Supreme Court stays Delhi high court’s contempt notice to Centre

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The Supreme Court on Wednesday stayed the show-cause notice issued by the Delhi High Court to the Central Government for contempt action over its failure to supply 700 MT medical oxygen per day to Delhi as per the directions of Supreme Court and the High Court.

“Hauling up officers taking recourse to contempt jurisdiction will not itself resolve the problems confronting the National Capital Territory of Delhi. When the country is facing the pandemic, the effort of the court must be to solve the problem by actively engaging with stakeholders”, the Supreme Court said.

However, the Court emphasized that the Central Government has to comply with the April 30 order of the Supreme Court to increase supply of medical oxygen to Delhi as 700 MT per day to deal with the COVID19 crisis.

The Court stressed that its April 30 order can only be interpreted as a direction to supply 700 MT oxygen per day to Delhi.

The Court has directed the Central Government to place before it a plan, with a tabulated chart, which will indicate the manner in which the Centre will comply with the SC order to supply 700 MT of medical oxygen.

The plan should indicate :

  • Sources of supply,
  • Provision for transportation and
  • Logistical arrangements necessary.

The plan has to be placed before the bench tomorrow morning at 10.30 AM.

A bench comprising Justices DY Chandrachud and MR Shah was hearing the petition filed by the Central Government against the Delhi High Court order.

It may be noted that the Delhi High Court on Tuesday pulled up the Centre for its failure to meet the assurance with regard to the supply of 700MT per day liquid medical oxygen to the Delhi Government in line with the directions passed by the Supreme Court.

A division bench comprising Justices Vipin Sanghi and Rekha Palli had directed the presence of Central Government officers Sumita Dawra and Piyush Goyal, who are handling oxygen allocation to states, on May 5, to explain the failure to comply with the High Court and Supreme Court’s order to supply the required oxygen to the Delhi Government to treat critical COVID patients.

The Centre moved the Supreme Court today against the Delhi High Court order, and the matter was assigned to Justice Chandrachud’s bench after the matter was mentioned by the Solicitor General before the Chief Justice of India.

From the SC hearing

At the outset, Justice DY Chandrachud took exception to Additional Solicitor General Chetan Sharma telling the Delhi High Court that the Supreme Court has not directed the supply of 700 MT per day of oxygen to Delhi.

“Why does your ASG say we have not directed 700 MT? The problem is when your ASG argues this before Delhi HC…you are getting into cross-fire”, Justice Chandrachud told the Solicitor General Tushar Mehta.

“I am not getting into it. I will stand by my colleague”, the Solicitor General replied.

“After the Supreme Court order, the effort must be to comply. Putting officers in jail or hauling them up for contempt will not get oxygen. Let us find solutions. Let us ensure lives are saved’, Justice Chandrachud said.

The judge stressed that there should be “a spirit of cooperation” to save the lives of the people.

The Solicitor General said that the Centre is in the process of reaching the figure of 700 MT, and eventually it will be reached.

He informed that yesterday, 585 MT was allocated. The SG explained that the allocation of medical oxygen quota for each state is on the basis of a formula evolved by experts.

The demand of each state is projected on the basis of hospital beds and COVID cases.

Based on this formula, the Solicitor General said that the demand made by Delhi Government for 700 MT was not justified.

Bed-oxygen formula not scientific, the bench says

Justice Chandrachud asked if the formula evolved for allocation of oxygen quota is scientific. The judge noted that the formula was based on an assumption that 100% ICU beds need oxygen and 50% non-ICU beds need oxygen.

“Different states are peaking at different points of time. So, you cannot have a general assessment for the entire country”, Justice Chandrachud observed.

He also wondered if such a ‘rough and ready’ formula is really scientific. “We need to do it little more scientifically”, Justice Chandrachud observed.

The bench then asked the SG the details of daily allocation to Delhi after the Supreme Court’s order directing supply of 700 MT per day was uploaded on May 2.

The SG informed that on May 3 the allocation was 433 MT and May 4 it was 585 MT. At this juncture, Senior Advocate Rahul Mehra, appearing for Delhi Government, corrected the figure as 555 MT, saying there was a double accounting.

The bench asked the SG what are the modalities to ensure 700 MT for Delhi. The bench said that it has directed the supply of 700 MT per day to Delhi despite the Centre’s stand that the said figure is on the higher side.

Senior Advocate Jaideep Gupta, who is the amicus curiae in the suo moto COVID case, said that computing oxygen need on the basis of hospital beds is not scientific as there are many people, who have not got hospital admissions, who require oxygen.

Agreeing with this, the bench said that the hospital-bed formula for oxygen supply was not scientific and urged the Centre to have a rethink of it. 500 MT not sufficient for Delhi, bench says Justice Chandrachud observed during the hearing that the ground situation showed that 500 MT allocation for Delhi was not sufficient.

The judge made this remark after the Solicitor General said that Delhi will be able to manage with 500 MT. “According to me, if they have 500, they will be able to manage. We don’t have unlimited oxygen, we will have to rationalize”, the SG said.

The bench said that it cannot accept this. “We are answerable to the citizens. As Judges we don’t have contact with as many people as you are. But, officers in my office tell, lawyers are crying, asking for help. 550 is not sufficient. The ground situation shows that”, Justice Chandrachud said.

Can Mumbai model be replicated? The bench suggested that the model adopted by the Mumbai Corporation to tackle the oxygen shortage issue can be replicated in Delhi.

“Bombay Municipal Corporation is doing some great work. What are they doing?How are they managing? I understand that Maharashtra also produces oxygen, which Delhi cant do. But if a great metropolis like Mumbai could do it, Delhi could also take some lessons”, Justice Chandrahcud remarked.

The Solicitor General also agreed that the Mumbai model, which managed with 275 MT of oxygen when the active cases were 92,000, was laudable. Justice Chandrachud suggested that the Chief Secretaries and Health Secretaries of both the Delhi Government and the Central Government have a discussion with the Commissioner of Mumbai Corporation to draw from Mumbai’s experiences.

“‘If both the Chief Secretary and Health Secretary of Delhi and Centre could converse with BMC commissioner and the additional commissioner,if you can draw from that experience, how you can create storage tanks, and buffer storage etc, if you can do between today and Monday, we will get a plan in place for Delhi on the Bombay model…we will have a fairly successful model in a globlal metropolis in Delhi”, Justice Chandrachud remarked.

“We want to analyse what was done in a large metropolis like Mumbai and how it can be emulated, as we are answerable to citizens of Delhi”, the judge added.