On Monday, the Madras High Court made scathing remarks about the manner in which the Election Commission of India had conducted the recent Assembly polls in four states.

Chief Justice Sanjib Banerjee said the Election Commission was singularly responsible for the second wave of Covid-19 ripping through the country. “Were you on another planet when election rallies were held?” the court asked the commission. “Your officers should be booked on murder charges probably.”

The Madras High Court is not the only High Court that had taken up the problem of Covid-19 protocols being flouted during the Assembly polls. Since the second week of April, the Calcutta High Court has been asking the commission to ensure strict adherence to pandemic norms. It even said that election officials would be held personally responsible for violations.

Over the last few weeks, several High Courts in the country have taken up petitions, sometimes of their own accord, relating to the government’s inadequate response to the second wave of the pandemic. Of particular note are proceedings in the Bombay and Delhi High Courts, which intervened to ensure the supply of oxygen to hospitals and availability of antiviral drugs for Covid-19 patients.

Many of these High Court proceedings continued on Monday.

In the meantime, on April 22, the Supreme Court registered a suo motu case on the Covid-19 situation. It asked the Centre to place before it a national plan to tackle four areas: the supply of oxygen, the supply of antiviral drugs, the method and manner of vaccination and the power to impose lockdowns.

The order also wanted the states, the Centre and the parties before the High Courts in the pandemic cause to show cause as to why common orders should not be passed by the Supreme Court for the entire country on the issues it had listed, even though the High Courts have already taken note of some of these challenges in their jurisdictions.

The order sparked a huge controversy. Senior lawyers questioned the court’s intervention at a time when High Courts were holding the Centre accountable for the circumstances that has led to India registering record number of Covid-19 cases and deaths.

Following this, on Friday, the court said it was never its intention to transfer matters from the High Courts to itself and expressed its anguish at some of the remarks that senior lawyers had made to the media. Adding to the controversy was lawyer Harish Salve recusing himself from being amicus curiae in the case, a “friend of the court” whose role would offer insight and expertise.

Salve said he not want to function in the shadow of accusations that he had been appointed because of his friendship with the former Chief Justice SA Bobde, who retired on Friday.

Given the Supreme Court’s position as India’s top constitutional court, its intervention should have accorded the matter a sense of urgency. Instead, its decision to suo motu register a case on the Covid-19 situation led to serious criticism that it was undermining the position of the High Courts.

Supreme Court and the pandemic

Under the Constitution, the High Courts are not subordinate to the Supreme Court. However, under Article 139A, the Supreme Court is vested with powers to transfer cases from the High Court and place them before itself.

The use of this provision is not common. Usually, it involves important inter-state matters or cases in which there is a substantial question of law that requires the Supreme Court’s interpretation. However, nothing in the law stops the Supreme Court from transferring to itself any matter that it deems fit.

As far as the pandemic is concerned, it could be argued that the Covid-19 matter involved administrative decisions that affect people across states. Despite this, the timing of the move evoked strong criticism.

It came in the backdrop of High Courts, especially those in Bombay and Delhi, criticising the Central government for the medical oxygen scarcity that endangers tens of thousands of lives. Over the past days, hospitals in Delhi have been forced to move the High Court asking it to order the government to supply them medical oxygen.

What was even more problematic was the fact that the Supreme Court chose to watch the deepening crisis from the sidelines for weeks before entering the scene just when High Courts had begun to fix accountability.

The move drew comparisons to the Supreme Court’s intervention in the migrant labourers matter. After a sudden nationwide lockdown in March last year, thousands of migrant labourers were stuck without jobs or the means to buy food. With transport suspended, hundreds of thousands from across India decided to walk back to their hometowns.

On March 31, 2020, the court recorded Solicitor General Tushar Mehta’s submission that there were no labourers on the road and that lot of the panic had been caused by fake news, even though the media continued to report that large numbers of migrant labourers were still walking to their home towns and villages.

This situation continued for over a month.

In May, after much delay, the Supreme Court took cognisance of the matter on its own following a letter from several senior lawyers. While the court did pass several directions to the states and the Centre for the benefit of migrant workers and asked the states to file affidavits, the matter has not been heard since September.

The other aspect of the order last week was the court’s position that the Centre has to submit a national plan to tackle the situation.

In August, the Supreme Court dismissed a petition that asked the court to order the Centre to come up with a national plan for Covid-19 response under the Disaster Management Act.

In fact, the court specifically said:

“National Executive Committee as well as Nodal Ministry has issued guidelines and orders from time to time to regulate all measures to contain Covid-19. The petitioners are not right in their submissions that there is no sufficient plan to deal with Covid- 19 pandemic. Covid-19 being a Biological and Public Health Emergency, which has been specifically covered by National Plan, 2019, which is supplemented by various plans, guidelines and measures, there is no lack or dearth of plans and procedures to deal with Covid-19.

Defeating the purpose

Even though the Supreme Court clarified on Friday that it did not intend to transfer cases pending before the High Courts to itself, there is no escaping the fact that if the Supreme Court chose to pass common orders in the matter, it would take precedence over those of the High Courts. After all, High Courts have to factor in the apex court’s directions every time they hear a case. In fact, the Supreme Court passing common orders without transferring matters from the High Courts to itself could only lead to further confusion.

There were other problems too with the Supreme Court proceedings.

The bench not only proceeded to take suo motu cognisance on April 22, but it also gave less than 24 hours for the Centre, the states and the parties appearing in pandemic-related matters in the High Courts to show cause as to why it should not pass common orders on the issues it had listed. However, this urgency seemed to have receded on Friday. Justice Bobde, on the day of his retirement, accepted the request for time from Mehta, the Centre’s lawyer, and adjourned the matter to Tuesday.

By contrast, several High Courts have been hearing matters with great urgency, sometimes even sitting for hours in the late evening to help Covid-19 patients access oxygen and vital drugs.

While the court on Thursday said it wanted to ensure that essential services and resources are distributed in an even-handed manner and that the orders of the High Courts “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”, it did not cite any examples of how this has happened.

Instead, it has only heightened fears that it was interfering in the functioning of the High Courts at a time when they were, through well-argued and timely orders, making the governments respond with alacrity to the needs of those affected by Covid-19.

A High Court is uniquely placed to respond to complex situations arising in a state. For the Supreme Court to pass common orders for such complicated circumstances in different states would be counter-productive and defeat the very purpose of its intervention: to save lives.