments that are advanced.

SGI, Mr. Mehta: It is not my case to Audit allocation of Delhi. I have been repeatedly saying that it is a systemic failure. It is nothing against the State. People are dying and that is our concern as well. My case is to enforce a system, to check real time requirements and equitable distribution among all States. I am disputing everything he says, but it will be very small on my part to respond. My ultimate aim is that the sufferer is not suffering. We all are there for that.

The bench concluded by mentioning of an SLP by Mr. Mehta, filed against the Karnataka High Court order.