High Courts must refrain from passing orders on Covid that are impossible to implement: SC on Allahabad HC order

The Court appointed Senior Advocate Nidhesh Gupta as Amicus Curiae in the case, reported Bar and Bench.

An Amicus Curiae is a person who is not a party to a case, who assists a court by providing information, expertise, or insight that has a bearing on the issues in the case.

"We are of the opinion that High Courts should normally consider the possibility of execution of their directions. Of such directions cannot be implemented, then such orders may not be passed. The doctrine of impossibility is equally applicable to courts," the Supreme Court said, the report quoted.

Supreme Court made the observations in connection with a suo motu case by Allahabad High Court in which the court said that all nursing home beds in Uttar Pradesh must have oxygen facility, within four months.

The High Court had also ordered the Uttar Pradesh government to provide every village in UP with two ambulances with ICU facility in a month's time.

Solicitor General Tushar Mehta, appearing for the Uttar Pradesh government, said many of the orders passed by the Allahabad High Court are difficult to implement.

"Health infrastructure can never be ignored. But these directions are impossible to comply with...we understand the anxiety of the Court. But this is a matter of concern. Courts should also have some judicial restraint and not pass orders which are difficult to be implemented," Mehta told the Supreme Court bench of Justices Vineet Saran and BR Gavai, according to Bar and Bench.

In its appeal to the Supreme Court, the Uttar Pradesh government said the High Court failed to note that Uttar Pradesh is the most populous state with a population of over 24 crore.

In its petition, the state said that Uttar Pradesh is making continuous efforts to control the spread of the pandemic and provide medical health facilities to the best of its abilities.

The state also contended that the Allahabad High Court's order "effectively ventures into the arena of governance by breaching the salutary principles of separation of powers between the judiciary and executive, deserves to be set aside."

The Solicitor General also pointed out that many of the policies were framed by the Uttar Pradesh government after consulting experts and the High Court may be lacking such expertise with regard to the same.

However, the Supreme Court bench refused to cancel Allahabad High Court's "Ram Bharose" (at the mercy of God) remark, asking the state government to accept it as a word of advice.

The two-judge Allahabad High Court bench of Justices Siddharth Varma and Ajit Kumar, had said on Monday that the health system of Uttar Pradesh was at "Ram Bharose" (at the mercy of God), reported NDTV.

"So far as the medical infrastructure is concerned, in these few months we have realised that in the manner it stands today, it is very delicate, fragile, and debilitated," the High Court bench had observed while hearing a petition, demanding better care for Covid patients, the report added.

Solicitor General Tushar Mehta said that such comments demoralised the health workers and triggered panic.

"These observations are made in anxiety and concern for general public. UP can treat this as an observation and advice and not direction," the Supreme Court said. 

"We cannot pass sweeping orders for all high courts as this appeal is against Allahabad HC order," the court added.