The article discusses the idea of judicial federalism and autonomy of the High Courts.

Issue of transfer of cases from High Courts to Supreme Court

• 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.
• In Parmanand Katara v. Union of India (1989), the Supreme Court underlined 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.
• These High Courts among others have directed the state governments on various issues related to COVID-19 health emergency.
• However, Supreme Court 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.
• Therefore, the Supreme Court indicated the possibility of the transfer of cases to itself.

Issues with the SC’s move

• 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.
• In addition to the geographical reasons, the constitutional scheme of the Indian judiciary is pertinent.
•  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” since they “had been in existence since the 19th century”.
• Even otherwise, in a way, the power of the High Court under Article 226 is wider than the Supreme Court’s under Article 32.
• This position was reiterated by the court soon after its inception in State of Orissa v. Madan Gopal Rungta (1951).
• Judicial federalism has intrinsic and instrumental benefits which are essentially political.
• The United States is an illustrative case.
• The U.S. Supreme Court reviews “only a relative handful of cases from state courts” which ensures “a large measure of autonomy in the application of federal law” for the State courts.
• 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.
• Decentralisation, not centrism, is the principle.

Consider the question “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. However, transferring such cases should not impinge on judicial federalism. Comment.”

Conclusion

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.

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