Senior Advocate Harish Salve recused himself as an Amicus Curiae in the Supreme Court's suo moto case on questions of oxygen delivery, drug supply, and vaccination policies in the aftermath of the COVID-19 pandemic on (April 23, 2021).
"I don't want the case to be heard under a shadow that I was appointed because of my school friendship with the CJI. I did not know our bar was divided between advocates who appear for industries and against it. I don't want aspersions to be cast", stated Salve.
He further observed, "Today, we have lost the narrative when cases used to be fought gracefully".
The CJI replied that he was distressed to hear the same thing and that although they were not pleased with what the Senior Counsels had said, each had their viewpoint.
He was responding to comments made by a number of Senior Advocates at the Bar who criticised his appointment as an amicus curia in the case.
" We understand that you are pained. We were not happy to read what supposedly senior advocates said. But everyone has their own opinion," the CJI told Salve.
The Centre's Solicitor General demanded the Salve not succumb to public scrutiny and requested the Court to review any unjustified criticism.
" We are not in a position in the country to have a maligning competition in media and electronic media. Someday somebody from the judiciary has to take cognizance of this trend of electronic media. I saw on digital media people literally abusing. This needs to be looked into. One counsel should not succumb to such tactics. Mr Salve should reconsider. It's a question of principle," the SG said.
Justice L Nageswara Rao turned to Senior Advocate Dushyant Dave at this point and asked him:
"Even before the order was released, it was being criticized for something which was not there in there in the order. Is this the way Senior Advocates speak? Without seeing the order? Is this the way you respond? Imputing motives? Without reading the order?"
Dave said that he was not imputing any motives.
"It was not imputing motives. We all thought your lordships was going to do it (transfer cases from HCs to SC). It was a genuine perception. Your lordships have done it before".
Justice Ravindra Bhat then intervened.
"Mr Dave, please. We did not say a word about the High Courts. We never stalled the High Courts from proceeding. We asked the Centre to approach High Courts", Justice Bhat told Dave.
"Senior lawyers should protect the institution", Justice Rao added.
"We feel institutions will be strengthened by objective criticism", Dave replied.
Solicitor General then said, "Chief Justice is retiring today. I genuinely feel he deserves a loving farewell. Senior Advocates must not give public statements on the basis of perceptions".
Dave replied, "Mr Mehta, you have been defending the government only on the basis of perceptions."
Senior Advocate and the present President of the Supreme Court Bar Association Vikas Singh added, "Solicitor General has said that no migrants were walking in the road and the Court has accepted".
"What is going on here?", the SG said.
Vikas Singh then said that hospitals in Delhi are facing oxygen shortage, and the court must look into inter-state issues.
"That is exactly what we are looking at", CJI responded.
The bench then closed the case for today and adjourned it until next Tuesday (April 27, 2021), while the Solicitor General requested time to file a reply.
The recusal comes only one day after a Bench led by Chief Justice of India SA Bobde and Justices L. Nageswara Rao and S. Ravindra Bhat took up the case and named Salve as an amicus curia to assist the Court. Senior members of the legal profession have slammed the Supreme Court's decision to take up the case even though High Courts around the country have given numerous directives to combat the pandemic's mismanagement. According to Senior Advocate and former President of the Supreme Court Bar Association (SCBA) Dave, the Supreme Court's decision to name Salve as the amicus curiae did not sit well with many due to his "proximity to the government of the day."
Dave had said, "I am really disturbed that Chief Justice Bobde has appointed Mr. Salve as amicus when he is not available in the country. There are many top class, fiercely independent lawyers in this country, and Mr. Salve's proximity to thegovernment of the day is well known". Senior Advocates Ravindra Srivastava and Vikas Pahwa also raised objections as to why the Attorney-General had not been appointed as the amicus in place of Salve.
After making scathing crucial observations against the Central Government, the High Courts of Bombay and Delhi intervened urgently on (April 21, 2021) Wednesday night to ensure supplies of oxygen and medicines to COVID-19 patients were secured.
The SCBA has also lodged an application with the Supreme Court, claiming that High Courts should be required to comply with COVID-19-related matters at the state level because they are in a proper position to obtain immediate reports from local officials and issue orders.
