A Case For Judicial Federalism

Context: A critical analysis on rising trends of judicial centralism in India, discussed in the context of Covid-19 health emergency.

Role of judiciary in the realm of socio-economic rights

• Limited by scope: Courts cannot build better health infrastructure or directly supply oxygen, neither are they functionally bound to.
• Constrained by: Lack expertise and resources to decide social rights issues.
• What Courts shall/can do? hold the executive accountable by asking tough questions, ensure implementation of existing laws and regulations.
  • Parmanand Katara v. UoI case, 1989: Supreme Court (SC) said that the right to emergency medical treatment is part of citizen’s fundamental rights and thus, constitutional courts owe a duty to protect this right.
• Covid-19 health emergency and the proactive role played by High Courts (HCs):
  • Gujarat High Court issued a series of directions, including for laboratory testing and procurement of oxygen.
  • Nagpur Bench of the Bombay High Court directed immediate restoration of oxygen supply that had been reduced from the Bhilai steel plant in Chhattisgarh.
  • Delhi High Court directed the Central government to ensure adequate measures for the supply of oxygen.
• SC interference prompting judicial centralism: SC took Suo-Motu cognisance of Covid-19 health emergency in ‘Distribution of Essential Supplies and Services During Pandemic’. SC may also order the transfer of cases to itself.
  • Constitutional provision: Article 139A of the Constitution, SC has the power to transfer cases from HCs to itself if cases involve the same questions of law.

Arguments against judicial centralism

• Scepticism arising from contemporary conduct:
  • Judicial indifference to actions of Executive: Handling of Internet ban in Kashmir.
  • Judicial conduct of categorically staying aloof: Where effective remedies were sought when activists and journalists were arrested and detained.
  • General lack of dissent in court in issues that have serious political ramifications: not only in the formally pronounced judgments and orders but also dissenting judges on the Bench are rare.
• Unhealthy characteristics of executive judiciary: Simply adjourning the cases when criticised.
• Criticism from HC Bar Associations: Criticised views of SC, as being reflected “arrogance of power” and “rank contempt for and disregard of the High Courts in the country”.
• Constitutional scheme demands a critical role from HCs: According to the 7^th Schedule of Constitution, public health and hospitals come under State List, prompting weightage to deal the cases at regional level by HCs.
  • Chandra Kumar v. Union of India case, 1997: SC said that HCs are “institutions endowed with glorious judicial traditions” since they “had been in existence since the 19th century and were possessed of a hoary past enabling them to win the confidence of the people”.
  • Wider constitutional powers of HCs: Power of HC under Article 226 (writ can be issued not only in cases of violation of fundamental rights but also “for any other purpose”) is wider than SC’s under Article 32 (writ can be issued only in cases of violation of fundamental rights).
• Importance of judicial federalism:
  • American system of judicial federalism: Largely succeeded in promoting national uniformity and subnational diversity in the administration of justice.
  • Need to uphold Judicial autonomy: HCs across the country have acted with an immense sense of judicial responsibility in the application of laws.
  • Caution: Need for a uniform judicial order across India is warranted only when it is unavoidable, Eg. in cases of an apparent conflict of laws or judgments on legal interpretation.

Conclusion: Autonomy (not uniformity) and decentralisation (not centrism), shall be the rules and principles that should be encouraged in the legal landscape of India.