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This article is written by Pranav Sethi, from SVKM NMIMS School of Law, Navi Mumbai. This article analyses the Supreme Court vs High Courts in light of dealing with the Coronavirus Pandemic.

Introduction 

“Justice consists not in being neutral between right and wrong, but finding out the right and upholding it, wherever found, against the wrong.” – Theodore Roosevelt

As an outcome of the novel Coronavirus, individuals, companies, recruiters, leaders, families, and everyone else on the planet have been forced to rethink life as they knew it. In India, the judiciary adopted procedures that were unfamiliar to law practitioners and the general public, such as virtual proceedings and e-filings (although they were pre-existing in certain jurisdictions much before the pandemic). However, such practices are only available to a select group of lawyers and individuals. The activities that existed prior to the pandemic were restricted to New Delhi and Mumbai.

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India has become conditioned to an adversarial justice system based on the geographical position of courts or tribunals. The judiciary is given a worthy and crucial role in the Indian Constitution. As a result, under the common law system, enforcement of the law is a basic right that all people have. Though India does not have a “dual judicial” system (as the United States does), this can hinder a litigant’s right to approach the Supreme Court or judicial tribunals because of their locations, especially in New Delhi.

Currently, at least six High Courts are hearing cases related to the pandemic. Even though High Courts were issuing possibly the best directives and guidelines to address the massive shortage of healthcare services, the Supreme Court on April 23 decided to take this case suo moto. When the Supreme Court took suo moto cognizance of the COVID-19 related problems, it was recognized that decisions would be made on a pan-India basis. The legislative world disagreed with the Supreme Court for holding suo moto knowledge or understanding of COVID-19 related issues while the High Courts were still examining them.

Viewpoints of various Senior Advocates

Senior Advocate and Former Judge of the Patna High Court Anjana Prakash

The said senior advocate stated that “I think it is unfortunate. What was the illegality in the High Court order? As far as I know, despite the hierarchical system of Courts, the High Court is not a subordinate court of the Supreme Court whose every order has to meet the approval of the Supreme Court, as would be required in the bureaucracy. 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“.

Senior Advocate Chander Uday Sigh

The said senior advocate stated that “I’m shocked that the Supreme Court wants to intervene in six separate cases being heard in six different High Courts around the country on a war footing.” This comes at a time when it is widely accepted that over-centralized decision-making failed in the battle against COVID-19. It speaks of supreme disregard to unimaginable human misery that the Supreme Court believes is responsible for managing life and death circumstances in various States in the same time period as the relevant High Courts.

Senior Advocate and Former Attorney General of India Mukul Rohatgi

Mr. Rohatgi claimed that the Supreme Court’s ad-interim hold on the Allahabad High Court’s decision to enforce lockdown in five Uttar Pradesh cities in order to control the COVID 19 surge was incorrect.

He 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.“

Senior Advocate and Former President of the Supreme Court Bar Association Dushyant Dave

According to him, the Supreme Court’s suo moto interference, which seeks to prevent the High Courts from carrying out their constitutional duties, is completely unnecessary and unreasonable, first and foremost because the Supreme Court has been a neutral observer to the nation’s events for the past few months. The writing was on the wall for them to see. If the Supreme Court cared for people, it should have acted sooner to ensure that the government was operating properly and that sufficient clinics, vaccines, medications, and oxygen supplies were available for COVID-19 patients. 

Furthermore, High Courts have a greater understanding of local circumstances. As a result, the Supreme Court in Delhi has no role in intervening with the operations of the High Courts. High Courts are not subordinate to the Supreme Court; they are separate. In the end, every life is important in today’s world. There is no need for the Supreme Court to interfere in the High Court’s decision, however disagreeable it might be to the SC judges, it will still save a few lives. Far from assisting people and defending their right to life, the Supreme Court’s action is likely to lead to the risk of lives and in a breach of Article 21. The Supreme Court would be wise to take a step back.

Senior Advocate Harish Salve’s nomination as an amicus curiae in the case was also criticized by Senior advocate Dushyant Dave, he found it “uncalled for.”

“Mr. Salve is a very able lawyer and I have no doubt about Salve’s abilities. And Salve is a very close friend of Chief Justice Bobde – a childhood friend. There is no reason why Mr. Salve should, again and again, be appointed by Chief Justice Bobde as amicus curiae.  Particularly because Mr.Salve is not in India.  He has been a non-resident and living in London for a long time. He does not know the realities of India. He does not know the sufferings of Indian people. He does not know the pain of Indians. Whatever be his abilities, frankly Mr. Salve has a conflict of interest, because he represents the biggest industrial houses in the country, including Sterlite. Mr.Slave’s statement to reopen the Sterlite plant itself frankly disentitles him to carry on as amicus curiae. I am really disturbed that Chief Justice Bode has appointed Mr.Salve as amicus when he is not available in India. There are many top-class, fiercely independent lawyers in this country, and Mr.Slave’s proximity to the government of the day is well known. He has appeared to defend the government directly and indirectly in a large number of cases during Covid”.

Senior advocate Dushyant Dave also expressed dissatisfaction with the fact that when the deciding judge of the bench does anything wrong, the other judges of the bench do nothing.

“I have the greatest respect for the Supreme Court. I have immense respect for Justices L Nageswara Rao and Justice Ravindra Bhat sitting on the bench. I must still say, I am deeply disappointed that judges sitting with the Chief Justice or judges like Justice Arun Mishra have never been able to stop anything wrong from being done by the presiding judge. It is a really sad commentary on the Supreme Court. They must remember every judge is a judge of the Supreme Court. He is bound by the constitutional oath. The Chief Justice is just the first among the equals. He is not their boss”.

Senior Advocate Ravindra Shrivastava

According to Senior Advocate Ravindra Shrivastava, in a federal system, the High Courts are just as qualified and have authority as the Supreme Court, if not more. He also criticized the Supreme Court for nominating an amicus curiae in the case rather than pursuing the Attorney General’s opinion.

Senior Advocate Vivek Tankha

Vivek Tankha, a senior advocate, and Rajya Sabha MP said on Twitter that the Supreme Court may be in a stronger place to request the Union Government’s answer on the COVID-19 concerns on a national scale, the High Courts are more prepared to track the issue at the local scale. He claims that the Supreme Court requires the time and resources to address the issues that states are experiencing. Many other prominent and younger lawyers, as well as legal scholars, have expressed their displeasure with the Supreme Court’s decision on social networks.

Various High Courts’ Orders

Bombay High Court

Despite the fact that COVID-19 problems in Maharashtra were rapidly increasing, the Union Ministry of Health and Family Welfare announced on April 18 to cut off oxygen supplies to the state from one of its plants. The Bhilai plant in Chhattisgarh had previously supplied Nagpur and other districts in Maharashtra’s Vidarbha area with 110 metric tonnes of oxygen. It was unexpectedly reduced to 60 metric tonnes. The Bombay High Court’s Nagpur bench was concerned by the move and chose to take Suo moto cognizance of it, ordering the Centre to restore the oxygen capability to its initial level.

The division bench of Justices Sunil Sukre and S.M. Modak stated in an early court hearing on April 21 that the Centre’s communication to the state came as a “bolt from the blue.” Earlier in the day itself, the court had said, “If you don’t feel ashamed of yourself, we are feeling ashamed of ourselves for being part of such a nasty society. We are not able to do anything for the helpless patients of Maharashtra. You don’t have any solution; what nonsense is this?”

The court had focused its concerns on two critical issues – sufficient Remdesivir supply and oxygen supply in the state. Several members from the Nagpur district, the state, as well as many health professionals, assisted in the suo moto meeting. The Nagpur collector informed the jury that the district requires 166.5 metric tonnes, with the remaining Vidarbha districts requiring between 60 and 100 metric tonnes.

Also with the growing number of cases, the court concluded that the centre’s contact should have been to the benefit of raising the production from 110 metric tonnes per day to about 200-300 metric tonnes per day. The court then directed the COVID-19 committee to make every effort to obtain Remdesivir vials in adequate quantities currently, as well as to improve the oxygen supply to COVID-19 hospitals.

Allahabad High Court 

The Allahabad High Court issued the ruling in a suo moto PIL, condemning the Uttar Pradesh governing party for failing to properly prepare for the next phase of the deadly virus. A division bench of the High Court, consisting of Justices Siddhartha Varma and Ajit Kumar, defined the terrible condition of the state’s medical system and declared that a lockdown was necessary to prevent the crisis from spiralling out of control.

“Before (the Pandemic) further spirals to engulf in it the entire population of these badly hit districts, it is necessary to take some harsh steps in the larger public interest”

On the opposite side, the Uttar Pradesh administration refused to carry out the High Court’s decision for closure in the five towns.

“It’s a disappointment that, despite knowing the severity of the second wave, the government never prepared ahead.” Justices Siddhartha Varma and Ajit Kumar wrote in a sternly worded order.

The Court outlined the miserable condition of the national public health care infrastructure in Uttar Pradesh’s prominent cities. The Court stated that the“medical health infrastructure that the government has developed in the past, can cater to the needs of less than 0.5% of the city population”, relating to healthcare statistics in Prayagraj. The crisis is much more severe in small villages.

Further on 20th April, In light of the COVID-19 pandemic, the Supreme Court stayed an Allahabad High Court order directing the Uttar Pradesh administrative authorities to execute a closure of activities in five cities: Prayagraj, Lucknow, Kanpur, Varanasi, and Gorakhpur till April 26. A bench headed by Chief Justice of India SA Bobde held the operation of the judgment after hearing Solicitor General Tushar Mehta’s arguments. Although the State did not challenge any of the High Court’s orders, it suggested that “to lock down five cities by judicial order may not be the right approach”.

Case of judicial federalism

The Supreme Court has the discretion to move cases from the High Courts to its own through Article 139A of the Constitution if the lawsuits contain such identical legal issues. Courts cannot improve health infrastructure or provide direct oxygen. They also lack the tools and competencies necessary to resolve social rights cases. They will keep the executive responsible in different levels of healthcare distribution by asking hard questions, enforcing current laws and regulations is what they can do. The Supreme Court in the case of Parmanand Katara v Union of India (1989)  highlighted the value of human lives, arguing that one of a citizen’s basic rights is access to emergency medical treatment as a result, constitutional courts have a responsibility to uphold this right.

The High Courts of Delhi, Gujarat, Madras, and Bombay, among others, have done just that in the face of a de facto COVID­-19 health emergency. They addressed the requests for oxygen from different hospitals. The Gujarat High Court released a number of orders, involving clinical trials and oxygen purchase. The Bombay High Court’s Nagpur Bench was forced to hold night sessions to address the problem of oxygen supply. It ordered that the oxygen supply at the Bhilai steel plant in Chhattisgarh be restored immediately. The Delhi High Court ordered the central government to take appropriate steps to make sure a sufficient supply of oxygen is made available.

Transfer of cases  

In ‘Re: Distribution of Essential Supplies and Services During Pandemic,’ the Supreme Court took suo moto cognizance of the problem on April 22.

It said, “Prima facie, we are inclined to take the view that the distribution of these essential services and supplies must be done in an even-handed manner according to the advice of the health authorities” and it directed the Central government to introduce a national plan. It also released an order requiring state governments and union territories to “show cause” why specific directions could not be released by the Supreme Court. The bench thus mentioned the option of transferring cases to the Supreme Court, as it has done previously.

Analysis of whether the Supreme Court can transfer cases

The Supreme Court has the power to move lawsuits from the High Courts to itself under Article 139A of the Constitution if the cases contain similar legal issues. However, two possibly the best assumptions about the court’s current behavior find its subordination worrying. One, except in cases where executive action was required, such as the Internet ban in Kashmir, the court has been unconcerned about the executive’s acts and inactions. Second, when successful solutions were pursued, such as when activists and journalists were arrested and imprisoned, the court remained firmly silent. It behaved as though it didn’t have many options.

These attributes, along with the undesirability of an executive judiciary, enable the court’s call for a takeover alarming. On April 23, the court reversed its decision and subsequently postponed the case, probably in response to significant criticism of the court’s decision, notably from a segment of the legal profession.

Considerably, the emerging developments provide some critical lessons for India’s judicial federalism. The fact that several members of various High Court Bar Associations spoke out regarding the plan to shift cases from the High Courts to the Supreme Court is a hopeful indication of the Bar’s institutional democracy resurfacing.

The views of the top court were criticized by Navroz Seervai, a well-known lawyer from the Bombay High Court, who said they represented, “arrogance of power” and “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”.

Beginning of a new bench and resolving misunderstandings

The Supreme Court explained on 27th April that the aim of suo moto proceedings on COVID-19 related problems is not to replace the High Courts or to control what the High Courts are doing.

“The object of these proceedings is not to supplant the High Courts or to take over from High Courts what they are doing. High Courts are in a better position to monitor what is going on within their territorial boundaries.”Justice Chandrachud-led bench clarified.

The evaluation was done by a bench made up of Justices DY Chandrachud, L Nageswara Rao, and S Ravindra Bhat while addressing a suo-moto case regarding the availability of oxygen, drugs, and vaccines to combat COVID-19.

“High Courts are best situated to make an assessment of ground realities in each state and find flexible solutions for the problems faced by citizens. Therefore, we see no reason or justification to interdict the High Courts”, the Bench has said.

Being also said, the Court noted that it may be necessary for the Supreme Court to interfere on such national matters, as there may be concerns involving state cooperation. The bench incorporated that the interference of the Supreme Court must be recognized in the right shape. There are several topics that cut across regional lines. With this, the Senior Advocates Jaideep Gupta and Meenakshi Arora were nominated as amici curiae in the Supreme Court’s suo moto case dealing with COVID-19-related issues.

“At a time of national crisis, the Supreme Court cannot be a mute spectator”, the bench observed.

The Supreme Court explained that it serves as a companion to the High Courts and that if the High Courts are having trouble dealing with a problem due to geographical constraints, the Supreme Court would assist them.

Conclusion

Judicial federalism provides both inherent and operational advantages that are primarily strategic in nature. In a 1984 article, Justice Sandra Day O’Connor correctly stated that the United States Supreme Court reviews “only a relative handful of cases from state courts” which secures, “a large measure of autonomy in the application of federal law” for the State courts. This fundamental precept of judicial governance is widely recognized in today’s federal courts only when it is inevitable in the case. For example, in cases of clear recognition and enforcement or legal interpretation of the decisions, there is a need for a unified court ruling across India. Otherwise, autonomy predominates over uniformity. The theory is decentralization, not centrism. High Courts around the country have operated with a tremendous sense of judicial duty in the COVID-­19 ­related cases. This is a legal framework that should be applauded.

References

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