COVID-19 management: Can courts venture into executive domain, and how far? Supreme Court to examine

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July 14, 2021 6:34 PM

The top court said that the courts need to respect the demarcation of power given under the constitution even though the objective was in fairness to everybody.

Justice Maheshwari also said that there are certain issues which are the domain of the executive and moreover at the time of crisis everybody has to proceed cautiously and have to take note of what is to be done by whom.

The Supreme Court on Wednesday said that it would examine how far can constitutional courts venture into issues which are exclusively in the domain of executive related to COVID-19 management.

The top court said that the courts need to respect the demarcation of power given under the constitution even though the objective was in fairness to everybody.

It said that the court will examine whether at all the Allahabad High Court needed to tread in this arena and whether it’s Ram Bharose’ comment was justified.

The remarks of a bench of Justices Vineet Saran and Dinesh Maheshwari came while hearing an appeal against the Allahabad High Court order relating to management of the COVID-19 situation in Uttar Pradesh in which it had said that the entire healthcare system in villages and small cities of the state was “Ram bharose” (at God’s mercy).

The bench said, What we want to lay down is how far a constitutional court can venture into an issue like this. Whether at all the High Court needed to tread on this arena Despite the objective being in fairness to everybody we have to respect the demarcation. How far Ram Bharose’ comments justified.

Justice Saran said There were questions like how many ambulances are there, how many oxygen beds are there. We don’t want to comment on these questions. It’s not that you cannot give suggestions but how can you ask local companies to take vaccine formula and manufacture it How can such direction be given

Justice Maheshwari also said that there are certain issues which are the domain of the executive and moreover at the time of crisis everybody has to proceed cautiously and have to take note of what is to be done by whom.

We may have 110 suggestions but can we make it part of an order We have to remember that we are a constitutional court, Justice Maheshwari said, adding that collective efforts are needed at the time of crisis, but good intent in itself does not give everybody a right to enter into other’s arena.

The bench said that although there cannot be a straightjacket formula for every problem but there are certain norms within which every institution works.

The top court at the outset, asked Solicitor General Tushar Mehta about the status of the case to which he replied that a bench of acting chief justice in the high court is hearing the case now.

Mehta said that the court may set aside the order of the High Court.

The bench said that in its earlier order it had already stated that directions of the High Court should be treated as suggestions and therefore no formal set aside is required.

It told Mehta that his assistance is required in collating all the orders passed by the court in the case and at present since High Court is dealing with the matter, this court does not intend to take it up.

Senior advocate Nidesh Gupta, who has been appointed as amicus curiae in the matter, stated that the High Court has said that viability of its directions has to be seen by the State.

He said that the court may ask the Uttar Pradesh government to do what it is proposing to do before the third wave as it is a lull before the storm.

The bench said that it will take up the matter on August 12 and the High Court can continue hearing the case.

The state government in its affidavit has said that it has a total of 2200 basic life support ambulances in addition to 250 advanced life support ambulances.

It has said that there are 298 community health centres in the state and 177 oxygen concentrators have been provided to 273 such centres and it is purchasing over 20,000 oxygen concentrators.

On May 21, Observing that high courts should refrain from passing directions which are not implementable, the top court had stayed the High Court order passed on May 17.

It had said that the directions of the High Court shall not be treated as directives but an advice to the UP government.

It had stayed the High Court order but had not stayed the proceedings before the High Court in the matter as it appointed amicus curiae to assist the court on the issue.

It had said the High Court while considering a matter on management of COVID-19 situation which has a national or trans-national ramification should refrain from dealing with it as the top court is seized of the issue.

On May 17, the High Court while hearing a PIL over the spread of coronavirus and the condition of quarantine centres in UP passed a slew of directions while taking into account the death of one Santosh Kumar (64), who was admitted to an isolation ward at a Meerut hospital.

The doctors there had failed to identify him and disposed off the body as unidentified, according to a probe report. Santosh had fainted at a hospital bathroom on April 22 and efforts were made to revive him but he died.

The hospital staff could not identify the dead and failed to locate his file. Thus, it was taken as a case of an unidentified body.

The High Court while commenting on the issue had said that if this is the state of affairs at a medical college in a city like Meerut, then the entire medical system of the state pertaining to smaller cities and villages can only be taken to be like a famous Hindi saying, ”Ram bharose”.

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