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Supreme Court took up an urgent hearing against the Delhi High Court order of initiating Contempt Action against the Central Government.

A Division Bench of Justice Chandrachud and Justice MR Shah, while staying the operation of contempt order passed by the Delhi High Court, dated May 5, 2021, categorically said, “Putting officers in jail or filing action of contempt against them would not bring oxygen to the State…We are facing a National crisis; hauling up the government officials will not solve the problem…Efforts must be made to achieve an amicable solution by active participation of all stakeholders.”

Three distinct aspects pointed out by the bench in today’s hearing was,

(1) Methodology for computing the requirement of a State/UT (oxygen per bed and active cases formula);

(2) Planning and management of resources;

(3) Distribution and Procurement of oxygen.

The order dictated by the Court directs the Central Government to place a chart reflecting mechanism of allocating 700MT of liquid oxygen to Delhi, enumerating sources of supply, provision of transport and other logistical arrangement necessary to fulfil the requirement of the State.

Unanimity was formed on devising a solution as per the Bombay model, which was also relied by the Centre on its Affidavit.

At the outset, Learned SGI clarified,

“It is not an adversarial litigation, It is not Centre v. NCT of Delhi, It cannot be. There are certain issues which needs to be addressed…Officers are working shoulder to shoulder. We need to have a module or mechanism. The matter is being heard in 3 or 4 High Courts.”

Justice Shah: No one can dispute shortage of Oxygen. No one can deny that people are dying because of Oxygen shortage. No one is denying that Central Government is not working. But what is your plan? You would get oxygen from another State but that would be unfair too. What are your plans with respect to distribution and transportation?

Justice Chandrachud: Entire formula (of allocation) is based on an assumption. It must not be the same for every State. Different States are peaking at different point in time. What is happening in Odisha may be very different from the stage of pandemic in Maharashtra. You cannot have a general assessment for entire country.

Justice Chandrachud: Capacity of supplier must be evaluated on a Real Time Basis.

Justice Chandrachud: Broad base Expert Committee to examine allocation.

Justice Chandrachud: What we need to do now is, between today and Monday, to manage and structure the demands of Delhi, what are the modalities you follow to reach this figure of 700MT. I take your point also Mr. Solicitor that 700 MT is on a larger side.

The bench also suggested to devise a mechanism for creating a buffer stock.

Amicus Curiae, Ms Meenakshi Arora also made a brief submission on Central Government procuring and holding buffer stock which may put to use as per the requirements of several States.

Counsel for GNCTD, Mr. Rahul Mehra, apprised the bench that the supply has quantatively increased in the NCT of Delhi. Placing statistics, learned Senior Advocate Mr. Mehra submitted,

On May 1: 422.04, May 2: 447.49, May 3: 433.09, May 4: 559.01 (midnight to midnight basis), and as of today 351.56 MT has been received by noon.

SGI: There are 2 supply points. One is eastern corridor & western corridor. Western corridor is near to Delhi. We have tried to ensure that max amount of oxygen reaches from Western Part. We have done mapping in such a way that majority of oxygen is transported from nearby place

Additional Secretary, Ministry of Home Affairs, Mr. Goyal made the following submissions;

Mr. Goyal: The highest level of governments are involved…The amount of oxygen (140MT) that came from Dubai, was immediately transported from Mundra and transported to Delhi.

Mr. Goyal: Production is not a problem. Shortage of containers is the problem. We have a lot of stock in oxygen and to have smooth flow, we need to augment the system of transportation.

Mr. Goyal: We have brought in the best officer to cater to the allocation of oxygen in Delhi. When DHC said in its order that CG should help Delhi, we along with Virtual Central Control Room created another group exclusively for Delhi.

Mr. Goyal: Supplies from Gujarat is also being allocated to Delhi.

The bench, recalling its order dated April 30^th, noted that even in pending process of tender allocation, the Government was at liberty to enter into private agreements and procure Oxygen from other entities.

Justice Chandrachud: Is it not possible for us to import oxygen every day? What is the turn around time? What is the shipping time?

Mr. Goyal: The problem is shortage of container. This is being worked out. This is because the ones who are willing to supply oxygen are unable to because of containers.

SGI: According to me if they get around 500 MT of oxygen, it would be sufficient.

Justice Chandrachud: It is an institutional order of supplying 700 MT (order dated April 30^th of the Supreme Court) of oxygen Mr Mehta. We cannot go back. 550 MT of oxygen is not helping the people of Delhi.

Senior Advocate and Amicus Mr. Jaideep Gupta drew attention to the mechanism adopted for computation of Oxygen.

Sr Adv. Gupta: All I am saying is that the allocation is made on the basis of beds but there are 1000's of people outside hospitals, who require oxygen too.

Learned solicitor also recommended to form an independent committee to look into the systemic shortcoming or requirement which needs attention.

SGI: There can be some systemic failure at my end, or at their end or both of our ends. I am posing a question to myself, let there be an audit by an Independent Body to figure out the ground reality. Let them go into it and report.

As per the initial findings of the committee comprising Dr Guleria, Director AIIMS, DG ICMR, and NITI Aayog member Dr. VK Paul, the requirement of Delhi is limited to 419 MT. However it was directed at 700 MT by the Supreme Court order dated April 30^th. It is the case of GNCTD that the requirement is dynamic and shall go upto 900MT in the coming days. Suggestion of formulating a committee looking into the logistics and management of Oxygen supply was made in this regard by the learned solicitor.

The matter is listed for hearing tomorrow at 10:30 AM.