[Editorial] A case for a more federal judiciary

judicial federalism

What the editorial is about?

The need to empower the high courts by SC to address the existing imbalance.


  • 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 now a need to examine the Indian judiciary and to strengthen the federal nature of our judiciary considering the recent trends greatly eroded the standing of the High Court.

Most probable and repeated topics of upsc prelims


  • 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.
  • The idea which lies at the bottom of federalism is that each of the separate States should have approximately equal political rights and thereby be able to maintain their non-dependent (for want of a better word) characteristics within the larger union.
  • An integral requirement of a federal state is that there be a robust federal judicial system that interprets this constitution, and therefore adjudicates upon the rights of the federal units and the central unit, and between the citizen and these units.

A.V. Dicey’s Comment on Federalism

  • “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”.

Federal Judicial System

  • The federal judicial system comprises the Supreme Court and the High Court in the sense that it is only these two courts that can adjudicate the above rights.
  • 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.

Integrated System

  • B.R. Ambedkar stated in the Constituent Assembly: “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 and providing remedies in all cases arising under the constitutional law, the civil law or the criminal law.”

History of SC and HC in India

  • 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).

The equality of power of High Court judges and Supreme Court 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.

Superior only in the appellate sense

  • 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.

Need for a delicate balance

  • 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 dreamt of by B.R. Ambedkar 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 stood out as beacons of freedom, even as the Supreme Court failed in this duty.

The recent trends greatly eroded the standing of the High Court

  • 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.

Collegium system

  • 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.
  • The practical impact of this in the power dynamic between a High Court judge and a Supreme Court judge, leaves little to be said or imagined.

Parallel judicial systems

  • 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.
  • These laws lead to 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.

Interventionist Supreme Court

  • The Supreme Court has been liberal in entertaining cases pertaining to trifling matters.
  • This has inevitably led to the balance tipping in favour of the centralization of the judiciary.
  • An aggressively interventionist Supreme Court leads many to approach it directly as a panacea for all ills befalling the nation.
  • For e.g., In 2018, some individuals from Delhi directly filed a petition in the Supreme Court to curtail Deepavali celebrations.
  • This led to an uproar because people in South India celebrate Deepavali in the morning.
  • We see the Supreme Court interfering in matters which are clearly of local importance, having no constitutional ramifications.

The impact of the degree of centralization on the federal structure

  • The greater the degree of centralization of the judiciary, the weaker the federal structure.

Global examples

  • In the United States, empirical research shows that the U.S. Supreme Court is far more likely to strike down a state statute as unconstitutional than a federal statute.
  • Courts face much weaker constraints when they strike down state legislation, especially state laws that are disapproved of by national political majorities.
  • In Nigeria, a similar federal country, research has shown that the Supreme Court favours the jurisdiction of the central government over the State units.

Way Forward

  • The Supreme Court itself need to recognize the importance of self-abnegation and restore the federal balance by re-empowering the High Courts. This will be in the best interest of the nation.
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