[Suo motu case on COVID-19] Supreme Court "will delay relief", "why have High Courts at all?" Bar Association heads react to top court order

Even as at least nine High Courts have taken up COVID-19 related issues for hearing, the Supreme Court on Thursday registered a suo motu case concerning issues arising out of the management of the crisis unfolding in various states..Substantiating the reason behind taking suo motu cognizance, the top court stated in its order passed today,"High Courts have passed certain orders which may have the effect of accelerating and prioritising the services to a certain set of people and slowing down the availability of these resources to certain other groups whether the groups are local, regional or otherwise.".[BREAKING] Supreme Court takes suo motu cognizance of COVID-19 issues, might transfer cases from High Courts; Harish Salve appointed Amicus .However, Bar Association representatives from various States opined that the suo motu case registered by the Supreme Court will only lead to delays in providing relief to those affected across the country..Bar & Bench spoke to prominent members of State bar associations as well as the Supreme Court Bar Association to garner their reactions to the top court's order..Senior Advocate Vikas Singh, President of Supreme Court Bar Association."There was no occasion to start a suo motu proceeding as the problem faced by each State is different. Supreme Court had already issued detailed guidelines to each State in 2020 on COVID management and implementation was to be done at the State level, so the High Courts were best equipped to deal with it.Moreover, Supreme Court has been the most inaccessible court in the country due to suspension of mentioning during the entire pandemic. Hence, hearing this matter by Supreme Court was even otherwise inappropriate.Lastly, the hearing in any High Court is a proper open court hearing where the Registry does not have the right to mute lawyers, unlike in the Supreme Court, which cannot be considered as open court hearing.".Senior Advocate Mohit Mathur, President of the Delhi High Court Bar Association."The Supreme Court is definitely entitled to take suo motu cognizance. But as a concerned President of the Bar and member of the Bar, I do not think High Courts were wrong. Ultimately, the High Courts are cognizant of what is happening in their own areas. The High Courts were better off in handling it at their own level. When you are looking at the larger picture, the necessary exigencies and emergencies somehow tend to get a backseat. Even the Allahabad High Court felt some restrictions should be there in five cities and the Supreme Court felt otherwise. Regarding Amicus Curiae, Mr Harish Salve appeared for Serum Institute of India in Delhi and Bombay High Court. So I felt such a seasoned man would have declined to accept this role.".Nitin Thakker, President of the Bombay Bar Association."Cognizance has been taken by almost all High Courts where an impression has been created that the government is not taking adequate steps. This is with regard to either shortage of oxygen or Remdesivir.I had read on Bar & Bench that some oxygen plant in Bhilai suo motu cut down its supply to Vidarbha. In such cases, courts have to intervene and whether the Supreme Court does it or the High Court does it, what difference does it make?The only question is people who are suffering from COVID-19 must get relief. Has the Supreme Court passed any orders saying all orders passed by High Courts are nullified? This pandemic is a national calamity so let us not create any tension between judiciary interface. They are capable of handling it.".Jorgay Namka, President of Bar Association of Sikkim."This order was absolutely uncalled for. Every State of our big nation has its own unique features. Whether it be population-wise, or climate or demographic distribution. Each State has its own health issues, for example Delhi is facing an oxygen supply shortage. In Sikkim, it was not a suo motu PIL but by some concerned citizens and I am an Amicus Curiae in that case. Every State has a unique way of dealing with it. You have large rallies in Bengal, then you cannot expect another State having that kind of rallies. How can such suo motu cognizance be taken at this stage? It could have been taken long time back before the election rallies began. This is definitely going to impact the federal structure and it will depend on how top court will look into. Will the Supreme Court look into the nitty-gritty of each state? How will the coordination take place? Today, we are in an emergency situation and directions have to trickle down to the State government. We are taking days of action, not months here. There is a possibility of delay too as High Courts could have dealt with the cases faster. It took my High Court a number of days to understand the situation and now it is in grasp of it. So I don't know how the Supreme Court will deal with it.".Amarendra Nath Singh, President of the Allahabad High Court Bar Association."This suo motu case will delay and create more confusion. High Courts were taking steps in the right direction and they are well aware of ground realities of their respective states. Taking over the power of their High Courts at this stage was not required. The Supreme Court can seek the government's reply but let the High Courts take its remedial measures. There was no need to intervene in the Allahabad High Court order too. Now High Courts will refrain from proceeding further and await Supreme Court order. Now this will only create delay because now the High Court is also concerned with the issues facing the people of the State...transfer of cases here is not necessary at all.".AP Ranganatha, President of Advocates Association, Bengaluru."This order was absolutely legally untenable. This is not the time for this. Every individual High Court had taken suo motu cognizance. Why did the Supreme Court avoid taking up the issue for so many days? High Courts are dealing with state-specific issues. This is unheard of and issues vary state to state in this pandemic. High Courts have worked much more in the pandemic than the Supreme Court and so many other COVID-19 issues were addressed. This is nothing but a failure of the Supreme Court. This is not only against the federal structure, but it is also like having the Supreme Court at the hands of the executive. This order is a reflection that it is not an independent judiciary.".Senior Advocate ARL Sundaresan, President of Madras Bar Association."The Supreme Court has the power to take suo motu cognizance. If the Supreme Court transfers the cases or grants an interim stay, only then High Courts will be detained from proceeding further. Article 226 is the basic structure of the Constitution, therefore, the High Courts cannot be restrained from exercising any of its powers under Article 226 and that is recognized by the Supreme Court itself in the case of L Chandrakumar.Even in the teeth of such a statutory provision, the Supreme Court held that Article 226 is part of the basic structure and thus any Parliamentary act or any other law cannot take away that right. Therefore, High Courts cannot be restrained.".Senior Advocate Nidhesh Gupta, Member, Supreme Court Bar Association."It is appalling to see that in spite of various High Courts doing extremely commendable work in ensuring adequate supply of Oxygen in various hospitals within their respective jurisdictions, yet, the Supreme Court is seeking to transfer those petitions to itself.It is inconceivable that the Supreme Court would either endeavour to or would be able to closely or adequately monitor what is happening in various states. These are matters being handled with great competence by the respective High Courts across the country.Would the Chief Justice of India handle a problem that comes up in a corner of a particular State in the late hours of the night or another problem which comes up in the wee hours of the morning in another State?It is unfathomable as to why the Supreme Court would like to interfere when the High Courts are better placed to deal with the existing situation. I have my own family member in the hospital and it is because of the orders of the Delhi High Court that oxygen is going to be supplied to the said hospital.If the Supreme Court is going to handle everything by itself why have the High Courts?"

[Suo motu case on COVID-19] Supreme Court "will delay relief", "why have High Courts at all?" Bar Association heads react to top court order

Debayan Roy

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