As oxygen shortage continues, SC allows Vedanta to operate Tuticorin plant to meet 'national need'

The Supreme Court on Tuesday allowed Vedanta to operate its closed oxygen plant at Tuticorin in Tamil Nadu, saying the order has been passed in view of "national need" for oxygen and there should be no “political bickering” over the generation of the gas by the company as the country is facing a "national crisis".

The apex court made it clear that Vedanta shall not be allowed to enter and operate its copper smelting plant under the garb of this order and that permission to operate the oxygen plant would not create any equity in the company's favour.

A bench of justices DY Chandrachud, L Nageswara Rao and S Ravindra Bhat directed the Tamil Nadu government to form an oversight committee to oversee the functioning of the plant which would include District Collector and Superintendent of Police (SP) of Tuticorin, District Environmental Engineer, Sub-Collector Tuticorin and two government officials.

The bench asked Vedanta to submit a list of technical and non-technical staff to the committee who are essential to run the oxygen plant.

It said the order allowing Vedanta to operate its oxygen plant would be in operation till 31 July, 2021, after that it will assess the ground situation of the COVID-19 pandemic.

While submissions were being made raising various issues connected with the plant, the bench said, “We are in a national crisis today where people are dying due to the lack of oxygen."

"There cannot be political bickering in this Court. We are in a national crisis, we have to support the nation as a court. It's a national calamity," it said.

The top court also directed the Ministry of Environment and Forests to form a three-member panel of environmental experts from Tamil Nadu.

“The victims of the Vedanta crisis can choose two out of them to be in the committee. If the victims fail to nominate such members within 48 hours, the State should nominate the members,” it said.

At the outset, senior advocate CS Vaidyanathan, appearing for Tamil Nadu, told the bench that the government held a meeting with all political parties and agreed to the resumption of medical oxygen production at Vedanta's sealed Sterlite Copper plant in view of the massive spread of COVID-19 infection in the State.

He submitted the oxygen plant can be allowed to operate for four months but considering the trust deficit among people in Vedanta certain safeguards are necessary.

“Vedanta will be allowed only to reopen the oxygen plant. It cannot start its copper smelting operations. The operation will be under monitoring of the government committee,” he said.

The senior advocate said the priority should be given to the state government with reference to oxygen supply and surplus can be given to other states.

His submission was opposed by Solicitor General Tushar Mehta who said that the allocation of oxygen falls within the power of the Centre.

“I am not concerned in dispute between the state and Vedanta. There is a facility available and the facility is unutilised. Whatever oxygen is manufactured should be for health purposes and be given to the Centre and allocated to every state too.

“If there is a big surge in some state, then we may have to send a bit more to that particular state. Let the oxygen be given to the Centre for state-wise allocation,” Mehta said.

The apex court said it was seized off the matter and in case any intervention is required, the Tamil Nadu government can approach it.

Senior advocate Colin Gonsalves, appearing for the organisation of affected families, contended that he is not averse to the idea of oxygen production but the history of litigation shows Vedanta has tried several times to restart the plant and take people inside.

The bench then said, "We are not hearing an appeal against Madras High Court order. We are only dealing with restarting the oxygen plant.”

The apex court said it was aware of the concerns of the local community with regard to the re-opening of the plant.

Additional Advocate General for Tamil Nadu Balaji Srinivasan said there is a need for members of the local community to be included in the committee that will oversee the functioning of the oxygen-producing plant.

As per Bar and Bench, the court, concluding the hearing, said, "Nation stands together in this moment. At present, Tamil Nadu's oxygen demands are met. In case of any future need, they can approach us for changes."

On 23 April, the top court said people are dying due to lack of oxygen, and questioned the Tamil Nadu government on why it can't take over Vedanta's Sterlite copper unit at Tuticorin, closed since May 2018 over pollution concerns, for producing oxygen to treat COVID-19 patients.

It was hearing Vedanta's plea seeking opening of its Sterlite copper unit at Tuticorin on the ground that it would produce thousand tonnes of oxygen and give it free of cost to treat patients.

The apex court on 2 December, 2020, rejected the plea of Vedanta that it be permitted to inspect its Sterlite copper plant and to operate it for a month to assess the pollution level.

Vedanta had sought handing over of the plant for three months saying it requires two months to start the unit and the company should be allowed to run it for four weeks to ascertain whether it's polluting or not.

Vedanta, in August last, moved the apex court challenging the Madras High Court order refusing to allow the reopening of the Tuticorin plant.

The high court had upheld the orders of the Tamil Nadu Pollution Control Board (TNPCB) directing the closure of the unit in May 2018.

Vedanta had approached the high court in February 2019, seeking to reopen the Sterlite plant which was closed following a 23 May, 2018, order issued by the TNPCB in the backdrop of violent protests against the unit which left 13 people dead in police firing on 21 and 22 May.