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Delhi High Court undertook an urgent hearing by Max Hospital seeking directions against the Union, to fulfil the need of additional oxygen cylinders in the absence of which life of around 262 COVID patients remain under threat.

“The Hospital at Patparganj has currently only 3 hours of supply of oxygen and if the oxygen run outs the life of 400 patients out of which there are 262 covid patients is under threat. A number of these patient are critical and on ventilator support and in the Intensive Care Unit (ICU)”, the plea stated.

A Division Bench of Justice Vipin Sanghi and Justice Rekha Palli, while taking on record that the Central Government will ensure 480MT safe and unobstructed passage of Oxygen tankers to Delhi, adjourned the hearing for tomorrow.

Learned Solicitor General, Mr. Mehta apprised the Court with the Centre’s position, submitting;

“Officers are not directly dealing with the procurement and supply of oxygen. The Central Government is the facilitator. So far as the present case is concern (Max Hospital), Senior cabinet minister has ensured that tankers would reach. Max hospital in one area has already received one tanker and the other will reach. We have geared up all our resources.”

In reference to the earlier order for diversion of oxygen and the amendment passed therein, Justice Sanghi said,

“There has been no decision taken to divert the oxygen. The need for oxygen has increased 5 times than what it normally is. We are dealing with the lives of people. You know what happened in Nasik. That happened because oxygen stopped due to an accident.

It is the responsibility of the state to supply oxygen. How is it that your officers are not looking at that situation.”

Learned Solicitor submitted,

“Officers are discharging their duties beyond their office hours. The decision making is not with them, it is with the Central Government.”

SGI also informed the Court that the Delhi CM made it public through a Tweet that they have received the Oxygen supply.

“As responsible government we know that you would supply oxygen, but it is the responsibility of the state; It is our bounden duty to protect the Fundamental Rights of the citizens”, said Justice Sanghi.

Additional Secretary, DPIIT Ms. Sumita Dawra also appeared for the Union; intimated about the policy decisions of the government dated April 6 and the related Statistics.

Justice Sanghi: “The number of cases are increasing. Every 10 days the same are increasing. The fact of the matter today is, that there is shortage of oxygen. We cannot ignore that. You have given us the figures and we appreciate it… The point is from where we should get it from. You cannot say that let people die. That’s not what a responsible government does. We cannot see people dying.”

Ms. Dawra further deposed, as per her communication with the Chief Secretary;

“We have tied up Delhi with 480 MT of oxygen for every day. On 20 April something like 500 MT was with the hospitals and 200 MT was with the manufacturers. There was some more oxygen on the way. Today, Minister has sat checking the supply of cylinders from Panipat, Faridabad.”

Advocate Mehra, appearing for GNCTD informed the Court that,

“140 MT Tons of oxygen from Panipat, had to be supplied and other from one more place. That's what we got…The situation today is alarming. How can I as a responsible state go against what the reality of ground level is.”

Justice Palli to Additional Secretary DPIIT Ms. Dawra: “Ms Dawra, I only wanted to know one thing that you have given your reasoning, but the only concern we are expressing is that why are you not trying to get oxygen from the industries who are producing oxygen?

Justice Sanghi: It is your responsibility as a State. What we are telling you today is that you’ll have to go a step further. You can go ahead and take oxygen from the captive industries. The industries will have to shut down. So be it. Let it be inconvenient. We have commercial interest in one Hand and people’s life in the other hand.

Replying to the submission made by Advocate Mehra, Learned Solicitor submitted that the tankers are already in the way and that there is some lack of information and lack of honesty; “We have the responsibility of supplying the oxygen and we will ensure that oxygen reaches Delhi. But we are not aware of the internal distribution.”

Advocate Mehra also made submissions regarding safe passage of oxygen and that it be supplied directly to the end user.

The hearing took place in two halves. Before the interjection made by the Learned Solicitor, the bench had dictated an order making very strong observations, which was later deferred in light of the submissions made by the Learned Solicitor.

“You want to see people dying. Why are you doing it? Hospitals are running out of oxygen. You can't have people dying because of lack of oxygen.

We are shocked and dismayed that the government does not seem to be sensitive enough to the demand of the medical oxygen for treating COVID patients.”

The Bench added that if required, the Central Government should divert the oxygen from industries particularly steel and petroleum for medical usage.

“Central Government should consider ways and means of transporting the plants either by dedicating a corridor so that the supply is not obstructed or even by airlifting the same from place of production to place of delivery.”

On being informed by Advocate Monica Arora that the Central Government has released the allocation of oxygen from 300 MT to 400 MT, the bench pulled up the Government, stating,

“It will be no solace that you are supplying the same by paperwork. The Central Government has all resources and command for supply of oxygen. Mr TATA has agreed to help the entire nation. We know how philanthropic he is…Why can’t you stop whatever is not important.”

On diversion of Oxygen Supply, it was categorically observed,

“Government can very well divert the oxygen. Even if these industries run at lower capacities in such time as medical oxygen is proposed to be imported, heavens are not going to fall. We direct the CG to take over the production of oxygen from steel plants and necessary petroleum plants for supply to hospitals, even if it means that such industries have to stop their production at such time till medical oxygen is made available.”

Case Title: Balaji Medical & Research Centre v. Union of India