Case: UNION OF INDIA Vs. RAKESH MALHOTRA &amp; ANR

data in regard to the quantity of oxygen which has been allocated to NCT of Delhi since 28 April 2021. The figures which have been indicated before the Court are as follows: 28 April 2021 - 431.26 MT 29 April 2021 - 409.38 MT 30 April 2021 - 324.63 MT 1 May 2021 - 422.04 MT 2 May 2021 - 447.59 MT 3 May 2021 - 433.09 MT 4 May 2021 - 555.01 MT17. The data which has been provided by the Senior Counsel for GNCTD suggests 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 is yet to be achieved. 18. Mr Piyush Goyal, learned Additional Secretary, drew the attention of the Court to the fact that there was a drop in the supply on 30 April 2021 as a result of the non-availability of a specified source of supply. 19. At the outset, it needs to be clarified that the reason why this Court has been persuaded to take up these proceedings during the pendency of the contempt proceedings in the High Court is because recourse to the contempt jurisdiction against two officers (one of whom, Ms Dawra, has tested COVID-19 positive but continues to attend to her duties while in isolation) will not in itself resolve the problem which is confronting NCT of Delhi. At this stage, when the country is faced with a serious pandemic, the effort of the Court must be to facilitate problem solving by the active engagement and cooperation of all stake holders. The High Court of Delhi has been engaging with the situation virtually on a day to day basis and has been considering diverse aspects of the matter. The contempt notice is an expression of its anguish. The issue of the availability of oxygen for NCT of Delhi has to be resolved bearing in mind the availability of oxygen in the country so that suitable arrangements are made for allocation, transportation from the point of supply and distribution within the city. The Union Government cannot be oblivious to the urgent need and demand for oxygen to meet the requirements of the NCT of Delhi. It is with that end in view that this Court by its order dated 30 April 2021 directed the allocation of 700 MT of oxygen per day to NCT of Delhi. The effort to persuade the High Court that there was in fact no such direction by this Court was an evident attempt at legal disingenuity and has been correctly rejected. The Solicitor General has not pressed such a submission in these proceedings. 20. After hearing the submissions of the learned counsel as well as of Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior Counsels, who have appeared as amicus curiae, it appears to the Court that the problem has four dimensions. 21. The first aspect of the problem is the methodology or formula which is being employed by the Union Government for computing the requirement of oxygen to the States and the Union Territories. As we have noted earlier, the formula which has been arrived at by the expert group is on the basis of a certain requirement of oxygen per minute for ICU and non-ICU beds and the patient load. It is on the basis of this formula that an allocation is being made for diverse areas of the country. In view of the experience which has been gained since the formula was adopted, it would be necessary for the Central Government to look at the formula afresh and to determine as to whether it needs to be altered having regard to the specific requirements of areas such as NCT of Delhi which have been seriously affected by the second surge of the pandemic. For instance, one aspect which needs to be underlined is that the requirement of oxygen is tagged to the number of beds, both ICU and non-ICU beds. 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. Hence, it would not be adequate to make an assessment of the quantity of oxygen required based exclusively on the formula which has been used thus far by the Central Government. While we have underscored this aspect, this is certainly a matter which would need to engage the fresh attention of a body of experts who may determine whether any change or modifications are required to meet the exigencies of a rapidly deteriorating situation. 22. The second aspect of the matter is the requirement of managing the resources of oxygen so as to optimize the availability of the NCT of Delhi. This would be dependent on the efficiency of the supply chain and a proper distribution of oxygen from the supply points up to the hospitals. Another aspect under this sub-head, which has already been emphasized by the order of this Court dated 30 April 2021 is the requirement of building up proper stocks of oxygen so that in the event of an emergency, alternate buffer stocks are available to prevent deaths due to the disruption of supplies. 23. The third aspect which needs to be emphasized is the actual availability of oxygen. We are inclined to reflect further on the submission which has been urged on behalf of the Union of India by the Solicitor General that some modalities may be put into place to carry out a scientific audit of the requirement of the NCT of Delhi. Whether the audit results in revealing a higher requirement than what has been indicated in the order of this Court dated 30 April 2021 will be seen. At this stage, it has emerged before the Court that efficient administrative modalities were placed into operation by the Municipal Corporation of Greater Mumbai during the second wave of the COVID-19 pandemic.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19. At the outset, it needs to be clarified that the reason why this Court has been persuaded to take up these proceedings during the pendency of the contempt proceedings in the High Court is because recourse to the contempt jurisdiction against two officers (one of whom, Ms Dawra, has tested COVID-19 positive but continues to attend to her duties while in isolation) will not in itself resolve the problem which is confronting NCT of Delhi. At this stage, when the country is faced with a serious pandemic, the effort of the Court must be to facilitate problem solving by the active engagement and cooperation of all stake holders. The High Court of Delhi has been engaging with the situation virtually on a day to day basis and has been considering diverse aspects of the matter. The contempt notice is an expression of its anguish. The issue of the availability of oxygen for NCT of Delhi has to be resolved bearing in mind the availability of oxygen in the country so that suitable arrangements are made for allocation, transportation from the point of supply and distribution within the city. The Union Government cannot be oblivious to the urgent need and demand for oxygen to meet the requirements of the NCT of Delhi. It is with that end in view that this Court by its order dated 30 April 2021 directed the allocation of 700 MT of oxygen per day to NCT of Delhi. The effort to persuade the High Court that there was in fact no such direction by this Court was an evident attempt at legal disingenuity and has been correctly rejected. The Solicitor General has not pressed such a submission in these proceedings.20. After hearing the submissions of the learned counsel as well as of Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior Counsels, who have appeared as amicus curiae, it appears to the Court that the problem has four dimensions.21. The first aspect of the problem is the methodology or formula which is being employed by the Union Government for computing the requirement of oxygen to the States and the Union Territories. As we have noted earlier, the formula which has been arrived at by the expert group is on the basis of a certain requirement of oxygen per minute for ICU and non-ICU beds and the patient load. It is on the basis of this formula that an allocation is being made for diverse areas of the country. In view of the experience which has been gained since the formula was adopted, it would be necessary for the Central Government to look at the formula afresh and to determine as to whether it needs to be altered having regard to the specific requirements of areas such as NCT of Delhi which have been seriously affected by the second surge of the pandemic. For instance, one aspect which needs to be underlined is that the requirement of oxygen is tagged to the number of beds, both ICU and non-ICU beds. 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. Hence, it would not be adequate to make an assessment of the quantity of oxygen required based exclusively on the formula which has been used thus far by the Central Government. While we have underscored this aspect, this is certainly a matter which would need to engage the fresh attention of a body of experts who may determine whether any change or modifications are required to meet the exigencies of a rapidly deteriorating situation.22. The second aspect of the matter is the requirement of managing the resources of oxygen so as to optimize the availability of the NCT of Delhi. This would be dependent on the efficiency of the supply chain and a proper distribution of oxygen from the supply points up to the hospitals. Another aspect under this sub-head, which has already been emphasized by the order of this Court dated 30 April 2021 is the requirement of building up proper stocks of oxygen so that in the event of an emergency, alternate buffer stocks are available to prevent deaths due to the disruption of supplies.23. The third aspect which needs to be emphasized is the actual availability of oxygen. We are inclined to reflect further on the submission which has been urged on behalf of the Union of India by the Solicitor General that some modalities may be put into place to carry out a scientific audit of the requirement of the NCT of Delhi. Whether the audit results in revealing a higher requirement than what has been indicated in the order of this Court dated 30 April 2021 will be seen. At this stage, it has emerged before the Court that efficient administrative modalities were placed into operation by the Municipal Corporation of Greater Mumbai during the second wave of the COVID-19 pandemic.