Did not intend to impute motives to the Court, I do not mince words in calling a spade a spade: Senior Advocate Dushyant Dave

Observations made by Justice L Nageswara Rao and Justice Ravindra Bhat in the course of hearing of the suo motu petition on COVID-19 issues have deeply pained me and demand response.

Justice Rao observed, “You have read the order. Is there any intention to transfer the case?”

Justice Bhat said, “We never said a word and did not stop the High Courts. We asked the Centre to go to High Courts and report to them. What kind of perception are you talking about? Talk about these proceedings.”

Justice Rao also said, “Mr. Dushyant Dave, Senior Advocate, you have imputed motives to us without reading the order.”

In the course of the hearing, my response was,

“It was a genuine perception because you have done it in the past."

My Lords! The proceedings of the hearing on April 22, 2021 in this matter were instantly reported by the media including the legal portal Bar & Bench. The report quoted the observations of this Court to the following effect:

“We as a Court wish to take suo motu cognizance 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. We appreciate that. But it is creating confusion and diversion of resources.”

The Court was further quoted as observing,

“Certain amount of panic has been generated and people have invoked jurisdiction of various High Courts seeking various reliefs…We want the power to declare lockdown to be with states and should not be judicial decision. We issue notice to the Central government on these issues.”

Solicitor General Tushar Mehta (appearing for the Centre) asked the Court whether the Central government should respond to High Courts since the Supreme Court has seized the matter.

To Solicitor General Tushar Mehta, Justice Ravindra Bhat said,

“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."

But Chief Justice of India SA Bobde at this juncture said that the issue of whether to transfer the matters pending before High Courts to the Supreme Court will be examined.

It was further reported that CJI Bobde said,

“We are taking suo- motu cognizance and issuing notice. Only Mr Salve and you (SG Mehta) will be there."

The Court therefore observed that it will issue notice on four issues: supply of oxygen, supply of essential drugs, method and manner of vaccination, and power to declare lockdown.

The Solicitor General was quoted as having submitted,

“In the meanwhile, we will inform the High Courts that you have taken suo motu cognizance."

The Supreme Court was further reported to have observed,

“Prima facie, we are inclined to take the view that the distribution of these essential services and supplies must be done in an even-handed manner according to the advice of the health authorities which undoubtedly take into account relevant factors like severity, susceptibility, the number of people affected and the local availability of resources.”

Lastly, it was also reported that the Court stated in its order, “notices be issued to the State Governments/Union Territories and the parties, who have approached the High Courts to show cause why uniform orders be not passed by this Court in relation to the four issues seized by the top court.”

Later in the day, the order passed by the Court was published. The order categorically records,

“Nonetheless, it seems that a certain amount of panic has been generated and people have invoked the jurisdiction of several High Courts in the country seeking various reliefs such as Delhi, Bombay, Sikkim, MP, Calcutta, Allahabad and Gujarat. The High Courts have passed certain orders which 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 whether the groups are local, regional or otherwise...”

My Lords! Instant reporting of what transpired during the hearing and the order pronounced unequivocally show that the underlying object of the suo motu exercise was only to transfer the High Court proceedings to the Supreme Court.

The fact that the Court observed, “High Courts have passed certain orders which 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 ….” followed by the observations, “we are inclined to take the view that the distribution of these essential services and supplies must be done in an even handed manner….” coupled with the fact that notices were issued to states, union territories and the parties who had approached the High Court, amplify this.

The remarks made by CJI that the issue of transfer will be examined also made it clear that the Supreme Court was considering a transfer.

The practice followed by Supreme Court over the decades would also support the view that indeed the Court intended to transfer the cases to itself.

If the Court indeed intended that the writ petitions were not to be transferred, it would have specifically clarified in its order that the High Courts were free to proceed with the matter, as is the usual practice.

Moreover, the four issues which the Court set out to consider are issues that High Courts across the country have been considering. If those issues are seized by the Supreme Court, then the cases pending before various High Courts would be effectively rendered moot.

I must strongly refute that I intended to impute motives to the Court, much less without reading the order. Those who know me well enough - and I am sure Lordships of the Supreme Court do as well - know that I do not mince words in calling a spade a spade.

If I criticize the Court, I do so objectively and openly and my criticism has never been subjective, in the past or even now. I respect the institution as others do and it is only out of that respect that I derive the strength to criticize the functioning of the courts and their decisions. But only when I find them to be worthy of criticism. I am therefore deeply anguished that the judges whom I hold in very high esteem should have at all made these observations.

As member of the Bar and an officer of the Court, it is my duty to comment on such matters of grave public importance. I did so because I do believe that the Court ought not to have taken suo motu cognizance in the matter particularly when the High Courts, which are equally competent and are Constitutional courts knowing local conditions far better, had stepped in to save lives of the citizens.

My Lords, you have rightly observed in your order yesterday that, “situation in various parts of the country is grim. There seems to be a sudden surge in the number of Covid patients and mortality.”

The situation is beyond comprehension. The Court has spoken about a National Plan for dealing with various services needed at this time. Sadly, there has been no Disaster Management Plan under Section 11 of Disaster Management Act. If such a plan to deal with the COVID-19 disaster had been conceived, prepared and executed, the country would not have been facing the problem it is facing today and citizens would not have been dying and suffering as they are.

Last year, WP(C) No. 546 of 2020 was filed, inter-alia seeking the following prayer:

“Issue a writ, order or direction to the Union of India to prepare, notify and implement a National Plan under Section 11 read with Section 10 of the Disaster Management Act, 2005 to deal with the ongoing COVID-19 pandemic.”

In response to this, the Central government filed an affidavit seeking to rely upon the National Plan 2019 to rebut the contention and refused to have any fresh plan despite the fact that sub-section 4 of Section 11 commands that “National Disaster Plan shall be reviewed and updated annually.”

A cursory glance through the National Plan 2019 would demonstrate how insufficient and inadequate it is to fight COVID-19. The Supreme Court dismissed that writ petition and thus ended it’s jurisdiction to intervene in the matter.

Yet, the order passed yesterday once again directed the Central government to place before the Court a National Plan to deal with “services and supplies during pandemic”. The Court had really missed the opportunity to set things right and direct the government on the right course of action as commanded by the statute to save lives and ensure the well-being and welfare of the citizens at large.

I must also put on record the fact that when the migrant crisis struck in March/April 2020, the entire nation, and for that matter, the entire world was shocked beyond imagination. The sufferings of millions of migrants were unbelievable. Yet, by judgment and order dated March 31, 2020, a Bench of the Supreme Court comprising Chief Justice of India SA Bobde and Justice L Nageswara Rao held inter-alia as under:

“The Solicitor General of India made a statement on instructions that at 11 A.M. today, there is no person walking on the roads in an attempt to reach his/her home towns/villages….The Solicitor General of India has also referred to the Status Report to make a submission that the exodus of migrant labourers was triggered due to panic created by some fake/misleading news and social media. The Status Report refers to an advisory given by the Government of India on 24.03.2020 to the authorities to effectively deal with rumour mongering.”

The Court in fact warned citizens,

“Section 54 of the Disaster Management Act, 2005 provides for punishment to a person who makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic. Such person shall be punished with imprisonment which may extend to one year or with fine.”

The Court warned the media too, saying,

“In particular, we expect the Media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated. A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours as submitted by the Solicitor General of India.”

The Court made this order within 24 hours of the filing of the petition, when the migrant crisis was still unfolding.

Once again, the Court missed such opportunity to correct the failures of the government.

I must confess, the jurisprudential approach of Supreme Court during the COVID-19 crisis has left me deeply disappointed and somewhat dismayed. The Supreme Court has in fact said in a recent decision in R Muthukrishnan v. High Court of Madras,

“18. …Considering the significance of the Bar in maintaining the rule of law, right to be treated equally and enforcement of various other fundamental rights, and to ensure that various institutions work within their parameters, its independence becomes imperative and cannot be compromised. The lawyers are supposed to be fearless and independent in the protection of rights of litigants.”

My Lords, was I therefore wrong in my perception?

The author is a Senior Advocate at the Supreme Court and former President of the Supreme Court Bar Association.

Disclaimer: The views expressed in this article are of the author's. Bar & Bench does not necessarily endorse these views.