Delhi HC questions Centre on delay in diversion of oxygen from industries to medical use

The Court expressed concern over multiple pressing issues affecting people’s lives including production of drugs, supply of oxygen, import of medical equipment and vaccine wastage

The complete order may be read here:

The Delhi High Court has issued a slew or emergent directions to the Central government to ramp up oxygen supply, production of drugs and avoid wastage of vaccines. The bench of Justices Vipin Sanghi and Rekha Palli was particularly concerned with the dramatic shortage of oxygen in Delhi and questioned the Centre why the order for diverting oxygen for industrial use to medical use was being implemented from April 22 when the need for the same was urgent.

Beds and ventilators

In terms of the order passed by the court on April 19, the Ministry of Health filed an affidavit stating that 250 ICU beds have been operationalised by DRDO and another 250 beds shall be operationalised by April 22. Further, 763 ventilators have been supplied to NCT government and a total of 4,091 beds have been made available. The Ministry also called upon the States and Union Territories to provide their requirements for Ventilators so that the Centre can consider supplying them.

Rahul Mehra appearing for GNCTD stated that last year Centre had made 4,112 beds available for COVID patients in its hospitals and currently the number of COVID positive patients are four times of the cases last year and hence it should be allocated more beds. Roli Khare, Director, Ministry of Health and Family Welfare stated that presently the hospitals of the Central Government are occupied by non-covid patients in need of critical care but the government is endeavouring to make more beds available.

The court directed Centre to look into the aspect of bed allocation for COVID patients keeping in view the prevailing circumstances and report on the same at the next hearing, on April 22.

Oxygen supply

Further, it was brought to the court’s notice that oxygen availability has dropped dramatically in hospitals. The court was informed that Oxygen supplies in various Covid hospitals in Delhi, including Sir Ganga Ram Hospital, and Max Hospital are about to get exhausted in the next about 4-8 hours

Dr. Nipun Vinayak, Joint Secretary, Ministry of Health and Family Welfare explained that the Department for Promotion of Industries and Internal Trade (DPIIT) is looking into the aspect of diversion of Oxygen from industrial use for medical use in view of the urgent need of Oxygen and that daily allocation of oxygen to Delhi is 378 MT per day. Mehra submitted that the requirement was about 700 MT per day.

The court expressed its annoyance that the Central government had diverted tis decision to divert supplies of oxygen from industries to medical use from April 22 onwards. “We do not find any justification for the same. The need for oxygen is now. Any delay in this regard would lead to loss of precious lives,” the court said.

“We, therefore, direct the Central Government to implement the said decision forthwith, and make available oxygen to hospitals which are running out of their supplies, lest there is grave loss of life suffered by patients being treated threat,” the court ordered.

Further as the court had directed M/s INOX  to supply 140 MT oxygen to Delhi as per contract was not followed through as they feared law and order situation in case oxygen is supplied from UP to Delhi. The court thus directed that a contempt notice be issued to INOX and directed the Managing Director as also Chief Secretary, UP to personally remain present during the next hearing, April 22

When the court was informed that some other industries including Steel and Petro-Chemical industries were still allowed to use oxygen for industrial use.

“Looking to the serious and emergent situation, we call upon the Central Government to seriously consider issuing appropriate orders in respect of the Steel and Petro-Chemical industries, so that a balance can be maintained between the needs of the people at large – who are suffering from COVID and are serious, and the needs of the industries,” the court stated. The court said it expected Centre to urgently hold a meeting with all stakeholders including from the Steel and Petro-Chemical industries, so that sufficient portion of the Oxygen produced by these industries could be diverted for medical needs for the period required to tide over the prevailing medical emergency.

The court also directed the government to ensure that the designated hospitals set up Pressure Swing Adsorption(PSA) plants for production of oxygen for which the Centre had sanctioned funds in December 2020. The court also directed Centre to review the allocation of Oxygen on a dynamic basis i.e. on a day to day basis, so that its utilization is achieved in the most efficient manner keeping in mind the emerging trend of COVID cases across the country.

Medical equipments and drugs

The court also directed Central government to issue necessary directions to ensure that medical equipment/ machines for which import orders have been placed be cleared by Customs on priority. The court also directed Indian Council for Medical Research (ICMR) to give top priority for clearance to be given for setting up Covid testing facilities.

The court was also informed that despite persons getting tested providing Aadhar details while testing, the labs had to manually fill up digital forms which is time consuming. The court thus directed the Central Government, and the ICMR, to review the form in which the information is required to be uploaded by the testing agencies, so as to reduce their burden and wastage of time, as this appears to be acting as a bottleneck in the matter of preparation of reports.

The court ahs also directed Centre to immediately reach out to the manufacturers to all drugs that are required for COVID treatment so as to forthwith ramp up the production capacities on a war footing. The court said that the Centre should invoke its powers under the Patents Act and take all necessary action to ensure production increases.

“The lives of the people take priority over everything else. Even if such like powers are exercised, the patent holders/ manufacturers can be adequately compensated by fixation of fair license fee. The Central Government should swing into action in terms of this order in this regard without any delay, and report progress on the next date of hearing,” the court ordered.

On the issue of black marketing of drugs, the court directed Drug Controller of India, to issue necessary directions and to take strict penal action against offenders.

The court also pushed the Central government to modify its policy for vaccination as 44 lakhs vaccines have been wasted out of the 10 crores vaccines allocated to different States due to the age restriction on getting vaccine. The court was informed that each vial of the vaccine has 10 doses. Once the vial is opened, it has to be either fully consumed, or the remainder goes waste hence the court urged the Centre to devise ways so that people below age 45 and above age 18 can get residual doses of vaccine so as to avoid wastage.

The complete order may be read here:



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