Recently, the Supreme Court of India taking suo motu cognizance of some of the key issues related to Covid-19 management which included the supply of oxygen and essential drugs and declaration of lockdowns noted that the matter being heard in the several High Courts is ‘creating confusion’ and ‘diversion of resources’. Various High Courts were dealing with such cases when the Supreme Court of India took up the issue to itself and decided to pass some orders on the issue of ‘distribution of essential supplies and services during pandemic’. Additionally, the Court issued an order asking the State governments and the Union Territories to “show cause why uniform orders” should not be passed by the Supreme Court. It thus indicated the possibility of transfer of cases to the Supreme Court which it has done on various occasions. The recent incident brings out the issue of judicial federalism to the fore and highlights its functioning in India.
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What is judicial federalism?
Judicial federalism is a theory that the judicial branch has a place in the check and balance system in federalism. In other words, it relies on the fact that the judiciary has a place in the check and balance system within the federal government.
Components of judicial federalism
- Federalism in the entire government set up – To have federalism in the judiciary, there needs to be a federal system, of government. If there is no federal government, then there cannot be a successful federal judicial set up since that federal set up will be at some places be disturbed or its working is hampered by the ‘non-federal government and vice-versa.
- Control factor – The relationship between various courts and various organs of the federal government matter. This shows how the judiciary controls the executive and the vice-versa and how the higher courts in the judiciary control the lower courts.
- Independence factor – The independence of various organs of the federal government from the judiciary and the independence of various judicial organs from each other also forms an important component.
- Coordination factor – Unless the discrete units maintain proper coordination among one another, there cannot be materialized idea of a federation. To prevent the system from withering down, there should be a mechanism for full independence and at the same time there should be a mechanism for protecting and securing the system to keep it as ‘one’. This is needed to ensure the flow of the stream of justice.
Judicial federalism and organisation of the judiciary
- The organization of courts, i.e. the judiciary is the basic criterion for determining the federal character of the judiciary. This forms the structural aspect of the judiciary.
- The process by which the judiciary works and the mechanisms which are employed to serve justice form the functional aspect of the judiciary.
- Both the structural and the functional parts, and their coordination with each other decide as to whether what type of judiciary it is, i.e. federal, or unified or any else.
Judicial federalism in India
- The federal feature is the dominant feature of the Indian Constitution. And this is reflected in the features of the Constitution also. To say that we have a federal government means impliedly that the federal features are present in the organs of the government too.
- The organs are identified as being Legislature, Executive and the Judiciary.
- In comparison to the Legislature and the Executive, the Judiciary has limited rights in the socio-economic realm.
- Courts often lack the expertise and resources to decide social rights issues. Here comes the power of the judiciary to ask tough questions through judicial review and judicial activism.
- Thus, courts can hold the executive accountable in various aspects of government functioning.
- Similarly, in cases of the Executive and Legislative control of the Judiciary, we can note that transfer, and dismissal of the judges, have been assigned to the Executive and Legislature. But this has been done keeping the sanctity of the structure called judiciary intact i.e. nowhere the outside control is allowed to go beyond the say of the judiciary itself.
- At times, these provisions also come into question when it is noted that in the process of judicial appointments, there is a need for consultation with other superior members of the judiciary. This brings into question the functional aspect of judicial federalism.
- In the structural aspect of Indian judicial federalism, it can be seen that the Constitution of India speaks of a judicial structure across India. Since Judiciary is one of the fundamental organs of the government, therefore its structure, working, procedures etc. are also fundamental to the working of the government. And if the government type is ‘federal’, then those federal features must also be reflected in its judicial set-up.
- The Constitution of India provides for two sets of courts, one at the centre and the other in the states. Chapter IV of Part V and Chapter V of Part VI speaks of Union Judiciary and High Courts in states respectively. There are separate provisions for both which prescribe for their working which means that both derive their powers from the Constitution. Indian Judiciary is a unified one with the Supreme Court at its apex and the High Courts below it.
- Article 124 provides for the establishment of the Supreme Court, Article 125 to 128 have provisions regarding the judges of the Supreme Court, Article 129 declares the Supreme Court as a court of record, Article 130 to 134 & Article 138 spell out the jurisdiction of the Supreme Court, Article 134A to 136 have provisions for an appeal to the Supreme Court, Article 139 confers power upon the Supreme Court to issue certain types of writs.
- Articles 214 & 216 have provisions for the establishment and constitution of High Courts, Article 215 makes High Courts also courts of record (similar to Supreme Court), Article 217 to 224A has provisions regarding judges of the Supreme Court (some of them being similar to those for the Supreme Court judges), Article 225 & 226 are regarding the jurisdiction of the High Courts.
- Article 139A gives the power to the Supreme Court to transfer certain pending cases to itself and Article 141 makes any law made by the Supreme Court to be binding on all courts within the territory of India, the Supreme Court has original jurisdiction in matters of fundamental rights of the citizens under Article 32; this article being in Part III is itself a fundamental right.
- Article 227 spells out the superintendence of the High Courts over the other courts falling in its territorial jurisdiction and Article 228 provides for the transfer of cases by the High Courts from the courts subordinate to it, Article 235 provides for High Courts’ control over the courts subordinate to it.
- The Supreme Court is the supreme interpreter of the Constitution and the guardian of people’s fundamental rights. It is the ultimate appeal in all criminal and civil matters and the final interpreter of the law of the land and thus helps in maintaining uniformity of law throughout the country.
Is the Indian judiciary federal in nature?
Arguments in favour
- The Constitution considers the High Courts to be the highest judicial authority with the power of superintendence over its subordinate courts within the States. Various Articles in the Constitution point to the fact that High courts are not inferior to the Supreme Court of India. The reason obviously is to protect the autonomy or the independence of the State High Courts.
- The qualifications for appointment of the judge of the Supreme Court are not different than those prescribed for appointment as a judge of the Supreme Court.
- If we consider Article 218 of the Indian Constitution, it can be noted that the procedure adopted for the impeachment of the High Court judge is as same as that of a Supreme Court judge. It makes it clear that the framers of the Constitution had no intention to make High Courts subordinate to the Supreme Court rather it was placed on equal footing with the Supreme Court of India.
- Furthermore, Article 226 provides that every High Court shall have the power to issue the writs for enforcement of the fundamental rights and for any other purposes, whereas the provisions of Article 138 and Article 139 require a law made by the Parliament to enlarge or confer the jurisdiction under the Supreme Court of India.
- The High Courts have more powers since it is competent to hear matters in relation to all types of legal rights under Article 226 whereas the Supreme Court can hear only matters relating to Fundamental Rights under Article 32. It makes the fact clear that that the High Court is not in any manner subordinate to the Supreme Court and in fact is vested with more powers than the Supreme Court by the Constitution itself.
- Article 261 of the Constitution provides that a judgment rendered by a competent court of one State is conclusive on the merits of another State and that it will receive the same credit as the judgments of that other State itself. This ensures that there is uniformity of High Court orders across all the States in India and no High Court is subordinate to another one.
- In the case of Appellate jurisdiction of Supreme Court, though it is said that every case is capable of reaching the Supreme Court to hear its verdict in the matter involved yet there are sufficient bars created in this regard. For an appeal to lie under Art. 132, it is essential that the High Court should provide the necessary certificate for the same and the matter must necessarily involve a substantial question of law as to the interpretation of the Constitution. This forms an essential requirement for the purpose of bringing an appeal under Art.132. This practice not only highlights High Courts’ importance in the issue but also puts the point that High Courts are equally competent courts in settling matters, and at some times the Supreme Court has to be called in to keep the entire system intact.
- There are other instances as well which point to the federal nature of the Indian judiciary.
- In India, there is no division of powers between the general and provincial courts. There is no itemization done with regards to their area of working and there seems to be no exclusiveness in their working too, as there is no conclusive bar on any suit from reaching the Supreme Court. The entire system seems to be like ‘one’.
- As per Article 139A of the Constitution, there is a provision that allows the Supreme Court to transfer certain cases to itself. This obliterates the principle of federalism as it implicitly makes or shows the Supreme Court as being more competent than High Courts.
- As per Article 144, all authorities civil and judicial in the territory of India shall act in the aid of the Supreme Court. This entire constitutional scheme shows that more importance needs to be given to the Supreme Court, which is the highest court of the land. The entire judicial set- up is seems to be biased towards the Supreme Court.
- Not only the constitutional provisions but also the decisions given by the Supreme Court and the practices followed by it show that the judiciary in India is centrally organized and there exist no characteristics of federalism in it.
- In Durga Shankar Mehta v. Thakur Raghuraj Singh (1955), it was observed that Article 136 vests in the Supreme Court unrestricted powers by granting of special leave, against any kind of judgment or order made by a Court or Tribunal in any cause or matter and the powers could be exercised despite the specific provisions for appeal contained in the Constitution or other laws.
- Similarly, despite the presence of Article 226 to protect the fundamental rights by moving High Courts, the writ of the Supreme Court under Article 32 is given more importance. In the case of K. K. Kochunni v. the State of Madras, it was held that the right to move the Supreme Court was an absolute right and that the existence of alternative remedies was irrelevant. This same principle was reiterated in the case of Kharak Singh v. State of U. P.
- There are several occasions where the federalism of the Indian judicial system has been put into question. Such decisions bring down the principle of federalism and tend to ascribe unitary characters to the Indian Judiciary.
Given the above arguments, we can conclude that federalism in the judiciary is an integral part of any federal system and the separation of powers often cross boundaries. But given the limitations and to avoid friction, there is a need for the adoption of a federal approach keeping the federal structure intact as it is known that the classical theories of separation of power cannot be implemented in their real sense rather they need to be modified according to the prevailing needs.
- Critically analyse the system of judicial federalism in India.