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Monday, May 10, 2021

Covid hearing: Salve pulls out as amicus, SC flays criticism of order

Solicitor General Tushar Mehta urged Salve to reconsider his decision to stay away, saying “once any one succumbs to” such criticism, “there would not be one neutral person to be appointed who would not be so pressurised”. Salve did not, however, take back his request for recusal.

By: Express News Service | New Delhi |
Updated: April 24, 2021 7:34:33 am
Supreme Court has also asked the Centre to furnish a “national plan” to deal with the Covid situation.

A day after he was appointed amicus curiae to assist the Supreme Court in a suo motu matter related to management of the Covid-19 situation, Senior Advocate Harish Salve asked to be recused from the responsibility, saying he did not want a “shadow” over the “greatest and the most sensitive case” in the history of the court.

“This is the greatest and the most sensitive case that this Court will handle in its existence. We know how the states are divided and how the country is on tenterhooks. I don’t want this case to be decided in the shadow that I was appointed as the amicus curiae because I know the Chief Justice of India from school and college…,” Salve told a Bench headed by CJI S A Bobde and also comprising Justices L Nageswara Rao and S Ravindra Bhat as soon as proceedings began on Friday.

Salve was apparently referring to criticism in some quarters that he should not have been chosen for the role as CJI Bobde and he were schoolmates and “friends”.

The CJI — who was hearing the matter on the last day of his tenure — told Salve that “there is nothing clandestine about it”, and “you don’t have to justify anything”.

He added that “it (appointing Salve as amicus curiae) was a collective act of the Court”.

Salve, however, said “there is also an allegation of a conflict of interest” as he had appeared for Vedanta Ltd on Thursday seeking the court’s permission to operationalise its plant in Tamil Nadu for producing Oxygen for Covid-19 patients.

The plant was shut in May 2018 over allegations that it had violated environmental norms. An appeal by the company is pending before the top court.

“While the American bar may be divided as plaintiffs and defendants, apparently we divide our bar based on those who appear for industrialists and those who appear for non-industrialists”, Salve said.

“Then there is the larger issue of the narrative in court which must be addressed,” he added.

The CJI said, “We understand that you are pained by what some of the supposedly senior advocates have said. We are also not happy about it.”

Solicitor General Tushar Mehta said he had seen some of the comments broadcast by the digital and electronic media after Thursday’s order by the court, and “realised that it is virtually abusive”. He said “some day, somebody from judiciary has to take cognizance of that”.

Mehta urged Salve to reconsider his decision to stay away, saying “once any one succumbs to” such criticism, “there would not be one neutral person to be appointed who would not be so pressurised”. Salve did not, however, take back his request for recusal.

The Bench then addressed the criticism that it was going to withdraw Covid-19 matters pending before High Courts to itself. It lashed out at Senior Advocate Dushyant Dave, saying he had commented without reading the court’s order.

“It was not the intention of the Supreme Court to transfer cases from the High Court. Even without reading the order, even before the order was released, there was criticism based on something which was non-existent. Even though no order was passed, the institution is being destroyed. It was being said that we are…stopping the High Court from passing orders”, Justice Rao said.

Indicating that there was nothing to this effect in the order, Justice Rao told Dave: “You are imputing motives to us even without seeing the order.”

Dave replied that he was not trying to impute motives; rather, “it was a genuine perception”.

“The whole country thought that this would happen. We love you, but we have every right to voice our concern as the citizens of the country”, he said. “We were apprehensive as your Lordships have done it in the past, during the Covid period.”

But the Bench was not convinced. Justice Bhat told Dave: “We didn’t stall the proceedings before the High Courts. They passed the orders the way they had to. We asked the government to go and report to the High Courts and they did.”

“What perception are you talking about? What past are you referring to?” the court asked Dave.

Dave said the court usually indicates in its order that the High Courts were free to continue the proceedings, but had not said so in Thursday’s order.

“You are supposed to be protecting this institution…,” Justice Rao observed.

Dave responded that any objective criticism only strengthens the institution and does not undermine it.

Intervening, the SG remarked that senior advocates don’t give public statements based on perception, but go by legal orders.

Dave responded that Mehta ought to be the last person to make such an argument, as “you have been defending the government based on perception”.

Senior Advocate and Supreme Court Bar Association President Vikas Singh said the court needed to look into the question of inter-state movement of supplies like oxygen.

“That is exactly our intention,” the CJI said, before proceeding to adjourn the hearing until April 27 to give the Centre time to file a detailed reply.

Taking suo motu cognizance of some of the key issues related to Covid-19 management, including the supply of oxygen and essential drugs, and the declaration of lockdowns, the top court had on Thursday said that the matter being heard in different High Courts was “creating some confusion” and “diversion of resources”, and sought to know why uniform orders should not be passed.

It had also asked the Centre to furnish a “national plan” to deal with the situation.

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