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A case for a more federal judiciary

  • IASbaba
  • February 17, 2022
  • 0
UPSC Articles
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GOVERNANCE / POLITY

  • GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
  • GS-2: Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of vulnerable sections.

A case for a more federal judiciary

Context: Nearly 150 years ago, A.V. Dicey, the foremost constitutional lawyer of his day, wrote, “The essential characteristic of federalism is the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other”.

  • It is now time to examine the Indian judiciary and the need to strengthen the federal nature of our judiciary. 

About the characteristic of Indian Judiciary

  • 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. 
  • Integrated Judiciary: The Indian Federation though a dual polity has no dual judiciary at all. The High Courts and the Supreme Court form one single integrated judiciary having jurisdiction in all cases arising under the constitutional law, the civil law or the criminal law.
  • Equality of Judges: 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. 

Centralisation of Indian Judiciary

  • The theoretical position has always been that High Court judges and Supreme Court judges are equals. This balance is required in order for the constitutional structure dreamt of by B.R. Ambedkar to work. 
  • The need for this balance was underscored during the Emergency, when certain High Courts stood out as beacons of freedom, even as the Supreme Court failed in this duty. 
  • This balance existed from Independence onwards, until the 1990s. Since then, however, it has been tilting in favour of the central court
    • 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.
    • 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. 

What are the impacts of Centralisation of Judiciary?

  1. Weakening of Federalism
    • In the United States, empirical research by scholars shows that the U.S. Supreme Court is far more likely to strike down a state law as unconstitutional than a federal law. This research leads to the conclusion that judicial review by a centralised judiciary tends toward unitarism (the opposite of federalism)
    • In Nigeria, a similar federal country, in case of litigations over mineral rights and subsoil rights, the Supreme Court has favoured interpretations which support the rights of the centre over the State
    • Supreme Court of India today, by playing the role of a collegium, effectively wields the power to appoint (or delay the appointment) of a person as a judge to a High Court or to transfer to another High Court.
  2. Non-constitutional frivolous matters reaching Supreme Court 
    • An aggressively interventionist Supreme Court leads many to approach it directly as a panacea for all ills befalling the nation
    • In 2018, Supreme Court promptly entertained the writ petition to curtail Deepavali celebrations. In another example, the Supreme Court spent days deciding the height of the dahi handi during Gokulashtami celebrations.
    • Frivolous matters are making the institution dysfunctional. These matters waste important time of the court, which could have been spent on serious matters, pan-India matters
  3. Creation of parallel hierarchies of courts and tribunals
    • 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.
    • 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

Supreme Court itself must recognises the importance of Judicial Federalism and restores the federal balance by re-empowering the High Courts. This will be in the best interest of the nation.

Connecting the dots:

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