Divided Laws in a Unified Nation: Territorial Application of High Court Decisions
Volume 2 Issue 3 (2009)
The fate of the Naz Foundation decision, until the Supreme Court decides on the appeal before it, rests upon the territorial applicability of the Delhi High Court judgment. This paper argues that at present the question of territorial application of a High Court judgment is unsettled as the existing precedent of the Kusum Ingots case is not decisive on the point. The paper evaluates the merits and demerits of various solutions, such as reintroduction of hitherto repealed Articles 131A and226A of the Constitution, or intervention by the legislature or the judiciary. The key problems with adopting solutions suggested hitherto would be the possibility of failure on part of the Supreme Court or the legislature to notice a situation where a disparity in the law exists in different states, increased delay in deciding an issue in case of an extra reference being made to the Supreme Court or the legislature for intervention, loss of a stage of appeal or possibly stripping the High Courts of jurisdiction to enforce Fundamental Rights when constitutionality of a Central legislation is in issue. The paper then suggests an interesting solution whereby High Courts, after granting interim relief where necessary, shall submit constitutional questions to Regional Benches of the Supreme Court for decision on the limited issue of constitutionality, and that the problem of delay caused by shuttling between the high court and the Supreme Court would be offset by the benefit of uniformity in the law.