A case for judicial federalism

NEWS The need for a uniform judicial order across India is unwarranted in COVID-19-related cases.

In comparison to the legislature and the executive, what the judiciary can deliver in the realm of socio-economic rights is limited.
Courts cannot build better health infrastructure neither are they functionally bound to, as they often lack the expertise and resources to decide social rights issues.
Instead, what they can do is to ask tough questions to the executive, implement existing laws and regulations, and hold the executive accountable in various aspects of healthcare allocation.
In Parmanand Katara Vs. Union of India (1989), the Supreme Court underlined the value of human lives and said that the right to emergency medical treatment is part of the citizen’s fundamental rights. As such, constitutional courts owe a duty to protect this right.

In the face of a de facto COVID-19 health emergency, the High Courts of Delhi, Gujarat, Madras and Bombay, among others, have done exactly that.
They have considered the pleas of various hospitals for oxygen supply and have directed the government to ensure adequate measures for the supply of oxygen.
For example, the Nagpur Bench of the Bombay High Court was constrained to hold night sittings to consider the issue of oxygen supply. It directed immediate restoration of oxygen supply that had been reduced from the Bhilai steel plant in Chhattisgarh.

On April 22, the Supreme Court took suo motu cognisance of the issue in ‘Re: Distribution of Essential Supplies and Services During Pandemic’.
The court thus indicated the possibility of transfer of cases to the Supreme Court, which it has done on various occasions before.
Under Article 139A of the Constitution, the Supreme Court does have the power to transfer cases from the High Courts to itself if cases involve the same questions of law.

Based on contemporary observation of court’s conduct:

The court has been indifferent to the actions and inactions of the executive even in cases where interference was warranted, such as the Internet ban in Kashmir.
Where effective remedies were sought, when activists and journalists were arrested and detained, the court categorically stayed aloof.
A characteristic feature of the apex court in the recent years is general lack of dissent in issues that have serious political ramifications.
These features, coupled with the unhealthy characteristics of an executive judiciary, makes the court’s indication for a takeover disturbing.
Though the respective High Courts have been dealing with specific challenges at the regional level, this does not warrant the top court’s interference. Hence, there is a need to take crucial lessons for judicial federalism in India.

Judicial federalism has intrinsic and instrumental benefits which are essentially political. The United States is an illustrative case.
The system of judicial federalism promotes national uniformity and subnational diversity in the administration of justice.
The need for a uniform judicial order across India is warranted only when it is unavoidable — for example, in cases of an apparent conflict of laws or judgments on legal interpretation. Otherwise, autonomy, not uniformity, is the rule.
In the COVID-19-related cases, High Courts across the country have acted with an immense sense of judicial responsibility. This is a legal landscape that deserves to be encouraged.
To do this, the Supreme Court must simply stay away. As in L. Chandra Kumar v. Union of India (1997), the Supreme Court itself said that the High Courts are “institutions endowed with glorious judicial traditions”.

https://www.thehindu.com/opinion/op-ed/a-case-for-judicial-federalism/article34408548.ece

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