Supeme Court stays Delhi HC notice against Centre, but wants plan on oxygen

The Bench was hearing a plea by the Centre against the High Court’s direction asking it to show cause as to why contempt should not be initiated against it for failing to comply with orders for supply of LMO to Delhi.

The Supreme Court on Wednesday stayed the contempt notice issued by the Delhi High Court against the Centre in the matter of supply of Liquid Medical Oxygen (LMO) to Delhi, stating that “the aim is not to haul up officers for contempt” and that such action will not bring oxygen.

While granting the stay, a Bench of Justices D Y Chandrachud and M R Shah made it clear that it was not stopping the High Court from monitoring Covid-19 management-related issues, and directed a meeting between officials of the Centre and Delhi government by Wednesday evening to discuss issues related to oxygen supply.

The Bench was hearing a plea by the Centre against the High Court’s direction asking it to show cause as to why contempt should not be initiated against it for failing to comply with orders for supply of LMO to Delhi.

The Bench headed by Justice Chandrachud said that “exercising powers under contempt jurisdiction will not solve the problem facing Delhi. When the country is facing a humanitarian crisis, the court must aim at problem solving”.

Taking a nuanced view of the oxygen production, demand and supply question vis a vis Delhi and the rest of India, the Bench asked the Centre to inform by Thursday how it planned to meet Delhi’s demand for 700 MT (metric tonnes) oxygen, in compliance with the Court’s order on April 30 directing it to meet any shortage in Delhi “on or before midnight of 3 May 2021”.

Appearing for the Centre, Solicitor General Tushar Mehta said all states had demanded more oxygen but the supply was on the basis of the formula suggested by an expert group formed to rationalise this. This committee, the SG said, had suggested 50 litres oxygen per minute for ICU beds and 25 litres for non-ICU beds, and on the basis of this concluded that Delhi might not need 700 MT.

However, the Supreme Court said this formula might merit a rethink as demand is also based on people in need of oxygen and not just those occupying beds. Justice Chandrachud said the demand also depends on state-wise pandemic scenarios. “Odisha may be different from Maharashtra. Different states are peaking at different times, so we cannot have a general assessment.”

The Court also talked of the need to manage resources to optimise oxygen availability, including efficiency in the supply chain right up to hospitals, and to create buffer stocks.

In this regard, the Bench agreed to consider the Centre’s prayer for an audit to know oxygen needs and sought names of experts who could be included in a committee if and when it is constituted to look into the question.

“We need to do this scientifically,” Justice Chandrachud said, adding he will discuss the matter with Justices L Nageswara Rao and S Ravindra Bhat, who were part of the Bench that delivered the April 30 order. “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 also mentioned that the Court had read reports about the Brihanmumbai Municipal Corporation (BMC) doing “some remarkable work”, and suggested that the Union Health Secretary and Delhi Health Secretary have a meeting with BMC Commissioner Iqbal Singh Chahal to find out how a storage mechanism can be created for Delhi to meet any sudden increase in demand.

On the Court’s query as to how much oxygen had been supplied to Delhi since its previous order, Advocate Rahul Mehra, appearing for the Delhi government, said the Capital got 431 MT on April 28, 409 MT on April 29, 324 MT on April 30, 422 MT on May 1, 447 MT on May 2, 433 MT on May 3 and 555 MT on May 4.

The Court noted that while “this shows an increase”, the target of 700 MT was yet to be achieved. It also took note that 351 MT of LMO had reached Delhi by 12 am Wednesday.

Piyush Goyal, the Additional Secretary in the Union Home Ministry who appeared before the Bench, repeated that shortage of containers was the main issue. “Stocks are existing in eastern parts like Jamshedpur etc but due to fewer containers, the supply is not coming in.” He pointed out that Odisha is sending supplies via train now.

On the steps taken by the Centre, Goyal said: “When the Delhi HC asked us to handle (the matter) on April 23, then apart from the national virtual control room, we created a special virtual room for Delhi. Supply has really moved on after this.”

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