Senior Lawyers Criticise SC Move To Take Over COVID-Related Cases From HCs

Calling the move a ‘retrograde step’, former AG Mukul Rohatgi said, ‘Local problems and the solutions can be best addressed by high courts. High court will become redundant now.’

New Delhi: Senior lawyers have widely criticised the Supreme Court’s decision to take over the issues related to the COVID-19 pandemic from the high courts, LiveLaw reported.

Chief Justice of India S.A. Bobde on Thursday said various high courts have been hearing cases on the COVID pandemic situation, which may lead to confusion, and all of these cases may be withdrawn to the Supreme Court.

“We as a court wish to take suo motu cognisance of certain issues. we find that there are six high courts – Delhi, Bombay Sikkim, MP, Calcutta and Allahabad. They are exercising jurisdiction in best interest. But it is creating confusion and diversion of resources,” the bench noted, according to Bar and Bench.

The apex court will cover four issues including supply of oxygen, supply of essential drugs, method and manner of vaccination and power to declare lockdown, the report said.

The move came after high courts of Delhi and Mumbai made urgent interventions to ensure supply of oxygen to the states for the treatment of COVID-19 patients. The Delhi high court even slammed the Centre over the delay in providing oxygen supplies and said, “It is the government’s responsibility to provide oxygen to medical facilities.”

Also read: CJI S.A. Bobde’s Legacy: Two Orders That Could Reduce Pendency in HCs

SC move a “retrograde step”

Calling it a retrograde step, senior advocate and former attorney general of India Mukul Rohatgi told LiveLaw: “I completely disagree with the view of the Supreme Court. High courts are competent to deal with the issue as it unfolds in the concerned state. Local conditions and local problems and the solutions can be best addressed by them. It’s a retrograde step. High court will become redundant now.”

Earlier this week, the top court stayed the Allahabad high court direction to the Uttar Pradesh government to impose a complete lockdown in those districts where COVID-19 has spread at an alarming rate.

Rohatgi called the Supreme Court decision in the matter “wrong”.

Senior advocate and former president of the Supreme Court Bar Association Dushyant Dave told LiveLaw that high courts are independent, and not subordinate to the Supreme Court.

Terming the apex court’s move as “absolutely uncalled for and unjustified”, Dave said, “…the Supreme Court, if at all it was concerned about the citizens, should have intervened suo moto earlier to ensure that the government was functioning properly and that adequate hospitals, vaccines, medicines, oxygen supplies were available for COVID patients. The government has been sleeping and the Supreme Court also has been sleeping unfortunately over this period. Therefore, morally Supreme Court is unjustified in intervening when the high courts have decided to intervene.”

On the top court’s appointment of Harish Salve as amicus curiae in the case, Dave told the news website: “There is no reason why Mr Salve should again and again be appointed by Chief Justice Bobde as amicus curiae. Particularly because, Mr. Salve is not in India. He has been a non-resident and living in London for a long time. He does not know the realities of India.”

Dave also questioned the Supreme Court’s move asking whether it is to “help the government for it to hide its failures”.

Senior advocate Sanjay Hegde told the news website that the apex court’s intervention is likely to undermine the efforts taken by the high courts with regard to holding the state governments accountable for COVID management.

“Those state governments may now feel emboldened to resist high courts that seem determined to hold their COVID response to strict constitutional scrutiny,” Hegde said.

Also read: COVID-19 Increased Pendency of Cases at All Levels of Judiciary

Calling it “unfortunate”, senior advocate and former judge of the Patna high court Anjana Prakash asked: “What was the illegality in the high court order? As far as I know, despite the hierarchical system of courts, the high court is not a subordinate court of the Supreme Court whose every order has to meet the approval of the Supreme Court, as would be required in the bureaucracy. Therefore, many in legal circles see the interference akin to the manner in which a superior officer in the bureaucracy gives orders to a subordinate.”

Senior advocate Chander Uday Singh told LiveLaw, “That the Supreme Court should consider itself capable of supervising life and death situations in diverse States, in the same time frame as the concerned high courts are doing, speaks either of supreme hubris, or of supreme indifference to horrendous human suffering.”

Senior advocate Vivek Tankha told the news website that high courts are better equipped to monitor the pandemic situation at the micro level and that the Supreme Court is best suited to deal the pandemic situation nationally. “The Supreme Court has neither time nor details to deal with challenges facing states, ” Tankha tweeted.

Senior Advocate Ravindra Shrivastava in a tweet said the high courts are as competent as the Supreme Court and that they should be trusted.

Shrivastava also criticised the Supreme Court for appointing an amicus curiae in the matter, saying, “Supreme Court chooses an amicus over the AG (attorney general) to seek assistance. Notice to AG should have gone,” he said in a tweet, which was retweeted by senior advocate Indira Jaising.