‘High Court Should Avoid Passing Orders Which Are Difficult To Implement’ : SC Stays Allahabad HC Directions For Improving Health Care System Of Uttar Pradesh

by May 29, 2021Governance0 comments

In a fine, favourable, fantastic and fortunate development, the Supreme Court just recently in a brief, brilliant, bold and balanced judgment titled “State of Uttar Pradesh vs In Re: Inhuman Condition At Quarantine Centres And For Providing Better Treatment To Corona Positive” in Petition(s) for Special Leave to Appeal (C) No(s). 7147/2021 (Arising out of impugned final judgment and order dated 17-05-2021 in PIL No. 574/2020 passed by the High Court of Judicature at Allahabad) delivered on 21-05-2021 stayed the slew of directions issued by the Allahabad High Court on May 17, 2021 for upgrading the medical facilities in the state of Uttar Pradesh on a war-scale footing. It must be mentioned here that a vacation Bench of Apex Court comprising of Justice Vineet Saran and Justice BR Gavai stayed the Allahabad High Court order delivered by a Division Bench of Justice Siddhartha Varma and Justice Ajit Kumar of the Allahabad High Court after hearing the submissions made by Solicitor General of India – Tushar Mehta on behalf of the State of Uttar Pradesh. While staying the Allahabad High Court’s order of May 17, the Supreme Court clarified that it is not staying the sup motu proceedings taken by the Allahabad High Coury to deal with COVID-19 issues

To start with, the ball is set rolling in the opening para of this extremely laudable judgment wherein it is put forth that, “This petition has bee n filed by the State of Uttar Pradesh challenging the order dated 17.05.2021 passed by the Division Bench of the High Court in Public Interest Litigation No. 574 of 2020 in Re: Inhuman condition of Quarantine Centres and for providing better treatment to corona positive.”

Needless to state, it is then stated in the next para that, “At the outset, we may appreciate the efforts made by the High Court of Allahabad as well as various other High Courts in taking up the matters relating to management of COVID-19 in different parts of the country. The initiative in this regard by various High Courts is laudable. However , while dealing with such matters, because of the concern and anxiety which the courts may have for the corona patients and the general public, and in an endeavour to grant utmost relief to those suffering, sometimes unwittingly, the Courts overstep and pass certain orders which may not be capable of being implemented.”

Mind you, if you read between the lines in the last sentence of the above para, you can easily infer that the Apex Court Bench of Justice Vineet Saran and Justice BR Gavai who have authored this classic, cogent and composed judgment have left no room of doubt to make it crystal clear that in their genuine concern for corona patients and the people, the Courts sometimes overstep and pass those orders which may not be capable of being implemented. This is exactly what the Courts must guard themselves always from while delivering judgments on such key issues.

To put things in perspective, the Bench then brings out in the next para that, “In the present case, the petitioner is aggrieved by the order dated 17.05.2021. According to Shri Tushar Mehta, learned Solicitor General appearing for the State of U.P., howsoever much the State may be desirous of implementing the directions issued by the High Court, the same are incapable of being implemented. As an example, learned SG has brought to our notice the direction as has been issued in paragraph 18 of the said order that every ‘B’ Grade and ‘C’ Grade town of the State should be provided with at least 20 ambulances, and further that every village should be provided with at least 2 2 ambulances having Intensive Care Unit facilities, and the same should be done within one month. Learned SG has submitted that there are over 97000 villages in the State of U.P. and it is practically and humanly impossible to provide two ambulances with such facilities in each village in the entire State in such a short period. Learned SG has stated that the endeavour of the State is to provide as many facilities as possible and they are prepared to work in that direction but the order issued to that effect which cannot be implemented would cause embarrassment to the State Government and officers who may not be able to implement the same and could be hauled up by the Court.”

Going forward, the Bench then points out in the next para that, “Another example which the learned SG has placed before us is in paragraph 17, whereby it has been directed that all nursing homes in the State should have oxygen facility on every bed, and nursing homes which have more than 20 beds should have at least 40 per cent beds as intensive Care Units and of the designated 40 percent, 25 per cent should have ventilators, 25 per cent should have High Flow Nasal Camila and 50 per cent of the 40 per cent reserved beds should have bipap machines, which should be compulsory for all the nursing homes/hospitals in the State. Another direction pointed out is that all the 5 medical colleges in the State be upgraded at the level of Sanjay Gandhi Postgraduate Institute, Lucknow within a period of four months, and if necessary, emergency laws should be applied for the acquisition of land for them. Learned SG submits that it is practically not feasible to upgrade the medical colleges as postgraduate institutes of the level of Sanjay Gandhi Postgraduate Institute of Medical Sciences, Lucknow especially in such a short period. The further submission is that certain directions/observations have also been made requiring big medical companies to manufacture vaccines after talking formula from just any of the vaccine manufacturers in the world and start producing vaccine, which also, according to learned SG, is incapable of being implemented by the State Government, and may also have national and international ramifications.”

Furthermore, the Bench then discloses in the next para that, “Learned SG has also brought to our notice that certain observations have been made with regard to the existing medical facilities in the State and the Court has observed tha the entire medical system of the State pertaining to smaller cities and villages are “Ram Bharose”, I.e. in the hands of God. According to him, such observations demoralize the spirit of doctors and para medical staff who are working day and night and are trying their level best to take full care of the rising number of corona patients.”

Quite pertinently, the Bench then observes that, “In our view, the submission that such observations were not warranted and the same may create panic amongst the citizens of the State and nullify the endeavours of the State Government in doing whatever best they are able to do for control of the pandemic and give relief to the patients, has some force.

Be it noted, the Bench then for the sake of clarity observes that, “These are some of the observations/directions which, in our view, may be well meaning, and may have been passed by the Court in the anxiety for the good of the general public, but since apparently the same are incapable of being implemented, the said directions need to be treated by the State Government only as observations and as advise of the Court, and not directions passed by the Court. By our passing this order, it would not mean that the State Government is not to work in the direction of providing the facilities to the patients and the citizens of the State which are capable of being implemented as per the guidance of the High Court by order dated 17.05.2021. We hope and trust that the State Government will make every endeavour to provide as many facilities as possible.”

Of course, the Bench then hastens to add that, “Be that as it may, it is a normal practice, which is also desirable, that such matters of public importance are dealt with by the Bench presided over by the Chief Justice, but since the constitution of Benches is the prerogative of the Chief Justice, in our view, it would be for the Chief Justice of the High Court to consider such aspect and pass appropriate orders.”

Most significantly, what forms the cornerstone of this Learned and judgment is then stated thus as : “Further while again appreciating the efforts of the judges of the High Court in looking to the matter in depth while passing orders, we are of the opinion that. the High Court should normally consider the possibility of the implementation of the directions given by it, and such directions which are incapable of being implemented should be avoided. The doctrine of impossibility, in our view, would be equally applicable to Court orders as well.”

No less significant is what is then stated in the next para that, “While concluding, we may also mention that in matters which have transnational and international ramifications, the High Court should normally refrain from issuing directions in such matters, especially when such matters of national level are being considered by this Court in separate proceedings.”

As a corollary, the Bench then holds in the next para that, “Considering the totality of the facts and circumstances, we thus stay the impugned order dated 17.05.2021.” While adding more to it, the Bench then observes that, “However, we make it clear that further proceedings before the High Court are not being stayed.”

Finally, the Bench then holds that, “We direct that this matter be now listed on 14.07.2021. We appoint Mr. Nidhesh Gupta, learned senior counsel, as Amicus Curiae to assist the Court in this matter. The Registry is directed to supply a copy of this petition to Mr. Nidhesh Gupta within three days.”

To conclude, the Apex Court has sought to make it absolutely clear to the High Courts that they should normally refrain from issuing directions in such matters which have transnational and international ramifications as mentioned above! It must also be mentioned that the UP CM Yogi Adityanath is getting lavish praise not just from national organisations but also from most reputed international organisations like World Health Organisation (WHO) and UN among others which clearly manifests that Yogi is doing a commendable job which cannot and should not be discounted! It is the bounden duty of the High Courts to strictly abide by what the top court has held in this leading case so eloquently, effectively and elegantly! The earlier they realise this, the better it shall be!

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