The Federal Judiciary

While the scheme of Provincial Autonomy, the only democratic part of the Government of India Act, is in a state of attenuation, and the prospect of an early advent of the Federal system is receding, the Federal Court has been announced to function from the 1st October of this year. For some time to come this tribunal cannot be more than a phantom body, for until the Federal Legislature meets and decides to make it a Court of Civil Appeals, its jurisdiction will be confined to the decision of constitutional disputes. With the Federal structure yet to arise, even this sphere of work stands greatly reduced. The role of adviser to the Governor-General whenever the latter deems it expedient to consult it, is likely to be the main piece of work of the Federal Court. It may appear anomalous that there should be a Federal Court without the Federal Government, but constitutional curiosities are not rare in our country. The Act is imperative that the Court shall come into existence even though Federation may stand postponed. Though the creation of such a tribunal in these circumstances is unprecedented and in all probability will remain unimitated, no question of its legality arises.

But as we are sure to have the entire constitutional frame-work in force sooner or later, it is well to examine the structure and functions of the Federal Judiciary as provided for in the new Constitution. That such a tribunal is a necessity in a system of government wherein the sovereign power is divided between various bodies, is undoubted. In India, however, the question has to be considered from the additional standpoint whether we should not have a Court of Appeal for all India in respect of ordinary litigation between parties, subject to restrictions regarding the amount and the character of the questions involved. Ever since India came under the British Crown, the Judicial Committee of the Privy Council sitting in London has been the ultimate appellate authority for British India. In recent times there has been an agitation for the establishment of a Supreme Court in India itself, endowed with the same authority as the Privy Council. The question remained merely an academic issue until the Federation ideal came within the sphere of practical politics, and the possibility of the Federal Court discharging the duties of the Supreme Court arose. In the White Paper it is stated that since Indian opinion is far from being unanimous as to the necessity for a Supreme Court of Appeal, the matter should be left to the Federal Legislature to set up such a Court if so advised. The White Paper further provided that the Supreme Court should have appellate authority in respect of both criminal and civil cases if certain restrictions referred to therein are complied with. The note-worthy feature of the White Paper proposals is that the Supreme Court and the Federal Court are treated as distinct and separate bodies exercising their authority in their respective spheres.

When the question arose for consideration by the Joint Parliamentary Committee on Indian Constitutional Reform, a somewhat different view was taken regarding the position of the Supreme Court. While agreeing with the proposals for the Federal Court, the Committee do not consent to the creation of the Supreme Court as a body distinct from the Federal Court. They further take away altogether the criminal jurisdiction of the Supreme Court. The reasons given are interesting. The Committee think that if we have two separate judicial bodies, it would be impossible to avoid a certain overlapping of jurisdictions, owing to the difficulty of determining in particular cases whether or not a constitutional issue was raised by a case under appeal. This would involve the two Courts in undignified and undesirable disputes. The Committee’s reasoning is conclusive and it may be pointed out that such conflicts have not been unknown before, the most conspicuous instance being the quarrel between the Supreme Court in Calcutta presided over by Sir Elijah Impey and the Company’s Courts, during the time of Warren Hastings. The arguments for refusing to give the powers of a Criminal Court of Appeal to the Supreme Court are, however, unconvincing. At present, despite the serious restrictions on the functions of the Privy Council in criminal matters, criminal appeals go from India to London. There seems to be no justification for having a civil appellate authority in India and a criminal appellate authority in England. The Committee suggest that the Federal Court should sit in two divisions, one division hearing constitutional disputes and the other doing the work of the Supreme Court.

The Committee’s proposals have been embodied in the Act, as passed by Parliament. It is provided therein that the Federal Court should consist of a Chief Justice and a number of puisne judges not exceeding six. These judges are to hold office until the age of sixty-five, but they can be removed on the ground of misbehaviour, or infirmity of mind or body, by the Judicial Committee on reference being made to them. The qualifications for Federal Judgeship are the holding of the position of a High Court Judge in British India or in a Federated State for at least five years, or a position at the Bar as Barrister or Pleader for not less than ten years. The Federal Court is to be a Court of Record and is directed to sit at Delhi and such other places as the Chief Justice and the Governor-General may agree upon. The Federal Court has exclusive original jurisdiction in all disputes between any two or more of the following parties, i.e., the Federation, any of the Provinces, or any of the Federated States, if and in so far as the disputes involve a matter of legal right. Further, an appeal may be taken to the Federal Court from any judgment, decree, or final order of a High Court in British India, if any substantial question of Law as to the application or interpretation of the Act or any Order in Council made thereunder arises. An appeal also lies to the Federal Court from a High Court in a Federated State, that is to say, the highest Court in the territory of any Indian Prince who has joined the Federation, on the ground that a question of Law with respect to the application or interpretation of the Act or any Order in Council made thereunder has been wrongly decided. Authority is given to the Federal Legislature to provide that in civil cases an appeal shall lie to the Federal Court from the judgment of a High Court in British India. Consequentially the Legislature can abolish the right of direct appeal from a High Court in civil cases to the Privy Council. There is the further provision that the Governor-General can obtain the opinion of the Federal Court whenever a question of Law has arisen, or is likely to arise, of public importance. The Federal Court in its original jurisdiction can pronounce only declaratory judgments. In appeals from Federated Courts, letters of request are to be sent to the Ruler of the State to carry out the order of the Federal Court. All authorities, civil and judicial, throughout the Federation are directed to act in aid of the Federal Court, which has been given the same powers in respect of securing the attendance of persons, the discovery or production of documents, the investigation or punishment of contempts of court, as a High Court in British India. It is also stated that the Federal Court can give leave for an appeal to the Privy Council from its own judgments.

These provisions indicate in general outline the position of the Federal Court as laid down in the Act. It is difficult to say if the Federal Court will operate as a factor in the broadening of the illiberal Constitution with which India has been provided. If we take the example of the greatest Federal Court known to history, namely, the Supreme Court of the United States, we find that what was laid down over 150 years ago in the form of a sketchy written Constitution has been transmuted, by the process of judicial interpretation, into a powerful force which expands with the progress of events and adjusts itself to new conditions. The Supreme Court in America commands an amount of respect and confidence throughout the States which even the despotic sway of President Roosevelt is unable to shake. Again, we find in the case of Canada, the Judicial Committee in London have, by a long process of interpretation, imparted a momentum and elasticity to the dry bones of the constitutional framework which have enabled it to survive the onslaughts made on it in respect of its recent pronouncements invalidating some Canadian Acts. If, however, the Federal Court in India becomes the handmaid of the Executive, it will simply aid in accelerating the downfall of a system wherein the elements of reaction have predominant sway. The composition of the Federal Court, however, gives us the hope that it will act as a vigilant custodian of popular rights and hold the scales even between the contending parties.