A case for a more federal judiciary

News: The delicate balance between HCs and SC is tilting in favour of the SC.

The article discusses the need to balance the power between High Courts and the Supreme Court.

Federalism is a midpoint between unitarism, to which the States are subordinate and confederalism wherein the States are supreme and are coordinated by a weak centre.

What is the basic nature of federalism?

A.V. Dicey’s View: The essential characteristic of federalism is the distribution of limited executive, legislative and judicial authority among bodies that are independent of each other.

Supreme Court View: it has held that the federalist nature is part and parcel of the basic structure of the Constitution.

What are the instances, where the SC overpowered High Courts

In recent years, the erosion of power of the High Court was witnessed.

First, the collegium system, consists of SC’s judges, has the power to appoint and transfer judges and chief justices to the High Courts and the Supreme Court.

Second, successive governments have passed laws to create parallel judicial systems of courts and tribunals which bypass the High Courts.

For example, Competition Commission and company law tribunals.  Also, laws have been drafted such that the Supreme Court directly acts as an appellate court.

Third, SC is intervening in matters which are clearly of local importance and have no constitutional ramifications. For instance, in 2018, petition in the Supreme Court to curtail Deepavali celebrations and the court entertained the writ petition and issued directions.

The Supreme Court entertaining PILs, which could have been effectively dealt with by the High Court, sends the message that there is no need to go to HC, cases can be directly filed in the SC.

How the Indian judiciary is envisaged by the Indian constitution?

One, Dr. B.R. Ambedkar stated in the Constituent Assembly that the Indian Federation has a dual polity but has no dual judiciary at all. The High Courts and the Supreme Court form one single integrated judiciary and provide remedies in all cases arising under constitutional law, civil law, or criminal law.

Two, the Indian Constitution envisaged the equality of power of High Court judges and Supreme Court judges. For instance, the Chief Justice of the Madras High Court, Justice P.V. Rajamannar rejected the seat in newly formed Supreme Court and preferred to be Chief Justices of the prestigious High Court.

Three, on many occasions the Supreme Court has reiterated that it is superior to the High Court only in the appellate sense.

Why there is a need to strengthen the federal nature of the judiciary?

First, a robust federal judicial system is a basic requirement for a federal State which interprets the constitution. It adjudicates upon the rights of the federal units and the central unit, and between the citizen and these units.

Second, the need for this balance was underscored during the Emergency, when the High Courts stood out as beacons of freedom.

Third, empirical research in the USA shows that judicial review by a centralized judiciary tends toward unitarism. In Nigeria, research has shown that the Supreme Court has favored interpretations that support the rights of the center over the States.

What is the way forward?

The weakening of the state units sets off a weakening of the entire body of the state. Hence, the Supreme Court should recognize this and restore the federal balance by re-empowering the High Courts.

Source: This post is based on the article “A case for a more federal judiciary” published in The Hindu on 17^th Feb 2022.