The Supreme Court on Friday said it had neither restrained nor intended to restrain the high courts from monitoring governments’ anti-Covid measures, the clarification following criticism from lawyers’ bodies that said the apex court should not take over the mantle itself.

The court asked the Centre to submit a “national plan” to combat the Covid resurgence by Tuesday, the next date of hearing. Senior advocate Harish Salve, appointed amicus curiae (friend of the court) in the matter, recused himself citing insinuations about his purported closeness to outgoing Chief Justice of India S.A. Bobde.

The bench of Justices Bobde, L. Nageswara Rao and S. Ravindra Bhat expressed displeasure at media reportage about the top court’s perceived intention of transferring to itself the Covid-related cases pending before the high courts.

Certain oral observations by the apex court on Thursday had been construed as reflecting such an intention and invited opposition from the Supreme Court Bar Association, led by senior advocate Vikas Singh, and the Gujarat High Court Bar Association, represented by senior advocate Dushyant Dave.

Both organisations had filed intervention applications opposing any such move, on the ground that the high courts were better equipped to deal with local issues.

When the matter resumed on Friday, Justice Rao asked Singh: “You have read the order. Is there any intention to transfer the case? Mr Singh, listen to us, even before reading the order there was criticism about something which was not there in the order. This is how the institution is being destroyed by senior members of the bar.”

Justice Rao told Dave: “Mr Dave, you have imputed motive to us without reading the order.”

Dave responded: “It was not about imputing motives. It was a question of genuine perception. The whole country thought that this would happen. We love you, but we have every right to voice our concern as citizens of this country.”

He then remarked that in the past too “certain orders” had been passed.

Justice Bhat intervened to say: “We never said a word and did not stop the high court. 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 -- what past are you referring to?”

Dave said: “Your Lordships always indicate in the order that the high courts are free to continue the proceedings. Your Lordships did not do it here (in Thursday’s order).”

On Thursday, the bench was hearing a plea for reopening a controversial Sterlite plant in Tamil Nadu when it seemed to suggest it might take over the Covid cases from the high courts to avoid “confusion and diversion of resources”.

It further indicated that only state governments, and not the high courts, had the power to declare lockdowns.

Earlier, the high courts of Calcutta, Allahabad, Bombay and Delhi had rapped central and state authorities, including the Election Commission, for their failure to contain the Covid second wave.

On Friday, when Justice Rao said senior lawyers like Dave were expected to protect the institution’s image, the senior counsel remarked: “We have always protected the institution.... An objective criticism only strengthens the institution rather than undermining it.”

Solicitor-general Tushar Mehta, representing the Centre, intervened to say that senior advocates cannot go by perceptions but only by legal orders.

Dave retorted: “You (Mehta) are the last person to be making this argument. You have been defending the government based on perception….”

Singh and Mehta then argued over the solicitor-general’s statement in the court last year that there were no stranded migrants on the roads – a claim the court had straightaway accepted.

Apparently exasperated at the argument between senior lawyers, Justice Bobde threatened to close the proceedings.

“We may have to shut off the mikes and the screens if it continues like this. Don’t bring it to that,” the Chief Justice said while adjourning the matter till Tuesday.

Salve recusal

Earlier during the hearing, Salve had sought recusal as amicus curiae saying he didn’t want people to talk about how he had been friends with the Chief Justice “from my school-college days” or allege a conflict of interest.

Justice Bobde tried to dissuade him, saying his appointment was a “collective decision of the bench” but Salve persisted with his plea.

Justice Bobde said: “We will honour your sentiments. The only thing is that we’ll have to start looking for some amicus curiae who we don’t know in future.”

He went on to say “Unfortunately, I don’t have any future in the judiciary now” – a reminder that Friday marked his last day in office before retirement.

The court adjourned the matter till Tuesday to enable the Centre and the Tamil Nadu government to file their replies. The Centre and Vedanta Limited have jointly sought reopening of the company’s controversial copper smelting plant in Tuticorin so that it can manufacture 1,000 tonnes of oxygen a day to help meet a national shortage.

The Tamil Nadu government had shut the factory down in May 2018 after police firing killed 14 protesters who were demanding its closure on environmental grounds.