Puneet Deshwal & Anadi Tewari
In what was a breaking move, on 22 April 2021, the Supreme Court has expressed a desire to take cognizance of issues related to COVID-19 management during this period of the pandemic when we are struggling with a deadly surge in COVID-19 cases and destabilized health structure in the country. The Court expressed concern over ‘confusion and diversion’ being created by the High Courts’ suggested to exercise its power of withdrawing cases pending before High courts and proceed further in relation with the supply of oxygen, supply of essential drugs, method and manner of vaccination and State’s power to declare lockdown.
The Supreme Court subsequently had issued a notice on the mentioning of the Solicitor General and listed the matter for the next day (23 April) whilst appointing Senior Advocate Harish Salve as amicus curiae. Interestingly on 23 April, the Supreme Court did not stay any specific order of the High Court like it had done on the previous occasion when it stayed the operation of Allahabad High Court direction imposing lockdown in five cities of UP on 20 April.
It is amply clear under our constitutional structure that in addition to the Supreme Court, the High Courts have also been bestowed with the responsibility of safeguarding fundamental rights of the citizens under Article 226. During, recent times the orders of the High Court of Delhi, Bombay, Sikkim, Madhya Pradesh, Calcutta and Allahabad were widely published instilling a sense of humanity and confidence amongst the general people.
This exercise of suo-moto cognizance by the Supreme Court on motion of the Solicitor General was incident to the very interesting hearing scheduled at 03:00 PM on 22 April and proceedings that took place on 21 April in the Delhi High Court.
The Delhi High Court very actively assembled on 21 April at 09:20 PM after being joined by the Solicitor General of India and orally remarked “Today we are in dire straits. We might lose thousands of lives for lack of oxygen. You cannot turn around and say we don’t have it, so you have to die. What we are telling you is – you have to go a step further.”
Refusing multiple requests of the Solicitor General for adjournments, the Delhi High Court was deeply concerned for lives that may be lost because of non-availability of oxygen and expressed its agreement to adjourn the matter on the next day on assurance of the SG if given on record for the availability of oxygen of hospital in Delhi till the matter is next taken up on the following day.
Later, the Delhi High Court adjourned the matter on assurance of the Central Government that it will facilitate the supply of 480 MT of medical oxygen to Delhi in an unobstructed and safe passage and listed the matter for further consideration on 23 April at 03:00 PM.
Further, on 22 April in an interesting series of courtroom-exchange, the Delhi High Court repeatedly expressed concern over the non-transportation of oxygen to Delhi despite allocation on paper and perused the order of the Home Ministry, inter-alia, directing to allow free inter-state movement of oxygen-carrying vehicles. The Court on being satisfied that movements of oxygen-carrying vehicles will be restored then directed to supply oxygen and deal any erring officer criminally. The stand taken by the counsel for the Government of the NCT of Delhi is exemplary and well assisted the Court in his individual capacity as ‘officer of the Court’.
It is also reported that the Bombay High Court refused to desist from hearing on COVID-19 issues after it was informed by the Additional Solicitor General Anil Singh that the Supreme Court has decided to take suo-moto cognizance on issues related to COVID-19 management.
It will be pertinent to reproduce a recent judgment of Allahabad High Court on 20 April at this juncture of time which highlighted the role of constitutional courts during the pandemic. Under paragraph 17, the Allahabad High Court observed that:
“17. ….[P]ublic health is the topmost priority and call of the moment and any complacency of any degree today will cause havoc to people. We can’t shirk away from our constitutional duty to save innocent people from the pandemic which is spreading…. 18. Thus in the larger public interest, we are called upon to pass orders to break the chain of the pandemic ….”
During this medical emergency, the courage displayed by various High Courts is an exemplary illustration as to the enforcement of the fundamental rights in their true spirits and colours despite the scary statements remarked by the Solicitor General during these proceedings in the High Court.
The suo-moto cognizance by the Supreme Court is capable enough to snatch the confidence of the High Courts in discharging their constitutional obligation related to COVID-19 management and made continuance of the ongoing proceedings ‘toothless’. The Supreme Court of the land took cognizance of the matter at the stage when the Central Government was subjected to embarrassment in various High Courts on multiple occasions.
During the present medical emergency, the Central Government must not turn this proposed unified assumption of jurisdiction by the Supreme Court into a means to shunt the effective enforcement of the right of life and other fundamental rights of the citizens. The Supreme Court would not subject its citizenry to any jurisprudence which may cause them to feel helpless like many years before in ADM Jabalpur v. Shivakant Shukla [AIR 1976 SC 1207].
We, the people of India look forward to your lordships ‘supreme’ Court with utmost faith that you will jealously guard our lives guaranteed and protected by the Constitution. My Lords! we urge you not to repeat these unfortunate precedents!
Views are Personal.
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(Puneet Deshwal is the 4th year law student at Faculty of Law, University of Lucknow)
(Anadi Tewari is the 3rd year law student at Faculty of Law, University of Lucknow)
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