Decoded: Why Supreme Court wants oxygen policy revised amid Covid-19

LMO, or medical grade oxygen, is not usually a controlled product but because of the pandemic, the Centre assumed the powers to direct supply from all producers

Before the pandemic, the total demand for medical oxygen in the country was 700 tonne per day (tpd). Given the Covid crisis and the consequent requirement for oxygen, today Delhi alone is asking the Union government for 700 tpd. During the first wave of Covid-19 last year, the overall demand for liquid medical oxygen (LMO) in India had increased four times, to 2,800 tpd. But how is oxygen quota set and why does the Supreme Court want the government’s oxygen policy revised? Let’s find out.
 
Who decides on matters related to oxygen production and supply?
 
On March 29, 2020, the Union government formed 11 empowered groups for handling various issues to combat the Covid pandemic. These groups were restructured in September 2020 into five. Of these, the empowered group 2 (EG2) headed by Guru­prasad Mohapatra, secretary, department for promotion of industry and internal trade, was given the responsibility of en­suring the availability of essential medical supply, including oxygen, across the country. The group has members nominated from all the states along with all major oxygen manufactures, All India Industrial Gases Manufact­urers’ Association (AIIGMA), Petroleum and Explosives Safety Organization (PESO), the Ministry of Road Transport and the Indian Railways. While medical oxygen is not a controlled commodity, the prices are controlled by the National Pharmaceutical Pricing Authority since September 2020.

 

What is the formula on which states are allotted oxygen quota?
 
An expert group comprising V K Paul, member, Niti Aayog, Randeep Guleria, director, All India Institute of Medical Sciences (AIIMS), as also the director general of the Indian Council of Medical Research (ICMR) and director general, health services, was formed to compute the pan-India requirement of oxygen. This group devised a formula based on a certain requirement of oxygen per minute for intensive care unit (ICU) and non-ICU hospital beds. The allocation is made to the states depending on the number of such beds. According to this formula, 50 per cent of the non-ICU beds need 10 litre of oxygen per minute while all ICU beds require 24 litre per minute.

 
Based on this formula, what is Delhi’s share?
 
Solicitor General Tushar Mehta argued earlier this week in the Supreme Court that the optimal demand of the Delhi government should be 415 tonne and not 707 tonne. He said since 50 per cent of the non-ICU beds need oxygen, only 8,136 non-ICU beds in Delhi required oxygen at the rate of 10 litre a minute. This translates to 152 tonne of oxygen. Since all ICU beds need 24 litre oxygen a minute, so the requirement for ICU beds in Delhi is 268.3 tonne. The total, therefore, comes to less than 425 tonne. “The figure of 707, which the Delhi government calculated, does not reflect any justification. Every state had demanded more but the allocation is on the basis of this formula,” he argued.

 
What is wrong with the expert group formula?
 
A Supreme Court bench of Jus­tices D Y Chandrachud and M R Shah observed on Wednes­day that the purpose was not to find fault with the expert group or the Union of India, but that the central government should rethink the formula and determine if further consi­deration is required to meet specific req­ui­rements. The formula leaves out individuals who are at home and require oxygen support. It also does not take into account the addition of new beds, which could be made if more oxygen is available. There are also individuals in need of oxygen who are not in a hospital environment, the court said, though Mehta had put forward that the formula calculated the oxygen requirement based not only on the number of beds but also the number of active cases in a state.

 
So has the Delhi quota been increased?
 
The Supreme Court bench, hearing a petition filed by the Central government against the show-cause notice issued by the Delhi High Court for contempt action for failing to supply 700 tpd oxygen to the National Capital Territory of Delhi, ordered that the Union government increase the Delhi quota. Though this increased volume of 700 tpd is not likely to come down since the situation is being monitored by the apex court, the Union government continues to decide which state gets how much.
 
Why is the Union government deciding on state oxygen quota?

 
The Centre has powers under the Disaster Management Act to take decisions relating to Covid-19. LMO, or medical grade oxygen, is not usually a controlled product but because of the pandemic, the Union government assumed the powers to direct supply from all producers. So, even if a state has an oxygen producing unit, like a big steel plant within its geographical boundary, it cannot use the product unless it is allotted to it by the Union government. On April 22, Union Home Secretary A K Bhalla issued an order that said, “No restriction shall be imposed on the movement of medical oxygen between the states and transport authorities shall be instructed to accordingly allow free inter-state movement of oxygen carrying vehicles.” The instruction followed reports that the Haryana and Uttar Pradesh administrations were preventing the movement of oxygen tankers to Delhi. States and union territories were asked to abide by the supply plan of medical oxygen prepared by EG2.