Image: Reuters

Chief Justice SA Bobde and fellow brother Judges L Nageswara Rao and Ravindra Bhat have taken suo motu cognisance of the Covid-19 crisis in the country, especially over issues related to oxygen supply, medicines, vaccination programs. As per media reports, Senior Advocate Harish Salve has been appointed as the Amicus Curiae to assist the court.

The CJI has also said that the several cases pending in different High Courts across the country might be withdrawn to the top court as it is “creating confusion”. LiveLaw quoted the CJI saying, “We as a court wish to take suo motu cognisance of certain issues. We find that there are 6 high courts Delhi, Bombay Sikkim, Madhya Pradesh, Calcutta and Allahabad. They are exercising jurisdiction in best interest. But it is creating confusion and diversion of resources.”

According to The Leaflet, the CJI also said, “One High Court thinks there is a priority for one group and some for another.” The three judge Bench opined that the decision to impose lockdowns will remain with the states and that they won’t intervene. It thus issued a notice to the Centre on supply of oxygen, supply of essential drugs, method and manner of vaccination and power to declare lockdown, as per Bar & Bench.

Justice Bhat also clarified that the top court does not intend to supersede any High Court order as of now. He told the Solicitor General of India, Tushar Mehta, “Mr. Solicitor, you may go ahead and present your plan (before the High Courts). It is not to supersede any order (of High Court) as of now”, reported LiveLaw.

However, the CJI interrupted and said, “Maybe it is better to report directly to the Supreme Court. We will see that later. Anyway, we will issue notice and consider the matter tomorrow.” As per media reports, Tushar Mehta will intimate all other High Courts about the top court’s decision of taking suo motu notice of the pandemic.

Interestingly, this news broke when the Bombay High Court was hearing the suo motu PIL over the Covid surge in Maharashtra, taking stock of the availability of drugs, medicines and the general healthcare facilities available to the public. Despite the Advocate General informing the Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni that the Supreme Court has taken cognisance of the matter, it continued hearing the PIL, as per LiveLaw.

Bar & Bench reported that the Madras High Court also heard the suo motu case despite the Advocate General informing the Bench about the Supreme Court’s suo motu notice. The Chief Justice said that they will continue to hear the matter since there has been no stay on any of the cases before High Courts.

AG informs Court at the outset that SC has also registered a suo motu case on COVID-19 situation

Madras High Court proceeds with matter since there is no stay yet on cases before HCs#MadrasHighCourt #COVID19

— Bar & Bench (@barandbench) April 22, 2021

The big question remains if the Delhi High Court will hear the matter on Covid and the dearth of oxygen supply today on April 22 around 3 P.M as scheduled. The Division Bench of Justices Vipin Sanghi and Rekha Palli sat late evening on April 21 and blamed the Centre for continued diversion of oxygen to steel and petrochemical industries. They were dealing with an urgent petition filed by Max Hospital highlighting acute oxygen deficiency at its hospitals in Delhi.

The bench reportedly asked, “If Tatas can divert their oxygen why can’t others do it? This is the height of greed if we can say that. There is no humanity left or what?” LiveLaw reported that addressing the Joint Secretary of the Ministry of Family and Health Welfare (MoFHW), the bench asked, “How is this that the government is so oblivious to the ground reality? We can’t have people die…. Citizens can only fall back on state. So, you have to beg, borrow or steal and ensure the protection of fundamental emergency.”

As India is in the grip of a fierce second wave of the coronavirus pandemic, several High Courts have intervened, making stern observations on the lackadaisical approach of the government(s) and the crumbling healthcare infrastructure.

The Bombay High Court, up until now has been extremely responsible in handling the situation with issuing directions to the government on supply of adequate drugs to treat Covid-19 patients, availability of beds and oxygen. It also took suo motu cognisance of the spread of the virus in prisons, demanding a thorough report from the States. It has also directed the state to vaccinate all accused persons above the age of 45 years upon their arrest.

The Gujarat High Court, after noting that the State is heading towards a health emergency, strictly directed the government to have an “honest and transparent dialogue” with the public to reduce fear, loss of trust and panic. It has time and again called for information from the government on the capacity of testing facilities and whether ambulances are being deployed on a first cum first serve basis or after assessing the situation of the patient.

Similarly, the Jharkhand High Court had also recognised the pathetic situation in the State by stating, “there is a pathetic situation in the State of Jharkhand, due to non-availability of beds, oxygen supported beds and even the patients are not in a situation to live in isolation in the house since they are not made available with the required medicines due to non-supply of such medicines. While on the other hand, it has been informed to this Court that injections like Remdesivir and tablets like Favipiravir are being black-marketed.”

In Bihar, the management is far from good as the High Court has recorded that the State has no comprehensive action plan to tackle the pandemic. It said, “Serious issues have been raised about deaths taking place in various government and private hospitals because of lack of supply of oxygen. This Court cannot overlook such aspects if such allegations are true as it directly relates to a citizen’s fundamental right. If the Court reaches a conclusion that COVID patients have been or are being allowed to die because of lack of oxygen supply, the Court exercising its power of judicial review will surely intervene and pass appropriate orders in this regard.”

The Madhya Pradesh High Court has also issued a slew of directions after taking suo motu cognisance of the letter forwarded by the Supreme Court whereby Senior Advocate Ashwani Kumar had highlighted a tragic incident where an elderly patient was chained to a hospital bed in Bhopal allegedly on his failure to make payment of fees for his treatment.

In UP, as the Allahabad High Court noted that, “It is a shame that while the Government knew of the magnitude of the second wave it never planned things in advance” and ordered for a partial lockdown in 5 major cities in Uttar Pradesh, the Supreme Court stayed the operation of it, on an appeal from Government.

As state courts have better knowledge and deeper understanding of their respective State’s healthcare needs, the intervention of the apex court can in fact hinder the smooth sailing in various states. The High Courts have been proactive in upholding the rights of citizens and also holding the government accountable.   

The order may be read here:

Related:

Delhi HC saves the day, orchestrates secure supply of oxygen to Delhi hospitals

Bombay HC takes suo motu cognisance of Covid surge in prisons

Covid-19: Bombay HC directs State to vaccinate accused persons above 45 years upon arrest

Covid-19: Gujarat HC says state heading towards a "health emergency”, Gov't stays silent

Gujarat HC directs State to be honest about Covid data

Pathetic situation in the state, shortage of oxygen, beds and medicines: Jharkhand HC

No action plan to tackle Covid crisis, Patna HC expresses displeasure at State

Article 21 casts duty on state to provide life saving means such as oxygen and drugs: MP High Court