The Supreme Court on Thursday said it will not allow the top court of the country to become a ground of recrimination between the Centre and the Delhi government as they indulged in a blame game on the issue of allocation and supply of oxygen to the national capital,
A bench of Justices DY Chandrachud and M R Shah warned both Solicitor General Tushar Mehta, appearing for the Centre, and senior advocate Rahul Mehra, representing the Delhi government, and said everyone should work in a cooperative manner.
"We are making it clear that this is not an adversarial litigation. We are not going to allow this constitutional court to become a ground of recrimination between two governments. We won't allow any recrimination to be made against Delhi government or the Central government. All we want is that everyone should work in a cooperative manner," the bench told Mehta and Mehra.
Mehra, claiming not to be adversarial, said the Centre did not allocate the requisite amount of oxygen to Delhi even after the top court's direction, and that even on Thursday, the supply is not 700MT as per their estimates.
He said the Centre has tried to put the Delhi government in the dock in every affidavit they have filed before the courts, and he also claimed that other states such as Madhya Pradesh and Punjab were given more oxygen than their demands.
At the outset, Mehta told the bench that the Centre has complied with the top court's order and instead of 700 MT oxygen ordered, it had ensured a supply of 730 MT to Delhi on Wednesday for treating Covid-19 patients.
He said that a survey was conducted in 56 major hospitals of the national capital on May 4 and it found they had a significant stock of liquid medical oxygen (LMO).
Mehta said he is not blaming anybody, but added that unloading of oxygen tankers brought to Delhi is taking too long which is not ideal as these specialised vehicles need to be sent back for refilling to the eastern corridor.
He said that two Oxygen Express trains are in transit but keeping the pan India situation in mind, if the Centre keeps on giving 700MT of oxygen to Delhi, it will deprive other states of equitable distribution as the demand of 700MT is not correct.
Mehra said the Centre has said in its affidavit filed in the top court that there is no dearth of oxygen in the country and they have a reserve of 16,000 MT, and hence giving a deficit 210 MT of oxygen will not make other states suffer.
He said the Centre has accepted that Delhi has made the demand of 700 MT of oxygen, but still only 510MT of the gas was supplied to them and they have information that despite supplying 730MT on Wednesday, the supply is being brought down to 566MT.
"This court should not allow the supply to be brought down as it will be in violation of the court's April 30 order and we must say that it is not followed in letter and spirit. This court should ensure that the supply is maintained at 700MT," Mehra said.
He said that people are dying in Delhi for a shortage in supply of Oxygen to hospitals, and the Centre should not be allowed to dilute the supply either directly or indirectly and the solemn assurance given by the Union government to court that the demand of gas will be met shall be followed.
"If an audit of Oxygen supply is to be made, then it should be done on the allocation policy of the Centre which in our view is arbitrary. The audit of tankers should also be done as these vehicles are national assets," he said, adding that there should also be no allocation on just papers.
Mehra added that many COVID-19 patients may need more oxygen then contemplated by the Centre whether for Oxygenated beds or non-Oxygenated beds and actual allocation and requirement has to be seen.
"If at all a committee is to be formed for auditing the supply and demand of Oxygen, it should have representatives from top five-affected states," Mehra said, adding they have started installing GPS on tankers to track the vehicles.
He said the Delhi government is also in the process of developing an app by which a COVID-19 patient in home requiring refilling of oxygen cylinders can register himself-herself and make a request after which the administration will deliver it.
"There should not be any presupposition that there is a certain government in the state and it is not doing its job. We are trying to do everything possible at our end," Mehra said, adding that if the allocation policy of the Centre is not arbitrary then there is nothing to hide.
For the Centre, Mehta told the bench that despite claiming to be not adversarial, the Delhi government counsel has made the issue adversarial and "it would make me small if a response to all the allegations made. I would not like to indulge in such arguments as I have to think of all the states."
He said that Mehra has made the issue Centre versus Delhi fight. The allocation policy of oxygen was formulated after a detailed analysis and proper application of mind, he said.
"I have said that there was systematic failure in Delhi for non-supply of Oxygen. It does not mean that we have anything against the state government or the political leadership. Delhi is not only the capital of the country but also its face. It has special status," Mehta said.
Amicus Curiae senior advocates Jaideep Gupta and Meenakshi Arora said that a futuristic plan needs to be prepared on a scientific basis and to make sure that country does not grapple when a third wave of COVID strikes.