TAKING AWAY KERALA HIGH COURT’S JURISDICTION OVER LAKSHADWEEP

It is widely reported that the Lakshadweep administration is considering shifting its legal jurisdiction from the Kerala High Court to the Karnataka High Court. 

This article seeks to examine the constitutionality of the contemplated move by an executive action. 

SOURCE OF JURISDICTION OF KERALA HIGH COURT OVER LAKSHADWEEP 

Originally called the Laccadive, Minicoy and Amindivi Islands, the islands were renamed Lakshadweep by the Laccadive, Minicoy and Amindivi Islands (Alteration of Name) Act, 1973. Lakshadweep is listed as item 3 the Union Territories List in Schedule I of the Constitution of India. 

The Kerala High Court exercises jurisdiction over Lakshadweep by virtue of Section 60 of the States Reorganisation Act, 1956. It is noteworthy that it is an Act of Parliament, no less. 

CONSTITUTIONAL PROVISIONS RELATING TO UNION TERRITORY AND ITS HIGH COURT

Extension of jurisdiction of High Courts to Union territories is dealt with in Article 230 of the Constitution. Clause (1) thereof states that the Parliament may by law “extend” the jurisdiction of a High Court to, or “exclude” the jurisdiction of a High Court from, any Union territory.

Article 231 provides for establishment of a common High Court for two or more States and a Union territory. 

Article 241 (1) states that the Parliament may by law “constitute” a High Court for a Union territory or declare any court in any such territory to be a High Court for all or any of the purposes of the Constitution. 

CONCEPT OF SEPARATION OF POWERS

This article would perhaps be incomplete without reference to the concept of “separation of powers”. It is one of the simplest, and yet one of the most important constitutional doctrines, and is hence best included here. 

Sovereign power actually comprises of three different kinds of powers, being:

1. Legislative power, or the power to make laws,
2. Executive power, or the power to execute (carry out) the law and
3. Judicial power, or the power to interpret and apply the law.  

Traditionally all three powers were concentrated in the hands of one person – the King. It was clear that this made the King dangerously powerful. There was no entity to check the power of the King and prevent his abuse of powers. This led to the idea of dividing the sovereign’s power into three separate and distinct branches, being the Legislative, Executive and Judiciary. Under the said concept, one branch shall not exercise the functions of the others and shall confine itself to its assigned domain. The concept also provides mechanisms for one branch to act as a check on the power of the other branches. 

Separation of powers is part of the basic structure of the constitution and is therefore non-negotiable, meaning, it can neither be amended out of existence nor watered down. 

JURISDICTION OF HIGH COURT IS WITHIN LEGISLATIVE DOMAIN 

It is evident from Articles 230, 231 and 241 of the Constitution that the Parliament, and the Parliament alone, is clothed with the power to deal with the jurisdiction of a High Court. As noticed above, it may do so by making law extending jurisdiction of a High Court to a Union Territory or may exclude an existing jurisdiction or may freshly constitute a dedicated High Court for a Union Territory or alternatively, declare any court in such territory to be a High Court for all or any of the purposes of the Constitution.

It is by virtue of an enactment of the Parliament (the States Reorganisation Act, 1956) that the Kerala High Court exercises jurisdiction over Lakshadweep. The executive, a body tasked with carrying out the wishes of the Parliament expressed through its laws, cannot take away, alter or water down a jurisdiction conferred by the Parliament. The Executive cannot even take away a jurisdiction conferred on one of its own institutions or officers, much less one conferred on an entirely different body, the Judiciary. 

The Executive is a body that is subject to the court’s jurisdiction. In this case, the Lakshadweep Administration as well as the Union Government are subject to the jurisdiction of the Kerala High Court. Permitting the Administration to do what is contemplated, without the checks and balances of Parliamentary oversight, would be akin to letting them engage in “bench hunting” or “Forum shopping”, the practice of a party choosing a judge/bench that he considers is likely to be favourable to him as compared to other judges/benches. It is deemed a corrupt practice. And, if I might add, if it’s not fair that one gets to choose which Police station shall have jurisdiction in one’s own case, equally, one shouldn’t get to choose which court shall have jurisdiction over one’s own case either. That must be left to the wisdom of a legislative body.

CONCLUSIONS

1. Matters of jurisdiction of High Courts over Union Territories are clearly outside of the Executive domain. It is a matter that falls squarely within the legislative domain.  
2. The Union government or the Lakshadweep administration has no constitutional competence to take away the jurisdiction of the Kerala High Court over Lakshadweep. 
3. Any action otherwise than by a law enacted by the Parliament that takes away or attempts to take away the jurisdiction of the Kerala High Court over Lakshadweep would be a clear violation of Constitutional provisions and an affront to the concept of Separation of Powers.