A special Sunday sitting held in the Delhi High Court in relation to the issue of oxygen supplies to Delhi hospitals amid COVID surge witnessed discussions as to who has the responsibility to arrange tankers for transportation of oxygen - Centre or Delhi Government.
The Central Government has filed an application before the Delhi High Court seeking a recall of the order passed by it yesterday in which the Court warned the Central Government officers of contempt action if 490 MT of oxygen was not supplied to the National Capital Territory of Delhi.
The bench had passed the order taking note of the tragedy of eight COVID patients in Batra hospital dying due to lack of oxygen. The bench had also observed in the order that Centre has to ensure the availability of cryogenic tankers for the supply of oxygen.
A division bench of Justice Vipin Sanghi and Rekha Palli held a special sitting on Sunday afternoon to hear the Centre's recall application.
Solicitor General Tushar Mehta, appearing for the Central Government, argued that the liability of arranging tankers for oxygen transport cannot be shifted to the Centre.
Senior Advocate Rahul Mehra, appearing for Delhi government, questioned why Centre can't arrange tankers for Delhi using its resources. Mehra told the bench that despite its limitations as a non-industrial state, Delhi Government managed to get some tankers by requesting certain industrial houses.
"If we(Delhi Govt) could arrange tankers for its own using its resources, why can't Centre do it using all its might? Why can't Centre do more for Delhi? Can the Central Government not give another 100 MTs than the allocation? There is an allocation shortfall." Mehra remarked.
Mehra further stated that it never was and is not the responsibility of Delhi Government to get tankers, and despite that, being a time of crisis, the Government went out of its way to get tankers.
"Delhi is on a different Constitutional footing. Delhi Govt is also not an industrial state. How will it get tankers? It can only use its good offices to approach industries" the Bench observed during the hearing.
Amicus Curiae Senior Advocate Rajshekhar Rao told the bench that this issue requires a legal resolution.
The Bench noted that the amicus curiae has given a note on the legal issue of whose responsibility it is to arrange tankers.
However, Solicitor General urged the Court to not go into that issue as it will cause a serious harm to entire COVID management.
"Please don't go into that issue. With folded hands I am requesting. It will cause a serious harm to entire COVID management", Solicitor General said.
"We are not having the luxury of having a discussion on a constitutional issue. This will seriously affect the nation's efforts against COVID. Please do not go into it." SG said.
"Would your lordship want a situation where every State says it is not a state subject? Let us respond to the situation as citizens of the country." SG added.
SG Mehta urged the Court to not disturb the chain of supply which is functioning very smoothly.
Rahul Mehra objected to SG's submissions, saying that if the issue is decided it will strengthen Delhi's position of oxygen, and being in a court of law, things have to be decided legally.
The Bench stated that it is keeping the issue open. The bench said that if there can be a resolution to the matter without going into the legal issues, that would be preferred. So, the bench sought suggestions from the amicus in that regard.
Centre's application uncalled for, Delhi Govt says
"Despite the pressure, is it justified to say that State is not being managed properly? "GNCTD counsel Rahul Mehra asked.
Solicitor General clarified that their application doesn't even have a remote suggestion that the Delhi Govt is not doing things properly. He acknowledged, that the officers are working overtime, and he will will make never such an allegation.
SG informed the bench that the concerned Delhi Govt officer did not attend a meeting for discussing containers despite being informed.
In response to Rahul Mehra's submission that two officers of Delhi Govt were doing a lot of things, Solicitor General said that thrusting too many responsibilities on two individuals may not be a good method of management.
SG submitted that in principle, Centre is objecting to the shifting of liability (to the Centre). He added that there are many non-industrial states which are arranging tankers. It only requires some innovative thinking for the Delhi Govt to do it.
In response to the Bench's inclination to list the application on Monday, SG requested the Court at least modify the contempt part of the order, as it can have a snowballing effect.
The Bench clarified that contempt is the last thing in the mind of the Court, and that it is conscious of the difficult efforts taken by officers.
In response to Justice Sanghi's observation that Delhi is in a special position, SG said that the other states are not complaining of getting oxygen.
"Because they are getting oxygen." the Bench said.
ISSUE OF OXYGEN ALLOCATION TO STATES:
During the hearing,Senior Advocate Rahul Mehra for Delhi government submitted that Centre has taken over oxygen plants and allocation to states.
While other states were given the quantity they asked for, including States like Madhya Pradesh and Maharashtra who were given more, Delhi has been given 40% less than the demanded quantity.
Mehra said that despite all restrictions, GNCTD has been able to do better than Centre, and has been able to procure 7 tankers in the last one week on its own.
The Bench inquired about the discrepancy in the figures of oxygen supply given by Centre's officer Sumita Dawra and Mehra. Mehra clarified that Centre includes the quantity in transit as well, while the Delhi government doesn't include the quantity outside Delhi.
"It is no solace for a patient that the oxygen is in transit." Justice Sanghi remarked.
"In transit can also mean 1000 kilometers away", Justice Rekha Palli added.
The Bench observed that logically, the data should be about when it reaches Delhi, not when the sale is made.
Solicitor General urged the bench to direct Delhi Govt to augment its efforts to get tankers. Justice Sanghi observed that the Bench is dealing with a larger issue, with lives of hundreds of people, and that is the purpose of this jurisdiction
"Has the Central Government not issued a notification saying LG is the Government?" Justice Sanghi asked.
"That is for a different purpose. I will not get into that. It will not affect responsibilities." SG replied.
"Delhi is on a different Constitutional footing. Delhi Govt is also not an industrial state. How will it get tankers? It can only use its good offices to approach industries." the Bench asked.
Justice Sanghi then asked that since Delhi Govt has a list of number of beds, why can't the oxygen requirement be reckoned using this formula and allot the same, whether it is 500 or 700 MT.
Solicitor General responded to the Bench and stated that there is a larger issue involved as doing that will take away the oxygen for other states.
Referring to the document showing allocation to different states, SG said that some states with more beds are getting less oxygen than Delhi. Its not that there is no sufficient oxygen, if the oxygen allocated to Delhi is properly channelized, and utilised judiciously, this situation can be avoided.
Mehra objected to SG's statement and stated that to say that government is not using oxygen judiciously means, that the Doctors are not using oxygen judiciously, as State is not using the oxygen, the doctors are. He added that neither him nor the Solicitor General are experts to say what Doctors should do.
"Systematic failure is at their(Centre's) end " Rahul Mehra said.
Mehra said that the government is only asking that oxygen be given like it's being given to other states. The Delhi Chief Secretary demanded 700 MT oxygen through several letters and yet Centre told SC in affidavit that 700 MT was not demanded.
"It is perjury, contempt", Mehra remarked.
"Every Central Government officer appearing before Court is saying they are working 16 hours, 18 hours, how can my officers working overnight be a systemic failure. I will leave it at that" Mehra said, responding to SG's statement that there's a systemic failure.
During the hearing, the Solicitor General suggested Delhi to adopt the "Kerala model" as regards oxygen allocation, where all stakeholders are collaborating in real time in a war room. Mehra said that this will be looked into as a constructive suggestion.Mehra stated that if the Centre explains the rationale behind the oxygen allocation to states, as directed by bench on April 29, a lot of arguments could be avoided.
SG responded and said that the allocation of 490 MT of oxygen for Delhi has become 590 MT now, and what is required now is a system in place. He further said it may not be for the Delhi High Court to examine why other states are getting so much and so less.
"THERE IS A SYSTEMIC FAILURE " : SG MEHTA
While arguing on the application for recall of order, Solicitor General clarified that he is neither pointing fingers, nor making political allegations, saying government has failed. He added that there is a systemic failure, Systemic failure in every sense of the word.
He stated that there has to be system, where all hospitals make their data available to the State Govt, that 12 or 6 hours down the line, they would need oxygen.
"Systemic failure does not mean state has failed." SG Mehta said.
Further, he clarified that the word 'systemic failure' is not being used as a political statement but is in the sense that, there should be a system in place so that no body is required to be woken up in the middle of the night. There has to be a system for mapping of requirements, and to put GPS on tankers.
Solicitor General also took objection to Delhi Govt referring to oral exchanges which happened during the hearing in Supreme Court, saying that there are judgements saying things which orally transpired before one court can't to quoted before another court as that will be contempt.
The bench has issued notice on the petition and sought the response of the Delhi Government by Tuesday. The matter will be considered on Wednesday.
Live twitter thread of the hearing may be read here :