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In an attempt to remind the State Government & Central Govt of its obligation to make best possible efforts to provide medical treatment in view of right to health which is an integral part of Art 21, the Division bench of Chief Justice Abhay Oka & Justice Aravind Kumar has directed the Central Govt to increase the gap of supplying allocation of oxygen upto 1200MT/ day. 

“Even coming to the requirement of state, is 1162 MT. As we have observed earlier it has to be ideally more than 1792 MT per day. In circumstances we have no direction but to issue mandatory direction to again consider the demand made on April 30.”, the Court observed.

Taking into account the increase in the reported deaths due to lack of oxygen, the Court has directed the State to submit its projections for the requirement of oxygen for a week to the Central Govt & Standing Counsel of Government of India to communicate the order immediately to the Government of India. 

These directions have been passed in light of the rise in active cases in the State (currently 4,63,000) & the requirement of an estimated 1792 MT of oxygen on the footing of active cases reaching 3,95,000 as on May 5, 2021.

In order dated April 29, 2021, the Bench took note of the submissions of the Ld Government Advocate on the aspect that the production of oxygen exceeded the total requirements of the States & also on the supply of 802 MT of oxygen against the projected demand of 1471 MT. The Bench had therefore directed the Central Govt to take an immediate decision on the requisition which may be submitted by the State Government. Further the Court had also directed the Central Govt to take note of the ever rising figures of positive cases in the city.

The cap on supply of oxygen to the state till April 30 was 802 MT which was marginally increased to 865 from May 1. The Ld ASG Shri MB Nargund submitted that the same would be increased by 100 more. 

The Court has also expressed its concerns for allocation of oxygen to the State of Karnataka from far away places as per the plan of allocation of oxygen supply by the Central Govt. 

“The main difficulty that has been expressed by AG & Add'l AG that quota of allocation, 30 MT was to be taken from Steel Plant in Visakhapatnam & 60 MT from a plant in West Bengal & 20 MT from a plant in Kerala. It has been pointed out that if quota is procured from far away places, the jumbo jet airplane carries 4 tankers to respective places. It may take a minimum 48 hours to reach oxygen in the state. That is the reason why the state could not occupy the allocated quota.”, the Court has further added. 

On the aspect of supply of Remdesivir to the State , the Bench observed that the supply of the drug was nearly 1/3rd of the requirement & thereafter observed that, “We expect the Central Govt to consider allowing the State Govt to fully manufacture the oxygen in the State itself”. 

The Bench took note of the aspect of creation of buffer stock in the order dated April 30, 2021 passed by the Hon’ble Supreme Court of India in suo moto plea related to management of CoVID crisis PAN India as per which the Court directed creation of buffer emergency stock of oxygen which could be used to avoid loss of human lives in the event of disruption in supply chain of one or more hospitals in an area for emergency reason. By laying emphasis on this aspect the Court observed that as of today, the government of India did not offer any reason for its failure to create buffer stock for the state of Karnataka. 

The Court further added that, “There are some districts in the states which do not have bottling plants & therefore cylinders have to be arranged from the neighbouring district. The scenario which emerges is that not only that buffer stock has been created but the minimum requirement of oxygen has also not been fulfilled. Bangalore is reporting the highest number of cases in the country.”

Considering the reporting of many cases, the Bench emphasised on the need to have a helpline in this regard & therefore directed the State Govt to create a special helpline & publicise it widely so that it raises a large section of people. The State Govt was further directed to come up with the criteria for increase in the number of beds in the hospitals. 

In relation to the incident of death of 24 people allegedly due to shortage of oxygen in a hospital in Chamarajanagar, the Bench while expressing its displeasure upon constitution of an inquiry under the Commission of Inquiry Act, 1952, the Bench directed the Chief Secretary to seize all the records in the offices of Deputy Commissioners of Chamarajanagar & Mysore Districts & Chamarajanagar district hospital on oxygen supply and relevant correspondences among the authorities in the two districts. 

“Let the report be submitted by this Committee next Monday. Officers would render help to the said committee as the object of the committee would be fact finding & the report would be helpful to the State govt to ensure that such incidents do not occur again.”, the Court further observed.