Nearly a week after at least six High Courts began hearing cases related to inadequacies in the officialdom's response to the surging Covid pandemic and censured the Centre and state governments, the Supreme Court, on its own, suggested it would transfer these cases to itself to avoid what it called "confusion and diversion of resources." The High Courts have issued a slew of orders and made critical observations on the way the crisis is being managed by governments. Newsletter | Click to get the day's best explainers in your inbox On April 16, the Nagpur bench of the Bombay High Court took cognizance of lack of availability of Remdesivir in the district. It revived a public interest litigation it had taken up on its own motion in 2020 on the government’s handling of the Covid-19 crisis. On April 20, the Delhi High Court set up a special bench that began hearing cases related to Covid-19 in the national capital, especially on the shortage in supply of oxygen. Ittold the Centre to “beg, borrow or steal” to ensure adequate oxygen to the capital and that it seemed “human lives are not that important…for the state.” Similarly, the Allahabad HC began hearing a PIL on April 13 on the pandemic in Uttar Pradesh and on April 19, passed an order imposing a lockdown in five districts of the state. Apart from Delhi, Bombay and Allahabad High Courts, Karnataka and Madras High Courts are also hearing cases related to the pandemic. The court’s decision to hear the cases itself is similar to its intervention last year on the migrant crisis triggered by the pandemic. In May last year, the SC took up the issue suo motu, weeks after several High Courts raised questions of officials and governments. However, in the six substantial hearings it held in the case, the apex court only sought affidavits from states on the number of migrant workers, the plan to transport them to their destination, the mechanism of registration. The case has not come up before the court since September last year, even as some states are yet to file their replies. Although Article 139A of the Constitution allows the transfer of certain cases from a High Court or multiple High Courts to the Supreme Court, this is sparingly invoked. The transfer of cases happens when there is a question of law that needs to be clarified since one or more High Courts could have differing views. In August last year, the SC transferred over 144 cases pending in High Courts in which the Citizenship Amendment Act, 2019 was challenged. However, the refrain from the SC in several cases, especially PILs, is to approach the High Courts which are better equipped to address local issues. In the case of the pandemic and the supply of oxygen and essential drugs, there is an administrative imperative to transfer cases since supply chains cut across multiple states and the central government. However, in adding that for now, it will only hear the Centre and senior advocate Harish Salve, who was appointed amicus curie in the case, the SC virtually excludes the states - where the crisis is unfolding – and where local factors are key to Covid management. Indeed, the crisis states have been filing affidavits before the High Courts on the ground situation and they will be left out of the proceedings. Private parties, such as hospitals and individual citizens who approached these High Courts in emergency situations - beyond working hours of the courts – may now have to necessarily move SC. Significantly, in what also raises a potential conflict of interest issue, Salve has been dialling in from London to appear for vaccine manufacturer Serum Institute of India and, on Thursday, for Vedanta Ltd in a separate case that sought the court’s permission to re-open its plant in Tamil Nadu to, ostensibly, produce oxygen to alleviate scarcity. The project has been shut for violation of environmental norms following protests in the state. Meanwhile, despite the Supreme Court’s intervention, the Bombay, Delhi, Madras and Karnataka High Courts went ahead with the hearings even as lawyers for the Centre informed them that about the SC’s suggestion that it could withdraw these cases from the high court. “Till the matter goes to the Supreme Court, this is not a matter we can adjourn,” a Delhi High Court bench of Justices Vipin Sanghi and Rekha Palli said. The Bombay High Court, too, said it would continue hearing the case since there was no official “transfer or stay order.”
