The Supreme Court of India on April 22, took suo motu cognizance of the crisis emerging from the second wave of the pandemic, particularly on issues like oxygen supply, essential drugs, vaccination and lockdowns. It indicated that all such cases being heard in the High Courts could be transferred to the apex court. This Supreme Court bench was composed of now-retired CJI SA Bobde, Justice L Nageswara Rao and Justice S Ravindra Bhat.
The reason cited by the Supreme Court for this move is the possible “confusion and diversion of resources\". The apex court in its written order expressed the concern that orders passed by the High Courts in different states could end up prioritising services to a certain set of people while slowing down the availability of those resources to certain other groups. In these circumstances, the Supreme Court has directed the centre, states, UTs and parties concerned to show cause why uniform orders should not be passed by the Supreme Court for the entire nation. The bench also asked the centre to submit a national plan to deal with this emergency.
The High Courts of Allahabad, Delhi, Bombay, Madras and Karnataka have been hearing cases related to the Covid crisis in their respective states for a week now. These courts have been critical of both the central and state governments for their inadequacies in handling the pandemic. The Allahabad High Court even went on to impose a lockdown in five districts of Uttar Pradesh. This was later stayed by the Supreme Court when approached by the state.
Harish Salve was appointed as the amicus curiae to assist the court in this case. However, Salve is known to have proximity with the current government and has also not been living in India. There’s also a conflict of interest as Salve represents Vedanta in the case concerning the Sterlite plant in Tamil Nadu. Following much criticism, Salve recused himself from the case asserting that he didn’t want the case to be heard under the shadow of aspersions.
Such indications by the Supreme Court to take over cases concerning the pandemic from the High Courts was widely criticized by lawyers all over the country. Critics included former President of the Supreme Court Bar Association Dushyant Dave, senior advocate Indira Jaising and former Attorney General of India Mukul Rohatgi among many others. They said the High Courts are better equipped to deal with cases at the local level. It was also added that the High Courts are independent and not subordinate to the Supreme Court.
Article 139A of the Constitution allows the transfer of certain cases from High Courts to the Supreme Court, but it is rarely invoked. The SC had done something similar last year when it suo motu took over the issue of the migrant crisis which was already being addressed by the High Courts. However, in the six substantial hearings of the case so far, the SC has only sought affidavits from states on the number of migrant workers and the plan and mechanism to transport them to their destination. The last time the case came up before the court was in September last year. Some states are even yet to file their replies in this case.
However, on his last working day, retiring CJI Bobde and the bench comprising Justices Rao and Bhat expressed displeasure at the misinterpretation of the SC’s move. The bench asked senior advocate Dushyant Dave why the order was being criticized for something that wasn’t even there in it and why motives were being imputed without the order being read. Dave, a critic of the move, responded that the perception of the critics was genuine as the apex court had done something similar before in the context of the migrant crisis. Justice Bhat intervened to clarify that the High Courts had not been stalled from proceeding with the cases and that the SC had actually asked the Centre to approach the High Courts.
Meanwhile, the concerned High Courts went ahead with the hearings despite the confusion arising from the SC’s move. The courts said that they would continue with the concerned proceedings as there was no transfer or stay order yet.