[COVID-19] Baffling, mystifying, abuse of judicial power: Senior Advocate NH Seervai on Supreme Court's suo motu order

"These High Courts have displayed a humanity and empathy, sorely lacking in what the Supreme Court and its Chief Justice have done till date," Seervai writes.
Senior Advocate Navroz Seervai
Senior Advocate Navroz Seervai

Even by its own standards of interference with the functioning of the High Courts under the constitutional scheme as envisaged by the framers of our Constitution, the suo motu order passed on April 22, 2021 by the bench presided over by Chief Justice SA Bobde, when matters are pending in several High Courts pertaining to the unfolding catastrophe in the country caused by the gross mishandling, over the past several months, by the Central and various State governments of the COVID-19 pandemic, is to say the least, an abuse of judicial power.

This conduct is disturbing and disquieting for several reasons. First, it displays an arrogance of power, which ill-behoves the highest court in the land. Secondly, it reveals, however subliminally, rank contempt for and disregard of the High Courts in the country, and the extremely important and vital role they play in the constitutional scheme.

Several High Courts have recently passed emergent orders regarding the tragic and alarming situation of the pandemic ravaging the country, and have rightly pulled up and castigated the concerned governments, be it at the State level, or at the Centre. These High Courts have displayed a humanity and empathy, sorely lacking in what the Supreme Court and its Chief Justice have done till date, though it was well within their power to do something to try and mitigate the unfolding tragedy, not least by holding to account the concerned governments.

The reasons impelling the Chief Justice and his brother judges to suddenly and abruptly suo motu take up this issue, when these issues were pending in the High Courts, where strongly worded orders had already been passed against governments for their gross mishandling of the pandemic, are baffling and mystifying.

The reason given, namely, “….that the distribution of these essential services must be done in an even handed manner according to the advice of the health authorities…” is absurd, given that it is acknowledged the world over that each State, each city, each district grappling with this virulent pandemic have their own peculiarities which have to be taken into account.

From a medical and scientific point of view therefore, the pandemic can best be tackled locally and not at a “national” level. And did the Court even pause to consider: advice of which health authorities? State government’s health authorities, or only the Central government’s health authorities, or both? It is obvious to a person of the meanest intelligence that the Supreme Court’s order will only increase the prevailing panic and confusion and make confusion worse confounded.

Various Senior Counsel practicing in the Supreme Court have condemned this order in no uncertain terms. So too have various Bar Associations. They require to be commended for calling out the Supreme Court for passing this order, which is subversive of the role and position of the High Courts envisaged by the Constitution. I unhesitatingly join them in denouncing this order. The Supreme Court ought to pay heed to the universal condemnation its order has evoked. It ought to, if wiser counsel is to prevail, immediately revoke it, and let the High Courts go ahead with doing their job.

The author is a Senior lawyer based in Mumbai.

Disclaimer: The views expressed in the article are personal and do not necessarily reflect the views of Bar & Bench.

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