After Criticism, Supreme Court Says Never Stopped HCs from Hearing Covid Cases; Matter Adjourned

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Supreme Court of India

Lawyers, legal experts react angrily to sou moto cognizance of the apex court

Zafar Aafaq | Clarion India

NEW DELHI — After facing accusations of jumping in to rescue the Central Government by taking suo moto cognizance of Covid-19-related cases, the Supreme Court on Friday shot back at the critics saying that they never sought transfer of cases from High Courts or restrained them from issuing orders.

“There was criticism about something which was not there in order,” said Justice Rao of the three-member bench headed by Chief Justice S A Bobde.

The apex court’s move to take suo moto of the matters related to Covid-19 crises had evoked sharp criticism from top lawyers and legal experts who said that the apex court was  taking over the cases from the high courts who were issuing orders that slammed the Centre for failing to protect lives from the pandemic.

According to legal news website  Bar Bench, the apex court adjourned the matter for April 27 when the Solicitor General is supposed to file a reply on behalf of the Centre.

Addressing senior advocate and former Supreme Court Bar Association President Dushyant Dave who had severely criticised the Suo moto, Justice Rao said, “You have imputed motives to us without reading the order.”

Dave responded by saying that the entire country thought you were going to transfer the matter from the High Courts to the Supreme Court.

Justice Ravindra Bhat, the third member of the bench, told Dave: “We never said a word and did not stop the High Courts. We asked the Centre to go to High Courts and report to them. What kind of perception are you talking about?”

Chief Justice of India S.A. Bobde, who has reached the age of superannuation and has just one more day in office, on Thursday said that the court wishes to take suo motu arguing that various High Courts — Delhi, Bombay Sikkim, MP, Calcutta and Allahabad —  in different states are hearing matters related to Covid-19 pandemic, though done in best interest, has created “confusion and diversion of resource”.

The suo motu will deal with supply of oxygen, supply of essential drugs, vaccination process and power to declare lockdown.

The Supreme Court’s decision to intervene came following the orders by Delhi High Courts on Wednesday night ordering the Centre to ensure supply of oxygen to states where hospitals are facing acute shortage of oxygen while Covid-19 patients in thousands were gasping for breath in ICUs, on hospital beds, in ambulances and on pavements. “It is the government’s responsibility to provide oxygen to medical facilities,” the Delhi High Court told the Centre in the order passed in an urgent matter filed by Delhi’s Max Hospital which was running out of oxygen while treating 1,400 Covid-19 patients.

The suo moto was being criticised on two counts: that it was unnecessary to intervene; and that it appointed senior advocate Harish Salve Amicus Curiae.

Salve on Friday sought to recuse himself as Amicus Curiae in the matter. “It’s the most sensitive case this Court will look into. I don’t want this case to be decided under a shadow that I knew CJI from school and college and allegations being made or there is conflict of interest…” His recusal was allowed.

Critics had said that Salve was a non-resident Indian who could not understand the gravity of the situation  and that he was a school friend of Chief Justice Bobde.

“The High Courts were upholding the citizens’ right to life and holding the government to account,” wrote Gautam Bhatia, a constitutional expert and blogger on Twitter. “The Supreme Court has decided that it absolutely cannot be having that.”

He appreciated the Delhi High Court for deciding to hear the Max Hospital petition at 8PM on Wednesday. “The Delhi High Court did a wonderful job today,” Bhatia said.

Similarly, Mukul Rohatgi, former Attorney General of India, called the Supreme Court’s move a retrograde step. While speaking with legal website LiveLaw, Rohatgi said, “I completely disagree with the view of the SC. 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 Courts will become redundant now.”

Rohatgi also criticised the apex court for issuing ad-interim stay of Allahabad High Court order to lockdown five cities — Prayagraj, Lucknow, Kanpur, Varanasi and Gorakhpur —  in Uttar Pradesh, where the government has effectively failed to control the second wave of the epidemic.

Dave, the Supreme Court lawyer, came down heavily on the suo moto intervention saying that it was “unjustified and uncalled for” by the apex court to restrain the High Courts from doing their constitutional duty because first Supreme was sitting as silently as spectator while the writing was on the wall for it to intervene. “Therefore, the Supreme Court is unjustified in intervening when the High Courts have decided to intervene,” Dave told LiveLaw.

In another interview with YouTube Channel of journalist Faye D’souza, the angry Dave castigated the chief justice for spending months on Shapoorji Pallonji- Cyrus Mistry matter where Salve argued for Tatas and succeeded while Covid-19 wreaked havoc in the country. “There were far more important matters for you to decide that you just ignored.” He continued: “You don’t decide’ 370 (Article 370 of Jammu and Kashmir), you don’t CAA (Citizenship Amendment Act), you don’t decide the bail applications of thousands of citizens who are languishing in jails, you don’t decide about the Covid preparedness of the government but suddenly you hear the corporate giants matter and today and today you sou moto to show I want to do something. With great respect I say the Supreme Court has made a serious mistake in doing what it did today.”

Senior Advocate and Rajya Sabha MP Vivek Tankha took to Twitter to express his displeasure at the Supreme Court’s intervention as High Courts were better positioned to monitor at micro-level and their orders enjoy public faith. “SC is best suited to seek replies for the Union of India on COVID emergency 2021 including Oxygen emergency nationally,” he said.

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