"We Don't Want To Hear People Crying for Oxygen Cylinders": Supreme Court -Courtroom Exchange In Suo Motu Covid Hearing

"We don't want to hear people crying for cylinders of oxygen. There has to be some difference between today and the next day of hearing. The intervention of the Supreme Court has to result in something for the citizens", observed Justice DY Chandrachud on Friday.

The bench, also comprising Justices L. Nageswara Rao and Ravindra Bhat, was hearing SG Tushar Mehta on the issue of oxygen supply to the states and UTs by the Centre.

"Although nobody had anticipated this second wave of Covid, the central government is prepared for it. No country in the world could have anticipated that this quantity of oxygen would be needed. But India was not an oxygen-surplus country before the pandemic.The central government has pulled whatever oxygen we have from whichever source possible – I am not using the word 'get' but 'extract' – we have extracted as much oxygen as we could have from wherever possible…", the SG told the bench.

"The first exercise that we did was to invite the states to give us an expected requirement. Based on this consultative process, we have allocated a particular quantity to each state. It is the responsibility of the state government to have this oxygen picked up. Transportation and logistics is an issue. But most state governments have handled it well. They have hired tankers. They have even requested import of cryogenic tankers which we have agreed to. Many states have asked industries in the chemical business to divert the tankers for transportation of oxygen only", he continued.

"We have a virtual central control room which comprises officers of the level of the joint secretary and additional secretary, from the Ministries of Health, Steel Home, DPDT. The states contact this room in case of a sudden urgency of oxygen and the room responds. I am aware that designation is not a guarantee of sincerity but I know from personal experience that all the officers in this room have shown sincerity beyond the call of the duty. They are working 24 x 7. And it is not as if they are obliging anybody, it is their job!", explained the SG.

"Suppose three tankers are designated to supply oxygen to Delhi and are stopped at Haryana by the officials of the state government, a distress call is made to the room. Suppose there is a requirement of 20 MT oxygen in the state of Uttarakhand on account of an eventuality, a distress call is again made to the room", he continued.

"If a state is unable to arrange the tankers, the Centre comes to the rescue. We don't say that if you are unable to do so then you are unable to do so. And this is nothing extra, we are supposed to do this. But the Centre is also facing some stress, though there are more and more tankers in circulation now. . Transportation would ease out even more in one week. But every state has to take a proactive role", submitted the SG.

"You have said that at the moment you have 1224 tankers and you said that you need 2000. What is the timeline for acquiring the same?", asked Justice Bhat.

"Some factual questions are arising for the first time. I don't want to reply to them immediately and say that it will take only a few days and all. But I want to say that this issue is being dealt with at war footing at the topmost level. Some philanthropic, big private industries have been involved in bringing in oxygen and the tankers. We are conscious that each life matters", said the SG.

"The allotment is dynamic. It varies every day, even every hour. There is an allocation of 8010 MT to 22 of the highest-burden states and union territories. The allocation was first made on April 15, and then it was revised on the 18th, 19th, 22nd, 25th and then the 27th. Oxygen requirement is calculated on the basis of active cases. The central government prepares the resources accordingly. We also look at the doubling rate of each state. This doubling rate is also calculated on a daily basis and the projections are accordingly updated on real-time changes", he added.

"Several industrial gas manufacturers have been granted the license to make medical oxygen and they' are supposed to start doing it within 24 hours of the application of the DGCA. The steel industry, which uses oxygen in gaseous form, as of April 21 has 16,000 MT of liquefied oxygen. The steel industry has supplied 1 lakh 43 thousand metric tonnes of medical oxygen till date from September 2020. Reliance and Linde are also involved in the manufacture of oxygen. The Reliance refinery in Gujarat has contributed significantly", continued the SG.

"What is the availability of oxygen on a pan India basis daily?", inquired Justice Chandrachud.

"We cater to the needs", replied the SG.

"So there is no deficit?", asked the judge.

"No, I don't think so there is any on date", assured the SG.

"In your affidavit, you have shown the requirement of the states right now and also, the projection for the future. You have anticipated 100% increase in the demand in the state of Uttar Pradesh and 133% increase in demand in Delhi. According to me, the availability is 8000 MT", remarked Justice Bhat.

"The availability is 10,000 MT. And it is being augmented on an hourly basis", replied the SG.

"As per your affidavit, it seems that in some states the allocation is in excess of the demand? So we are not an oxygen-deficit country, though we are importing it from the UAE", observed Justice Chandrachud.

'You assert that Delhi does not have full statehood, so the Centre is very much responsible for the citizens of Delhi', SC tells the SG

"Is it your case that the paucity of oxygen in Delhi is on account of the inability of the government to pick it up?", asked Justice Chandrachud.

"Yes. The supplier, as of today, is ready with 200 MT and he is asking for it to be lifted", replied the SG.

"But we can't tell the citizens that your spouse or your child or your grandparent cannot be saved for so-and-so reasons! What is the solution, you as the Solicitor General tell us", pressed Justice Chandrachud.

"Most tankers to Delhi are organised at the central level. Since Delhi is a non-industrial state, the problem is a little more acute. But there are other non-industrial states also which are managing the situation. The need of the hour is to come up with innovative ideas, like some chief secretaries of states have been communicating with the commerce secretary, asking how many tankers can be shared. The officials of the war room are in constant touch with the chief secretaries of the states, nodal officers have also been appointed. Rather than being belligerent, we must help each other", replied the SG.

"In your affidavit you have anticipated that there is a 133% increase in the demand in Delhi, from 300 MT to 700 MT. So why do they say that Delhi has been allotted only 490?", asked Justice Chandrachud. The SG replied that it was during discussions with the Delhi Chief Secretary that this figure was arrived at. "In hindsight, they cannot say that 700 was wanted and it was not given", he added.

"If there is a deficit of 200 MT for Delhi, you must give it immediately. And it must not just be allocated but made sure that it arrives. On the one hand, you assert that Delhi does not have full statehood and that the Centre is very responsible for the citizens of Delhi. We don't want to go into the constitutional issues, but as on date, you say you have 16,000 MT of oxygen in the steel sector", noted Justice Chandrachud.

"16,000 is what we have in the common pool. That is how we augment it. The Delhi High Court has also said that everything cannot be delivered to the government on its footsteps. The Delhi government also has to arrange for certain things. But if they don't, we will come to the rescue", replied the SG

To this, Justice Chandrachud said, "By Monday, we might have 500 deaths on our hands. It shakes our conscience. You need to do something"

"Delhi is a non-industrial state, as are Uttarakhand and Goa. You say that these two are arranging their own tankers? Every state is not in the same boat and the situation depends upon the severity. The Centre's proactive role in procuring tankers is very important regardless of the ability of the state", reflected Justice Bhat.

"If they lift even 400, we would have no difficulty. And 500 deaths would not happen because of the nonavailability of oxygen. I am using my discretion in not saying certain things", responded the SG.

"Let us, for a moment, place your submission at the highest and assume for a second that the situation as it prevails is because of the inability of the GNCTD. Please take a look at the Supreme Court, take a look at any 'Mohalla' in Delhi. Delhi is representative of the country, it is the macrocosm of the nation. There is no such thing as an ethnic Delhiite. There might be people who have been living here for generations, but they have all come from all over the country. You need to push through, you need to save life. Forget their inability, you have a special responsibility to Delhi...Even if we accept your narrative, we are placing a special responsibility on you as the central agency towards the Union Territory. The commitment is to the people who stay here and not to the different levels of the government", stressed Justice Chandrachud.

"We are walking on such a tight rope that if we divert one tanker or one MT, we may have to cut down on the supply elsewhere. But let me discuss with the officials", assured the SG.

Post lunch, advocate Rahul Mehra, appearing for the GNCTD, sought to make a brief submission – "I am not here in an adversarial capacity. We have to fight this crisis as Indians together, and not as states and union territories. But I just want to place the fact on record that the Union of India's affidavit of April 20 itself notes that there is a demand of 700 MT from Delhi. As early as April 17, the Additional Chief Secretary, Delhi wrote to the central government for our allocation to be raised to 700. This was followed by a letter by the Deputy Chief Minister on April 18 and finally by the Chief Minister on April 19. To say that it was only on the 29th that the demand was raised...perhaps the officer was not briefed properly, that is all I can say"

"I have already assured the court of our commitment. Let's leave it at that", submitted the SG.

"How much allocation was made to Delhi initially?", asked Justice Chandrachud.

"It was 379 initially. After a demand of 700 MT was made, it was raised to 480 and then 490. But we have not received 490 on even a single day", replied Mr Mehra.

When Justice Chandrachud enquired how much of this oxygen has been lifted by the Delhi government, Mr Mehra informed that in view of the better coordination between the Centre and the Delhi government in the past three days, it has come to be 400 MT. "On the best day, it was 431.79 MT against the 500 allocated", he added.

"The Delhi High Court had asked how we intend to cope in mid-May when the Covid crisis would be at its peak. By May 12, we hope to add 1200 more ICU beds and another 15,000 oxygenated beds. Your Lordships have noted that 24 L per minute of oxygen is required for an ICU bed and 12 L per minute for the oxygenated bed. Accordingly, our projected demand is now 976 MT. The deputy chief minister has informed the Centre of the same", continued Mr. Mehra.

"Don't argue this here. Then, we will have to listen to all the states. The SG has assured that he shall look into it", intervened Justice Rao.

"He has said that he will ensure. Let us not query the pitch. We are all trying to use our good offices to find a solution", agreed Justice Chandrachud.

"I have also informed the highest quarters of the state of Your Lordships' observations and they have assured that the machinery shall do all in its power, as it has been doing so far, to tide over the crisis and save lives. We do not see this as a political battle. Please let them consider our demand for 976 MT", concluded Mr. Mehra.

"On April 20, the demand was 700, now 976...This is the problem with them...", commented the SG

"Let 700 be stabilised. We are not leaving Delhi in May We will be here should there be a problem", assured Justice Chandrachud.