Judicial Federalism: India's Perspective

Politics May 31, 2021

Judicial federalism refers to the separation of judicial authority between federal courts and state courts. Under Article 139A of the Constitution, the Supreme Court does have the power to transfer cases from the High Courts to itself.

The Supreme Court underlined that the right to emergency medical treatment is part of the citizen's fundamental rights in Parmanand Katara v. Union of India(1989). Constitutional courts have the duty of protecting this right but in the surge of Covid - 19, High Courts have directed the state on various medical emergencies.

In addition, The Supreme Court issued an order asking the State governments and the Union Territories to "show cause why uniform orders" shouldn't be passed thereby passing the case to itself. This creates a lot of tension, because according to the Seventh Schedule of the Constitution, public health and hospitals come under the State List as Item No. 6 and there could be many grey areas of inter state conflicts.

The High Courts have been dealing with regional issues without the interference of the top court especially in the times of the pandemic very well. This is a legal landscape that has to be appreciated and requires the Supreme Court to just stay away.

Even otherwise, in a way, the power of the High Court under Article 226 is wider than the Supreme Court's under Article 32. Judicial Federalism has very subtle and instrumental political benefits. A good example is of The United States. The U.S Supreme Court only reviews a limited number of cases from state courts which guarantees a large measure of autonomy in application of federal law.

The need for such a uniform judicial order across our country is called for when it is unavoidable. Otherwise 'Autonomy, not uniformity' is the rule following the decentralisation, not centrism principle.

This article is written by The Paradigm's Sr. Content Editor Riya Rajayyan

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