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Insights into Editorial: A case for judicial federalism



‘Federalism’ is one of those good echo words that evoke a positive response toward many concepts as democracy, progress, constitution, etc.

The term has been seen to be applied to many successful combinations of unity with diversity, pluralism and cooperation within and among nations.

Judicial behaviour is another important factor that affects the working of Indian federalism.

The judicial behaviour is another important factor that affects the working of Indian federalism.

Judiciary has generally been protective of the federal structure of the constitution, especially in more recent decades.


Judiciary role in welfare of the public:

  1. In comparison to the legislature and the executive, what the judiciary can deliver in the realm of socio-economic rights is limited.
  2. Courts cannot build better health infrastructure or directly supply oxygen; neither are they functionally bound to.
  3. Courts often lack the expertise and resources to decide social rights issues.
  4. 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.
  5. In Parmanand Katara v. 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 times of COVID-19 health emergency:

  1. 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.
  2. They considered the pleas of various hospitals for oxygen supply. The Gujarat High Court issued a series of directions, including for laboratory testing and procurement of oxygen.
  3. The Nagpur Bench of the Bombay High Court was constrained to hold night sittings to consider the issue of oxygen supply.
  4. It directed immediate restoration of oxygen supply that had been reduced from the Bhilai steel plant in Chhattisgarh.
  5. The Delhi High Court directed the Central government to ensure adequate measures for the supply of oxygen. It cautioned that we might lose thousands of lives due to lack of oxygen.


SC wants national plan on COVID-19 situation, including on oxygen supply:

  1. As the country grapples with the current wave of COVID-19 pandemic, the Supreme Court took suo motu cognisance of the prevailing grim situation and said it wanted a “national plan” on issues, including supply of oxygen and essential drugs for treatment of patients infected with the virus.
  2. Taking suo motu cognisance of the prevailing grim situation across the country, a Bench said it would also consider the matter pertaining to the method and manner of COVID-19 vaccination in the country.


suo motu cognisance of the issue by the SC:

  1. In recent, the Supreme Court took suo motu cognisance of the issue in ‘Re: Distribution of Essential Supplies and Services During Pandemic’.
  2. It said, “Prima facie, we are inclined to take the view that the distribution of these essential services and supplies must be done in an even-handed manner according to the advice of the health authorities” and asked the Central government to present a national plan.
  3. In addition, SC 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.
  4. The court thus indicated the possibility of transfer of cases to the Supreme Court, which it has done on various occasions before.


Issue of transfer of cases from High Courts to Supreme Court:

  1. 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.
  2. However, what make the court’s usurpation disturbing are two well-founded observations regarding its contemporary conduct.
    1. One, 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.
    2. Two, where effective remedies were sought, when activists and journalists were arrested and detained, the court categorically stayed aloof. It acted as if its hands were tied.
  3. Lawyers will find it difficult to recall a significant recent case of civil liberty from the court where tangible relief was granted against the executive, except for rhetorical statements on personal liberty.

These features, coupled with the unhealthy characteristics of an executive judiciary, makes the court’s indication for a takeover disturbing.


Autonomy is the rule:

  1. Judicial federalism has intrinsic and instrumental benefits which are essentially political. The United States is an illustrative case.
  2. This basic tenet of judicial democracy is well accepted across the courts in the modern federal systems.
  3. The need for a uniform judicial order across India is warranted only when it is unavoidable.
    1. For example, in cases of an apparent conflict of laws or judgments on legal interpretation. Otherwise, autonomy, not uniformity, is the rule.


Public Health and Hospitals:

According to the Seventh Schedule of the Constitution, public health and hospitals come under the State List as Item No. 6.

There could be related subjects coming under the Union List or Concurrent List. Also, there may be areas of inter-State conflicts.

But as of now, the respective High Courts have been dealing with specific challenges at the regional level, the resolution of which does not warrant the top court’s interference.

The power of the High Court under Article 226 is wider than the Supreme Court’s under Article 32, for in the former, a writ can be issued not only in cases of violation of fundamental rights but also “for any other purpose”.



Decentralisation, not centrism, is the principle.  In the COVID-19-related cases, High Courts across the country have acted with an immense sense of judicial responsibility.

Deepening federalism and further involvement of localities seem to lead the way for a reasonable and stable political democracy.

This is a legal landscape that deserves to be encouraged. To do this, the Supreme Court must simply stay away.