• The interference in the power of High Courts by tribunals.
High courts:
  • For the framers of our Constitution, high courts, occupied a central position
  • They were conceived as a forum for adjudicating disputes under the Constitution, Central and State statutes before they moved to the Supreme Court
  • HC’s jurisdiction was more extensive than the SC’s
  • Parliament has inflicted damage on high courts with rampant tribunalisation
  • Tribunals have replaced high courts for disputes under the Companies Act, Competition Act, SEBI Act, Electricity Act, Consumer Protection Act among others
  • Any person aggrieved by an order of an appellate tribunal can directly appeal to the SC, side-stepping the high court
  • Three main issues related to rampant Tribunalisation
  • These tribunals do not enjoy the same constitutional protection as high courts
  • The appointment process and service conditions of high court judges are not under the control of the executive
  • The enormous institutional investment to protect the independence of high courts is dispensed with when it comes to tribunals
  • Many tribunals still owe allegiance to their parent ministries
  • Tribunals are also not as accessible as high courts
  • For example, there are just four benches of the Green Tribunal for the whole country
  • In comparison, high courts were easily accessible for environmental matters
  • Conferring a direct right of appeal to the Supreme Court from tribunals has changed the Supreme Court from being a constitutional court to a mere appellate court
  • It has become a final clearing house for every appeal under every statute
  • The Supreme Court should be a court of last resort deciding cases of the moment, and not a final forum with an all-embracing jurisdiction over disputes ranging from a custody battle to the scope of a municipal by-law
  • If high courts were to exercise appellate jurisdiction over orders of tribunals, they would act as filters
  • Enabling the Supreme Court to confine itself to those substantial questions where there is divergence among high courts
  • The high courts are the training grounds for future SC judges
  • When high court judges deal with several cases under a particular area of law, they carry with them the benefit of their experience and insights to the SC
  • When high courts are side-stepped in favour of tribunals, Supreme Court judges hearing appeals from tribunals would have to deal with the finer nuances of disputes under specialised areas of law for the very first time
  • This is not ideal for a court of last resort
Original jurisdiction of the SC
  • The jurisdiction of high courts is also undermined by the SC when it directly entertains various writ petitions
  • When the Supreme Court exercises original jurisdiction, it deprives the citizen and the state of the right to challenge potentially erroneous orders
  • A classic instance is the Supreme Court’s ruling in the 2G case
  • To overcome this ruling, the President had to invoke the advisory jurisdiction of the SC
  • The ordinary citizen enjoys no such privilege
  • This difficulty becomes even more acute when the SC takes on a legislative role by framing guidelines in the larger public interest
  • Neither the individual nor the state has an effective remedy to challenge these norms
The way forward
  • It has been asserted that when the Supreme Court decides an issue, it avoids conflicting judgments of the high court
  • This is untrue. The SC is in a better position to resolve a dispute when it is confronted with two conflicting high court rulings on the same issue
  • If high courts lose their prominence, India’s justice delivery system will be the principal loser

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