Justices Vipin Sanghi and Rekha Palli also rejected the submission of the Centre, represented by additional solicitor generals Chetan Sharma and Aishwarya Bhati, that Delhi’s daily oxygen demand was not 700 metric tonnes (MT).
“We reject this submission of Mr Sharma and Ms Bhati that GNCTD is not entitled to receive 700MT per day in the light of the existing medical infrastructure. It pains us that the aspect of supply of oxygen for treatment of Covid patients in Delhi should be viewed in the way it has been done by the central government. We are seeing the grim reality every day of people not being able to secure oxygen or ICU beds,” the bench noted.
The court observed that hospitals and nursing homes had reduced their bed capacity and were not able to service the existing capacity as well due to shortage of oxygen.
“On the one hand, there is a need to augment capacities to meet the rising numbers of Covid-19 positive cases while on the other hand the existing infrastructure is crumbling and the bed capacity which is available can’t be put to good use. We, therefore, direct the central government to show cause as to why contempt action should not be initiated for not only non-compliance of our order …(but) also of the Supreme Court order passed on April 30, 2021,” said the court.
Two senior officials of the central government, Piyush Goyal and Sumita Dawra, were accordingly directed to be present on Wednesday.
During the course of the hearing, the court was informed that Delhi still hadn’t received 700 MT of liquid oxygen per day in spite of the fact that the Supreme Court had in a detailed order on April 30, 2021, asked for compliance by the Centre by the midnight of May 3, 2021. The court then took note of the relevant portions of the Supreme Court order in its own order.
ASG Sharma had submitted that a compliance affidavit was being filed in the Supreme Court on Wednesday.
“We fail to understand what good a compliance affidavit would do when as a matter of fact 700MT is not being delivered to Delhi on a daily basis. In fact, the earlier allocation of 490MT which has been revised to 590MT is not received for a single day,” the bench underlined in its order.
“In our view, this itself is sufficient to show that according to the SC order, Delhi should be allocated and provided 700MT per day. If there was any doubt, the same is cleared from the further reading of the order.” The Supreme Court in its order had said, “This situation must be remedied forthwith. The situation on the ground in Delhi is heart-rending.”
“This is something that, from the submissions of Mr Sharma and Ms Bhati it appears, is not present to the minds of the central government,” said the court. “In the same paragraph, the SC takes note of the assurance given by the SG on instructions to the effect that GNCTD’s demand of oxygen will be met and the national capital will not suffer for lack of oxygen.”
It was, however, observed that the Centre’s assurance had not been fulfilled. “We are seeing day after day how small and large hospitals are running to us with SOS for supply of oxygen,” the bench said.
Earlier in the hearing, the court had remarked that Centre’s officials had been informed about the aspect of oxygen allocation to Delhi and an order was passed. “We told your officer. Contempt is the last thing on our minds doesn’t mean you will take it lightly-…Certainly, it is there. Don’t drive us to issue notice…Now we mean business. We are not going to take no for an answer. There is no question why right away you can’t give 700MT. SC runhas said and we are saying it. We are making it clear.”
When the bench was informed that an affidavit on oxygen supply would be filed, the court said, “We don’t want to hear the Centre on anything apart from compliance. What is the purpose of an affidavit? We want compliance. What is the use of an affidavit?”
On being informed that the Delhi government had earlier made a demand of 300MT and then revised it, the court remarked, “Because they made the demand of 300MT, that’s why people of the city should suffer? Therefore, the Centre is quibbling about these little things to justify and let people die?”
“Are you living in ivory towers? You may want to be the ostrich in the sand but we will not be,” the bench remarked.
The court also pulled up the Centre for referring to the Delhi government’s statement that “with 420MT, citizens are dying” as “rhetoric”. The bench said: “Is this only rhetoric? Is it not a fact? Sorry, we don’t accept. We will not shut our eyes. It is very unfortunate. How can you be so insensitive! Be careful when you use this language,” the bench said.
Earlier, Delhi government’s counsel, senior advocate Rahul Mehra, had referred to the Centre’s submission made in the Supreme Court regarding 1,224 oxygen tankers in the country with a capacity of 16,732 MT and efforts being made to enhance the number of tankers to 2,000 through conversion of nitrogen and argon tankers and import of 138 cryogenic tankers.
Mehra, therefore, submitted that there was no dearth of tankers and the only issue was the turnaround time. The court later asked the Centre to improve the oxygen allocation issue with respect to mobilisation of tankers.
ASG Bhati said, “We will get back with clear scientific data. Specialised groups are dealing with this mechanism.”
The court subsequently asked, “How many experts are there from the suppliers in that group?” ASG Sharma informed that while 138 cryogenic tankers were being imported, another 50 were being manufactured.
“The point is what you are planning and getting is in the future… We don’t even know whether it is going to be one week or two weeks or one month or six months…Whole nation is crying for oxygen. Our only concern is… Is it being (done) in the most efficient way? The way we look at it is we don’t even know… Maybe it is being done. We are only trying to persuade you. Assumption (is) you have not involved major suppliers, major players in the trade in the allocation business… You need to go back… involve some people technical some brilliant minds from IIMs… They will be able to tell the best model as to how to work efficiently with what you have today,” the court remarked.