A case for a more federal judiciary

Syllabus: General Studies Paper 2

Context

There is an imbalance now which the Supreme Court of India needs to address by empowering High Courts again

• India is a union of States. The Supreme Court of India has held that the federalist nature of our country is part and parcel of the basic structure of the Constitution.
• Much has been written about the federal structure in relation to the legislature and the executive. There is a need to examine the Indian judiciary and the need to strengthen the federal nature of our judiciary.

Integrated system

• Federalism is a midpoint between unitarism which has a supreme centre, to which the States are subordinate, and confederalism wherein the States are supreme, and are merely coordinated by a weak centre.
• An integral requirement of a federal state is that there be a robust federal judicial system which interprets this constitution, and therefore adjudicates upon the rights of the federal units and the central unit, and between the citizen and these units.
• The federal judicial system comprises the Supreme Court and the High Court in the sense that it is only these two courts which can adjudicate the above rights.
• The Supreme Court was created under the Constitution, and is a relatively new court. On the other hand, some of the High Courts in our country have been in existence since the 1860s (and some existed even before that, in their earlier avatars as supreme courts of the Presidencies).

An equality of power

• The Indian Constitution envisaged the equality of power of High Court judges and Supreme Court judges, with a High Court judge not being a subordinate of a Supreme Court judge.
• The Supreme Court has, on many occasions, reiterated the position that the Supreme Court is superior to the High Court only in the appellate sense. Therefore, the theoretical position has always been that High Court judges and Supreme Court judges are equals.
  • A delicate balance is required to be maintained between the Supreme Court and the High Courts in order for the constitutional structure to work.
• This balance existed from Independence onwards, until the 1990s. Since then, however, it has been tilting in favour of the central court. The need for this balance was underscored during the Emergency, when the High Courts (a significant number, at least) stood out as beacons of freedom, even as the Supreme Court failed in this duty.
• In recent years, three specific trends have greatly eroded the standing of the High Court, leading to an imbalance in the federal structure of the judiciary.
• First, the Supreme Court (or rather, a section of its judges, called “the Collegium”) has the power to appoint judges and chief justices to the High Courts and the Supreme Court. This Collegium also has the power to transfer judges and chief justices from one High Court to another. Second, successive governments have passed laws that create parallel judicial systems of courts and tribunals which provide for direct appeals to the Supreme Court, bypassing the High Courts. Third, the Supreme Court has been liberal in entertaining cases pertaining to trifling matters.

A centralisation and effects

• This has resulted in balance tipping in favour of a centralisation of the judiciary. The greater the degree of centralisation of the judiciary, the weaker the federal structure.
• The Supreme Court of India today, by playing the role of a collegium, effectively wields the power to appoint a person as a judge to a High Court or to transfer him or her to another High Court, or to appoint (or delay the appointment) of a sufficiently senior High Court judge as a chief justice or as a judge of the Supreme Court.
• Moving to the second factor, an aggressively interventionist Supreme Court leads many to approach it directly as a panacea for all ills befalling the nation. In 2018, some individuals from Delhi directly filed a petition in the Supreme Court to curtail Deepavali celebrations. The Court promptly entertained the writ petition and issued directions that Deepavali could be celebrated for only one or two hours in the evening.
• We see the Supreme Court interfering in matters which are clearly of local importance, having no constitutional ramifications.
• Every time the Supreme Court entertains an appeal against a High Court decision it sends out the message to the litigant: ‘It does not matter that the High Court ruled against you, you can take one more chance with this appeal.’
• Every time the Supreme Court entertains a public interest litigation on some matter which could just as effectively have been dealt with by the High Court, what the litigant hears is: ‘You do not need to approach the High Court, you can directly file your claim here, and you will not only get your hearing, you will get publicity too.’

Parallel judicial hierarchies

• The third of the factors identified by us is the creation of parallel hierarchies of courts and tribunals, whether it be the Competition Commission, or the company law tribunals, or the consumer courts. In all these cases, the High Courts are bypassed.
  • Laws have been drafted such that the High Court has no role to play and the Supreme Court directly acts as an appellate court.
• This leads to weakening of the authority of the High Courts or the possibility of a tendency towards subservience or apathy of the judges of the High Courts.

Conclusion

• The Supreme Court should itself recognises the importance of self-abnegation and restores the federal balance by re-empowering the High Courts. This will be in the best interest of the nation.

The Hindu link

https://www.thehindu.com/opinion/lead/a-case-for-a-more-federal-judiciary/article65055822.ece

Question- Along with legislative and executive, federal nature of judiciary is also essential. Explain.