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”. Much has been written about the federal structure in relation to the legislature and the executive. We now examine the Indian judiciary and the need to strengthen the federal nature of our judiciary.
India is a union of States. 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.
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 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. Dr. 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.”
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).
An equality of power
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. Famously, the Chief Justice of the Bombay High Court, Justice M.C. Chagla and the Chief Justice of the Madras High Court, Justice P.V. Rajamannar, when offered seats in the newly formed Supreme Court, rejected the offer, preferring to be Chief Justices of prestigious High Courts than being ordinary judges in a newly formed court.
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. Therefore, 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 (a significant number, at least) stood out as beacons of freedom, even as the Supreme Court failed in this duty.
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. 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. This Collegium also has the power to transfer judges and chief justices from one High Court to another. 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.
A centralisation and effects
This has inevitably led to the balance tipping in favour of a centralisation of the judiciary. The greater the degree of centralisation of the judiciary, the weaker the federal structure.
In the United States, empirical research by the legal researcher, Ilya Somin, shows that the U.S. Supreme Court is far more likely to strike down a state statute as unconstitutional than a federal statute. This research leads to the conclusion that judicial review by a centralised judiciary tends toward unitarism (the opposite of federalism), and the author says, “Courts face much weaker constraints when they strike down state legislation, especially state laws that are disapproved of by national political majorities... The federal government and sympathetic state governments elsewhere in the country may even support such judicial intervention.” In Nigeria, a similar federal country, research has shown that the Supreme Court favours the jurisdiction of the central government over the State units, and this has manifested itself in recent litigations over mineral rights and subsoil rights, where the Supreme Court has favoured interpretations which support the rights of the centre over the States.
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.
Moving to the second factor, an aggressively interventionist Supreme Court leads many to approach it directly as a panacea for all ills befalling the nation. In 2018, some individuals from Delhi directly filed a petition in the Supreme Court to curtail Deepavali celebrations. The Court promptly entertained the writ petition and issued directions that Deepavali could be celebrated for only one or two hours in the evening. This led to an uproar because people in South India celebrate Deepavali in the morning. Earlier, in another example, the Supreme Court spent days deciding the height of the dahi handi during Gokulashtami celebrations.
We see the Supreme Court interfering in matters which are clearly of local importance, having no constitutional ramifications. The Court itself observed recently, “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.”
These are very wise words, but the reality is that the Supreme Court does entertain these frivolous matters.
Every time the Supreme Court entertains an appeal against a High Court decision, it second guesses the High Court. It sends out the message to the litigant: ‘It does not matter that the High Court ruled against you, you can take one more chance with this appeal.’
Every time the Supreme Court entertains a public interest litigation on some matter which could just as effectively have been dealt with by the High Court, what the litigant hears is: ‘You do not need to approach the High Court, you can directly file your claim here, and you will not only get your hearing, you will get publicity too.’
Parallel judicial hierarchies
The third of the factors identified by us is 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.
The effect of this can be easily imagined, whether it be the 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.
Political scientist and historian Tocqueville writes that in the decades immediately preceding the French Revolution there was a gradual erosion in the powers of the nobles living in the rural parts of France, and a gradual aggrandisement of powers in the hands of the aristocracy in Paris. The conclusion that this very learned author arrives at is that all central units have a natural tendency to aggrandise power to themselves from the state units, believing that centralisation enables them to discharge their duties more effectively in relation to the entire state. But in reality, the weakening of the state units sets off a weakening of the entire body of the state, which gradually ossifies into irreversible decay.
We conclude by hoping that the Supreme Court itself recognises the importance of self-abnegation and restores the federal balance by re-empowering the High Courts. This will be in the best interest of the nation.
- 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.
Srinath Sridevan is Advocate, Madras High Court. Ananya Pattabhiraman is a student of law, Symbiosis Law School, Hyderabad