[Covid Crisis] Supreme Court Vs. High Courts: The Bar Speaks

Read Time: 23 minutes

When the Supreme Court took suo motu cognisance of the Covid related issues, it was understood that the decisions will be taken at a PAN India level, even though high courts across the country were delivering well-intentioned orders and directions to handle the immense shortage of medical facilities.

When this happened, dissent was voiced by a particular section of the bar which was further amplified in the media, even before the Top Court passed a substantive order. Unfortunately, the top court's judiciary was irked by this thorough disregard to its authority and Justice L. Nageswara Rao criticised certain lawyers for bringing disrepute to the institution. "We never stopped the high courts from doing anything," the bench led by the then Chief Justice SA Bobde, stated in anguish. 

Prior to this, the Top Court had also stayed the imposition of curbs by Allahabad High Court in 5 cities of Uttar Pradesh amid the rising cases of Covid after the UP Government moved the Supreme Court, citing that the imposition of curbs by the High Court within the state were an overarch into the well expounded executive domain & attacked right at the federal character of the constitution, albeit with a unitary bias.

This opinion of the bar was projected as being salutary, that the Supreme Court's decision was uncalled for, which even went so far as to call it "retrograde".

The bar is lively, vociferous and attuned to legal assimilations as well as fallouts. This is what makes the bar extremely vibrant, where dissent and solidarity co-exist vividly. However, what is often projected is a single-track & bleak picture, closed to different voices and opinions.

After getting in touch with a cross-section of lawyers, a better understanding of the opinions and views that co-exist in the bar came to the fore.

Senior Advocate Mahesh Jethmalani heavily criticised uncalled media stupor in the entire issue and stated, 

"This was an attempt to influence the Supreme court and that should not have been done. Many lawyers have given their personal opinion of what should the supreme court do. That is for an argument in court and that is not for the media.This brings the judiciary to disrepute. They make all sorts of aspersions against supreme court, either explicit or implied. They may not agree with the supreme court and that is their right but there is a way of expressing oneself".

Of course, this is not the first time that the Supreme Court has been under attack, with attributions of political imputations being warranted to it, often accusatory. There have been enough instances where the Supreme Court has been accused of being hand in glove with the ruling dispensation. Often, any judge, regardless of their notable work, judgments and immense legal acumen is thrown under the bus if a judgment goes in favour of the government. It is pertinent to mention that that the judgment though, is hardly ever magnified under a legal lens to counter its legal (un)tenability. Immediate affirmations are put out on social media platforms and portals, calling out the Judge, a politically motivated Justice who passes judgments without paying any heed to constitutional frameworks.

Senior Advocate Sudhir Chandra expressed his views on this phenomena and attributed this to a "lobby" which is not necessarily fond of the Prime Minister. He said,

"There is a lobby which is anti-modi. This is the same lobby which has objected to the Supreme Court taking suo motu cognisance of the Covid issues. They are virulently anti modi and any judgment of the supreme court which goes in favour of the government is stamped as a motivated and wrong judgment"

"I don't see anything extraordinary in the Supreme Court taking suo motu cognisance in a matter of such great public important where question of distribution of national resources amongst states is involved," he added

Senior Advocate Chander Lall on the other hand, explains why the phenomena happened and continues to persist. He stated, 

"Justice Breyer of the US Supreme Court in his speech at Harvard Law spoke about packing the Supreme Court and the resultant erosion of public confidence in the court. The trust in the court system should never be taken for granted, said Breyer. In the recent past unfortunately the trust of the Indian people in the judiciary and in particular the Supreme Court of India has been seriously eroded". 

The point of contention, however remains.

Whether the Supreme Court is justified in dealing with the case of Covid related crisis suo motu, even though the High Courts have been tackling the same in their respective jurisdictions?

"I don't see anything extraordinary in the Supreme Court taking suo motu cognisance in a matter of such great public important where question of distribution of national resources amongst states is involved," said Supreme Court Advocate-on-Record Pradeep K. Bakshi. He added that this is a common practice and a hue and cry is made over the issue. "Whenever a common or identical issue is before different high courts, the same are invariably transferred to the Supreme Court in order to avoid conflicting orders/judgments. More so, when there are conflicts of interest between states, a high court gets to look at matter from a particular state's point of view whereas a particular issue like the present one, where interest of all states have to looked at in larger public interest, this can be done only by the supreme court," he added.

At a time when the country as a whole is under tremendous pressure, supplies for Oxygen and life-saving drugs have been at the helm of affairs. Senior Advocate Chandra believes that there is nothing wrong or untenable with the Supreme Court's suo motu, considering that the same has PAN India ramifications and that is what the country needs. "Since there is a shortage in many states, allocations have be re fixed - it cannot be left to a particular high court alone. It is in the interest of all the states and I don’t see what is the objection," he said.

Lall, however believes otherwise. He added that the perceptions which are often attributed to the top court are not unfounded. "The Indian Supreme Court, whether rightly or wrongly, is perceived as the bail out haven of the government. 6 higher courts around the country, which courts are residents of the very state where Covid crises have been experienced, have come down heavily against the governments handing of the situation. The very act of the CJI to intervene suo motu and then calling the high court actions as ones ‘causing confusion and diversion of resources’ only fuels such perceptions further," he said.

Jethmalani on the other hand believes that regardless of what the Supreme Court does, it is unfair to project the arguments in the media, instead of the courtroom. 

"The supreme court is trying to frame its own mind about issues of public importance and covid is an issue of paramount public importance. I am not saying that the supreme court should transfer all matters before itself, that is for the Supreme Court to decide after hearing  all the parties. But all the parties cannot be heard before the media even before they are heard by the court," he said.

A number of younger members of the bar expressed anguish at the nonchalance with which the issue was tackled by a certain section of the bar, even before the top court passed any orders.

"It is quite unfortunate that there are allegations of prejudice resulting in withdrawals and pre conceived notions of senior advocates, that the Honorable Supreme court will act contrary to the interests of the people," said Advocate Himanjali Gautam, adding that one cannot deny that allegations, without commenting on the verality, popular or professional, create a distrust in the judiciary, which hampers public confidence in the judiciary.

"The motive of Supreme Court was not to transfer cases from High Courts but to merely take stock of the situation in the country in these extraordinary times. This is not the first time the Supreme Court has been attacked without any substantial reason. Such acts weaken public faith in judiciary. Justice Rao was right in saying that it only destroys the institution," said Advocate Shubhendu Anand, Partner at Atharva Legal.

Advocate Sidhant Kumar, on the other hand thinks that members of the bar are well within their right to express reasoned criticism of judicial action. "Our bar has a rich history in acting as a moral force in echelons of the constitutional courts. Senior members of the bar carry a greater proportion of the responsibility to uphold the bar’s independence. Equally, senior members of the bar are trusted to be principled and not personal in their criticism. In this case most Senior Advocates have abided by that tradition. However deviation from this tradition weakens the principle that is sought to be vindicated," he adds.

Advocate Aishwarya Mudgil believes that India, reeling under the second wave of Covid crisis is to be seen as a united front. Logic, in such a situation supersedes everything else. "It is only logical to expect the supreme court, to take suo motu cognizance of the matter, especially when we are faced with the most challenging health crisis in a century," she adds. She firmly believes that this will prevent differing views and directions that might be given and action plans that might be suggested by various high courts.

On the issue of imputations being accorded by to the Apex Court, Mudgil thrusts upon unity and trusting the wisdom of the Supreme Court, rather than imputing mala fide intentions to the highest court of the land. 

"Casting aspersions over appointment of amicus curiae and doubting the Supreme Court at this juncture (especially before any order has been issued) is unprofessional and distasteful," she suggests.

Advocate Shashank Shekar Jha thinks this is also a lot to do with politics. He went on to draw corollaries with instances of Advocate Prashant Bhushan casting undue aspersions on the top Court time and again, 

"It's also about Politics. Saket Gokhale, a close associate of Rahul Gandhi moved intervention application in the ongoing matter in Supreme Court seeking removal of Harish Salve as Amicus Curiae on the ground that he is known to CJI from years.... In the name of criticism, Senior/Seasoned Advocates sometimes try to reduce the status of the court. We've seen this back during Prashant Bhushan's contempt as well," he said.

Advocate Abhishek Dwivedi stated that it was indeed astonishing to see a number of senior advocates object to the Supreme Court's hearing based on an assumption that the SC will transfer all the cases from HC to itself.

"It was akin to incorporating (by imagination) a segment in the order and objecting to it. Inventing a problem, when there wasn't any," he added.


Alas! the Vibrant Bar!