Context

The article examines the need to strengthen the federal nature of our judiciary.

Federalism in India

• India is a union of States.
• Part of basic structure: 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.
• A midpoint between unitarism and confederalism: Federalism is a midpoint between unitarism which has a supreme center, to which the States are subordinate, and confederalism wherein the States are supreme and are merely coordinated by a weak center.
• Role of judiciary: 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.

Nature of judiciary in India: Federal judiciary

• 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 rights of federal units.
• The Indian Federation though a dual polity has no dual judiciary at all.
• Single integrated judiciary: 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.

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.
•  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 favor of the central court. 

Erosion of standing of 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.
• 1] 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 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.
• 2] 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
• 3] 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 favor 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.
• We see the Supreme Court interfering in matters which are clearly of local importance, having no constitutional ramifications.

Impact on the federal structure

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

Conclusions

• 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 the constitution
• 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.

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