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Union Government Cannot Be Oblivious In Meeting Oxygen Requirements of Delhi: Supreme Court

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The Delhi High Court had directed the Central Government to ensure that the Government of NCT of Delhi receives its allocated supply of 490 MT. The Centre was directed to arrange tankers so that the allocation made to Delhi could be fulfilled. By the second order, the Central Government had been directed to show cause as to why contempt action should not be initiated not only for non-compliance with its order dated 01.05.21 but also of the order passed by this Court on 30.04.21. The order of this Court mandates that a supply of 700 MT of LMO per day has to be effected to the NCT of Delhi. Aggrieved by the directions of the High Court initiating contempt proceedings against two of its officers, the Union of India filed the present appeal.

Arguments before the court

Mr Tushar Mehta, Solicitor General, submitted that the Central Government accepted its obligation to comply with the order of the Supreme Court Dated 30.04.21. However, the exercise of the contempt jurisdiction was not warranted for a variety of reasons. The expert group constituted by the Central Government determined that the oxygen requirement would be calculated on the basis for 50% of non-ICU beds at the rate of 10 litres per minute, and 100% of ICU beds at the rate of 24 litres per minute. It was contended that on this basis, the optimal requirement of NCT of Delhi should be approximately 415.43 MT/day whereas, the demand of 700 MT of LMO per day, appears to be contrary to its optimal requirements. The counsel further urged that if a proper audit is conducted of the requirement of Oxygen for the NCT of Delhi, a scientific assessment could be made of the actual requirement of NCT of Delhi based on which an allocation can be made.

The counsel on behalf of GNCTD furnished data regarding the quantity of Oxygen that had been allocated to the NCT of Delhi since 28.04.21. The data suggested that there has been an increase in the availability of Oxygen between 2, 3 and 4 May 2021, though the quantity of 700 MT which was prescribed in the order of this Court dated 30 April 2021 was yet to be achieved.

Court’s Observation

The court observed that the issue of the availability of Oxygen for the NCT of Delhi has to be resolved to bear in mind the availability of Oxygen in the country so that suitable arrangements are made for allocation and transportation. The court found that there were several dimensions to the problem. The Centre must look at the formula afresh and determine whether it needs to be altered regarding specific requirements of areas such as NCT of Delhi. Apart from the requirement of Oxygen in a formal institutional framework, Oxygen is also being made available to individuals who are unable to get beds in hospitals. Thus, it wouldn’t be adequate to make an assessment exclusively based on the formula. Another aspect of the matter was the requirement of managing the resources of Oxygen to optimize the availability of the NCT of Delhi. This would be dependent on the efficiency of the supply chain and proper distribution of Oxygen from the supply points up to the hospitals. The next aspect that needed to be emphasized was the actual availability of Oxygen.

Court’s Decision

Based on all the submissions the court stated that it is prima facie not expedient to take recourse by invoking the contempt jurisdiction against the two officials of the Central Government. An opportunity should be granted to the Central Government to place a plan indicating how the requirement of the NCT of Delhi of 700 MT shall be complied with. The court thus directed the Central Government to place a comprehensive plan before this Court specifically indicating how the direction for the allocation of 700 MT of LMO to Delhi shall be complied with. The plan shall indicate sources of supply; provisions for transportation; and all other logistical arrangements necessary to ensure the fulfilment of the requirement of the NCT of Delhi. The court further stayed the operation of the contempt notice which has been issued by the High Court of Delhi on 04.05.21. The court also clarified that the stay which has been granted of the contempt proceedings shall not operate as an order of restraint on the High Court continuing to monitor the issues which have arisen before it.

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