'We Want Union To Supply 700 MT Oxygen To Delhi On Daily Basis, We Mean Business' : Supreme Court Directs Centre

At the outset, SG Tushar Mehta informed the Court that by the end of the day on Wednesday, 730.7 MT oxygen has been received by the NCT of Delhi, as per the report of the Delhi government itself. "This is more than Your Lordships' direction of 700 MT", he said. He pointed out that in view of this large quantity which has reached Delhi since yesterday, Delhi is in excess of oxygen now. "I know for a fact that it has not come to be distributed as yet. It is important to point out that after this huge supply, unloading is taking long, which is increasing the turnaround time for the tankers", he submitted.

It was his case that states like Rajasthan, Punjab and Haryana, Jammu and Kashmir and Himachal Pradesh are also asking for more oxygen now, and that if more than Delhi's rational requirement of oxygen is given to it, it will deprive other states of an equitable distribution. It will also hamper the equitable distribution of the tankers among the states. "707 is not the correct factual position. It will result in an interference with the allocation to other states if this supply is kept up, in complying with the order of April 30. The consequences will then be beyond the control of the central government", advanced the SG.

He proceeded to indicate that even on the supply of 585 MT, as on May 4, there has been no complaint of "stock out" from Delhi. "A survey of 56 major hospitals of Delhi, including Batra, Fortis, Ganga Ram, was carried out on May 4 between 8 and 8:45 PM. It revealed that the current stock available with these hospitals is 280 MT (without including the re-fillers), the average daily consumption is 290 and the storage capacity is 478. All hospitals in the survey are using LMO. This reveals that there are significant stocks available with the hospitals", he submitted.

At this, Justice Chandrachud interjected to ask, "It appears you gave 700 to Delhi yesterday. We appreciate the efforts that your officers have made to comply with our orders overnight. We like the spirit in which it has been achieved in last 24 hours. But (as per Sumita Dawra, Additional Secretary to the GOI in the Department for Promotion of Industry and Internal Trade), the next time it reaches 700 will be on May 10 because of the turnaround time of the containers. The supply will fall to 560 in the next 2 days due to the container issue...now, the storage capacity of the 56 hospitals is 478. After accounting for the refill cylinders, the total storage capacity comes to 665. To what extent is the storage capacity availed of? It must be empty right now?"

Justice Shah elaborated, "Is oxygen there or not in this storage capacity? It doesn't seem so because the current stock is 280 and the average daily consumption is 290"

The bench was informed by Ms. Dawra that the stocks are depleted fast as the cases increase and that on May 4, of the storage capacity of 478 MT, 50% was full between 8 and 8:45 PM. The SG also added that this is an ongoing process and the storage capacity is not empty or filled up at all times. He advanced that it maybe plus or minus every two hours.

"There will be a two-day lag when 700 will come down to 560 because of the container issue. Are there any buffer stocks to deal with this situation? How will Delhi manage without full supply? Buffer stocks would have taken care of the situation when panic is created when hospitals say they are left with just 1 hour or 2 hours worth of stock", pressed Justice Chandrachud. Justice Shah also added, "Every hospital starts sending in SOS calls that they have 2 hours or 3 hours of stock left. If there are buffer stocks, there would be no difficulty. In our April 30 order, we have said that buffer stocks should be created by the midnight of May 3"

"I have discussed this problem of 2/3 hours' stock with several doctors. It may be noted that most hospitals, except the major ones, are not Covid hospitals. They are hospitals with 15, 20 or 30 beds. They did not have a storage capacity as they used oxygen stored in cylinders. The total capacity that they have is of 12 hours only. That is how they say that they have three hours' worth stock left. It is not because they have been waiting for three days and raising SOS, it is because of the peculiar nature of the hospital", replied the ASG

"But the demand is by big hospitals also, like Batra and Gangaram. It results in panic in the minds of the people", noted Justice Shah.

"Yes, there are daycares and orthopedic centers which have been converted into Covid care facilities. But their requirement also has to be taken care of. Besides, I read in the newspaper that Batra Hospital had also raised a demand, saying that it is left with only three hours' worth of stock, and senior doctor lost his life due to this", added Justice Chandrachud.

"There is probably a lacuna in the supply. But even when I am supplying 400 MT, people are still suffering. So there is a possibility that there is a failure in the manner in which the state government is distributing the oxygen internally, how it is being managed and utilized- A systematic failure. That is why I am insisting on a scientific audit of the actual requirement. It is undisputed that oxygen is a must. We have diverted oxygen from other states to Delhi to make it 700. Suppose Your Lordships find that if the oxygen was properly distributed within the city, the actual requirement of Delhi is 400. In that case, I am answerable to the other states for the additional supply to Delhi", replied the SG.

As regards efficiency in the management of oxygen by the state government and the internal distribution, the SG pointed out, "If, as per me, 500 is the optimum amount to be allocated to Telangana, it is for the Telangana state government to map out the areas of lesser requirement and those areas where the requirement can potentially increase. Each government has to devise its own system. That is why I say an audit of Delhi is necessary. The model of Delhi can be replicated everywhere else"

'Formula for calculating Oxygen requirements of states/UTs needs a revamp; it is making a gross underestimation of the requirement of Delhi'- SC

At this, Justice Chandrachud reiterated that the formula, which is used by the Centre for determining the oxygen requirements of different states, needs a revamp- "We have noted in our order yesterday that you are calculating the oxygen requirement based on the number of beds and the number of active patients. But the practical situation on the ground is such that not everybody who needs oxygen is in the hospital or in the ICU or on ventilator. The patients who would have been sent to hospital in the Stage I of the pandemic are in home isolation today. They also need oxygen. Your formula does not have any criteria of the oxygen requirement in ambulances or otherwise while in travel. There is a need for oxygen beyond the beds also. Based on the formula, there is a gross underestimation of the requirement. We see that the audit is necessary but there is also a need to re-look the formula from a national perspective. We are not in Stage I anymore but in Stage II and very soon we might be in Stage III. So the basis of allocation of oxygen must also change, we need different parameters, we must prepare for it today"

It may be noted that advocate Rahul Mehra, appearing for the GNCTD, had also pointed out that that sometimes patients in the ICU need to be given 36 L of oxygen per minute, as against the 24 L/min prescribed in the formula- "The doctor cannot say that because this is the yardstick sent by the central government, we can't give you more to save your life!"

Amicus Curiae Jaideep Gupta also concurred that the quantity of oxygen to be allocated should apply to the patients and not the beds. "If the problem of oxygen allocation is to be sorted out, there must be an epidemiological formula on how cases might increase", he said.

"You yourself said that for two days, the oxygen supply to Delhi will come down to 560. So why can't you ensure the enhanced supply of 700? If it is not used up, it can be put in the storage capacity to create a buffer stock so that there is no panic in Delhi. You say that now the supply will fall to 560 and it will become 700 only on May 10? Then what about between Friday and Monday?", Justice Chandrachud directed at the SG.

Justice Shah added, "This 560 is also subject to be availability of containers. You are not even committing to 560. The transportation plan of yours also has caveats- It is subject to the availability of containers and then only 560 will be met. How will you manage if there is no container? The future requirement also has to be considered. How would you deal with it, you are on today?!"

"We are asking you what to do, now that the second wave is upon us. I was reading that the third wave is also around the corner. It is a prediction by some official scientists. There is a need to plan everything in a scientific and consolidated way", added Justice Chandrachud.

When the SG again sought to submit that the formula for allocation is not static, Justice Chandrachud noted with a hint of exasperation, "Oh, that is fine! But when will it become dynamic? Your committee did not provide for what are obvious points to even us, as judges!".

"What appears to be obvious to us may not be so obvious. But I agree that we cannot block the committee's mind like this. We may involve more experts for their inputs to come up with a fool-proof formula. I am not saying that the formula is cast in stone. Your Lordships' point is being looked at with utmost care at the highest level in the government", replied the SG.

'You responded last night and brought supply up to 730. You have to continue to respond like this till Monday'- SC

The SG told the bench that the Centre has a particular quantity of the resource, and that though the government of India is augmenting its pool, he is not in a position to assertively tell when and how. "The augmentation is being taken care of at the highest political executive level. We are also talking to other country leaders in this regard. But it must be rationally allocated to all states. Also, this is not a product which can be conveyed in regular trucks. We have a limited number of transportation vehicles also, though the tankers are being imported on a day-to-day basis", he continued.

"Today, when we leave the matter, it will be taken up only on Monday. You need to augment the supplies so that there is sufficient availability of oxygen in Delhi between Friday and Monday. You have the holding operation, but it does not mean that you reduce the supplies. 700 you have to give. Once we complete the exercise of audit and the requirement of Delhi is rationalised, the situation may be different. But as of now, we are in the dark. And we are seeing what is happening on the ground. If you reduce 700 to 560, what will happen? You responded last night and brought it up to 730. You have to continue to respond like this till Monday", Justice Chandrachud told the SG.

When the SG suggested that though the supply to Delhi has not been 700 MT in last 2-3 days, there has been no major problem, Justice Shah remarked, "May be nothing was reported. But we see what is happening every day"

"It is not because of less supply at my end", pleaded the SG.

"We know that the people die even despite best efforts of doctors and without Covid also. We know that everybody who has passed away is not because of the lack of oxygen. But it is a critical component of dealing with the prevailing problem and it cannot be denied", remarked Justice Chandrachud

"Whenever we get an emergent demand, we will divert the supplies from another state to Delhi", the SG sought to submit. "That is also not correct. You cannot take away somebody else's bread", said Justice Shah.

"If I have to give 700 to Delhi, I will have to divert. Then there will be casualties in other states which will be beyond our control. Can we snatch away others' rights because a certain government is unable to manage?", urged the SG.

When Mr Mehra argued that an endeavour has been made by the central government to re-open the order of April 30 without filing any formal review, recall or modification of the same, to "wriggle out of its commitment of 700", Justice Chandrachud conceded, "We take your point". "In the past 1.5 hours of the hearing, there has been not a single word on the plan, as was asked by Your Lordships", Mr. Mehra had said. To this, Justice Chandrachud replied, "They are trying to justify giving 560 instead"

In his turn, amicus Mr. Gupta summited that the bench had listed the matter on Thursday for the central government to produce a plan as to how to ensure supply of 700 MT to the NCT of Delhi until such time the exercise of audit is conducted and the requirements are directed to be revised by the Court- "No plan has been produced by them as such! Your Lordships has said that the plan shall remain in operation pending further orders. If there is no plan, it is not clear for how long and until when this 700 is to be supplied. I think that it should remain this way till the new formula is arrived at by Your Lordships. If this is not possible, then at least until the next hearing (on Monday), the 700 must remain. Please do not let Your Lordships' order be open to interpretation by the people; please express this clearly! The moment Your Lordships say that an audit is to be conducted, a debate will start that the 700 figure has gone!"

"There is a shortage of oxygen in Delhi, even the SG cannot deny this. He says 700 is an unrealistic figure? If 700 is not correct and 490 is sufficient, then that means there is no shortage in Delhi! If we go out to the streets and say that there is no shortage of oxygen in Delhi, people would be flabbergasted!", Mr. Gupta beseeched