The Supreme Court’s decision to take suo moto cognisance of all the Covid-19 crisis in the country, especially over issues related to oxygen supply, medicines, vaccination programs, including withdrawing cases from high courts has drawn flak from the legal fraternity. Several senior advocates have raised their voices and even the Supreme Court Bar Association (SCBA) has spoken up against it.

The bench of Chief Justice of India SA Bobde and Justices L Nageswara Rao and Ravindra Bhat appointed Senior Advocate Harish Salve as amicus curiae in the matter stating that the cases before all the high courts were causing confusion. The apex court has issued notice to Centre, states and Union Territories and parties who have approached the high courts to show cause why uniform orders should not be passed by the Supreme Court in these Covid related issues. Notably, CJI Bobde is set to retire from his post today.

Many senior members of the legal fraternity were reached out to by LiveLaw about their views on the Supreme Court’s move. Mukul 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". He also criticised the apex court’s move to stay Allahabad High Court’s order imposing restrictions in 5 cities.

Dushyant Dave, former President of the Supreme Court Bar Association said, “The Supreme Court's suo moto intervention seeking to restrain the High Courts from discharging their constitutional duties is absolutely uncalled for and unjustified”. He said that the apex court had been a silent spectator until now and should have intervened earlier. He said that “morally Supreme Court is unjustified in intervening when the High Courts have decided to intervene”. He also pointed fingers at appointing Harish Salve as amicus curiae as Salve has been a non-resident and has been living in London for a long time and does not know realities of India. He pointed out that Salve was a childhood friend of CJI SA Bobde and also has a conflict of interest as he represents big industrial houses like Strelite.

He also stated that high courts are in a better position to know local conditions and the Supreme Court has no business interfering in high courts’ functioning. “Supreme Court's intervention, far from aiding the citizens and protecting their right to life, is likely to result in loss of lives and in violation of Article 21. The Supreme Court will be well advised to back off,” he continued. He asked, “It is a very serious issue why the Supreme Court has intervened. Is it to help the government for it to hide its failures?” 

Another Senior Advocate Anjana Prakash called it an “unfortunate” move. She pointed out that high courts are not subordinate courts of the Supreme Court. “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,” she added.

Senior Advocate CU Singh expressed surprise over the Supreme Court’s move that it should “seek to step into six separate proceedings being heard on a war footing by six high courts across the country”.

Senior Advocate Ravindra Shrivastava said that in a federal structure, the High Courts are as competent and have jurisdiction as the Supreme Court, perhaps wider. "They should be trusted", he said in a tweet

SCBA moves court

The SCBA has filed an application urging the Supreme OCurt to allow high courts to deal with the Covid related issues at local level. In the application, the SCBA has stated that high courts are best suited to deal with local issues such as lack of oxygen supplies, unavailability of hospital beds etc.

“High courts, situated almost invariably in the capital of the states, are in a better position to seek immediate reports from the local administration and pass directions and orders for immediate removal of difficulties arising in treatment of the infected patients depending upon local emergent situation. The state machineries are lacking on various aspects and Hon’ble high courts are suitably dealing with issues prevailing at local level within their territorial jurisdiction,” the application states as per LiveLaw. However, the SCBA stated that issues like inter state movement of supplies, movement of migrant labourers are issues that could be dealt with by the Supreme Court.

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SC takes suo motu cognisance of Covid-19 crisis, to withdraw cases from all HCs