Observing that high courts should refrain from passing directions not implementable, the Supreme Court on Friday stayed the Allahabad high court order relating to management of the COVID-19 situation in Uttar Pradesh in which it had also said that the entire healthcare system in villages and small cities of the state was "Ram bharose" (at God's mercy).
A vacation bench of Justices Vineet Saran and BR Gavai said the directions of the high court passed on May 17 shall not be treated as directives but an advice to the UP government.
At the same time, the bench said there are some observations in the order which may be well meaning but passed by the court in anxiety to provide relief to the general public.
“Such directions cannot be implemented and it shall be treated as advice and not directions. The state government, which will work to provide facilities to the people will keep in mind the advice of the high court”, it said.
The bench said that looking at the matter in depth, “We are of the opinion that the high court should consider looking into the possibility of implementation while passing any directions, and if any such direction is not implementable, then the high court should refrain from passing it”.
It said the high court should adopt the doctrine of impossibility (a situation when it is impossible for a party to perform), which has been upheld by this court.
“We are staying the order but we are not staying the proceedings before the high court. The matter be listed on July 14,” the bench said while appointing senior advocate Nidesh Gupta as amicus curiae to assist in the matter.
It 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.
Taking note of one of the directions of the Allahabad high court that every village in UP should be provided with at least two ambulances having intensive care unit facilities, the bench said the state government has submitted that there are 97,000 villages in the state and it would not be "humanly possible" to provide such ambulances in one month.
While referring to another direction that five medical colleges of the state should be upgraded to PG Medical Institutes within four months, the bench noted that the state government has said that it is not "practically feasible" in such a short period of time.
Solicitor General Tushar Mehta, appearing for the UP government, said that different benches of the high court (single judge bench and double judge benches) are passing different orders on COVID management.
“It would be appropriate if this court directs that a bench of Chief Justice of high court hears the matter related to COVID management so that there is uniformity in directions,” he said, while referring to an earlier order of the top court, where the Chief Justice of Karnataka high court was requested to hear the Franklin Templeton matter related to winding up of mutual fund schemes. Issues relating to the Templeton matter had come up in different high courts.
The bench responded to say it is not going to pass any general directions or a sweeping order as it does not want to demoralise the High Courts or the state government.
“We are at present only hearing an appeal against the Allahabad high court order,” it said and refused to pass any such orders. The appeal was filed by the UP government.
Noting that there are several other orders which have been passed by the high courts which have an impact on other states and which are related to management of COVID situations, Mehta further submitted that they should have taken a holistic view while dealing with such issues.
“There are several policy decisions which have benefits of expert opinion and there are some issues of grave importance. It is desirable that these matters including the instant matter should be heard by a bench of chief justice”, he said.
To this, the bench said, “Be that as it may, the constitution of a bench is a prerogative of Chief Justice, who is a master of roster and he may consider the same and pass appropriate orders”.
On May 17, the Allahabad 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".
On the issue of coronavirus vaccination, the court had suggested that big business houses who take benefits under taxation laws by donating to various religious organisations may be asked to divert their funds for vaccines.
Every nursing home/ hospital, which has more than 20 beds, should have at least 40 per cent of their beds as intensive care units, the court said. Every nursing home and hospital, which has more than 30 beds, should compulsorily have an oxygen production plant, the court added.
Every second and third tier town of Uttar Pradesh should be provided with at least 20 ambulances and every village should be provided with at least two ambulances having intensive care unit facilities, the court suggested while fixing May 22 as the next date of hearing.
