Context: In the face of a de facto COVID-19 health emergency, the High Courts of Delhi, Gujarat, Madras and Bombay have considered the pleas of various hospitals for oxygen supply. 

• The Gujarat High Court issued a series of directions, including for laboratory testing and procurement of oxygen. 
• The Nagpur Bench of the Bombay High Court was constrained to hold night sittings to consider the issue of oxygen supply. 
• It directed immediate restoration of oxygen supply that had been reduced from the Bhilai steel plant in Chhattisgarh. 
• The Delhi High Court directed the Central government to ensure adequate measures for the supply of oxygen.

Transfer of cases by Supreme Court

• The Supreme Court took suo motu cognisance of the issue in ‘Re: Distribution of Essential Supplies and Services During Pandemic’. 
• The court indicated the possibility of transfer of cases to the Supreme Court, which it has done on various occasions before.

Constitutional provisions

• Under Article 139A of the Constitution, the Supreme Court has the power to transfer cases from the High Courts to itself if cases involve the same questions of law. 

Concerns

• Internal democracy in judiciary: The very fact that many from different High Court Bar Associations spoke up against the move to transfer the cases from the High Courts to the Supreme Court is a positive signal that underlines re-emergence of internal democracy within the Bar. 
• Constitutional rights of High Courts: According to the Seventh Schedule of the Constitution, public health and hospitals come under the State List as Item No. 6. 

There could be related subjects coming under the Union List or Concurrent List. 
Also, there may be areas of inter-State conflicts. 

• In L. Chandra Kumar v. Union of India (1997), the Supreme Court itself said that the High Courts are “institutions endowed with glorious judicial traditions”.
• The power of the High Court under Article 226 is wider than the Supreme Court’s under Article 32. In High Court, a writ can be issued not only in cases of violation of fundamental rights but also “for any other purpose”.

Article 226, empowers the high courts to issue, to any person or authority, including the government (in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them. 

• Article 32 affirms the right to move the Supreme Court if a fundamental right is violated.

Significance of judicial intervention

• Accountability of executive: In comparison to the legislature and the executive, what the judiciary can deliver in the realm of socio-economic rights is limited. 
• Courts cannot build better health infrastructure or directly supply oxygen; neither are they functionally bound to. 
• But they can ask tough questions to the executive, implement existing laws and regulations, and hold the executive accountable in various aspects of healthcare allocation. 
• In Parmanand Katara v. Union of India (1989), the Supreme Court underlined the value of human lives and said that the right to emergency medical treatment is part of the citizen’s fundamental rights. As such, constitutional courts owe a duty to protect this right.

Need for autonomy

• Judicial federalism has intrinsic and instrumental benefits which are essentially political. 
• The need for a uniform judicial order across India is warranted only in cases of an apparent conflict of laws or judgments on legal interpretation. 
• Decentralisation, not centrism, is the principle. In the COVID-19-related cases, High Courts across the country have acted with an immense sense of judicial responsibility. This is a legal landscape that deserves to be encouraged. To do this, the Supreme Court must simply stay away.