A nation is governed basically by three principal organs of government which play crucial or determining factors in the progress and growth of the nation. These three organs are namely legislative which frames the law keeping in mind the needs and demands of the citizens, the second is executive which is responsible for the successful implementation of the laws and the last and most essential part is the judiciary which is responsible for overseeing that the laws, rules, statutes, regulations made are not misused by government or any public official in the discharge of the duty.
The principal organ of the government which is the judiciary is imparted with the power and skills to impart justice to common people if they face any injustice or atrocities by the government or by any other common people. The Judiciary plays a dominant role in the present world in rendering justice to common people who suffer injustice or gruesomeness by any member of society. The judiciary is also responsible for keeping checks and balances on the activities of the legislature and executive so that they do not exercise their power affecting common people. Therefore, the Judiciary is seen as an organ that is seen as a last resort for getting justice if no one listens to their problems or quarrels. Therefore, the presence of the judiciary ensures a stable, secure, and intact society necessary for establishing a developed and progressive society.
HISTORY OF THE JUDICIAL SYSTEM OF INDIA
The Judiciary system existed long way back in ancient India and also during the Mughal period. But it is not necessary to go back to what is called the British period as the modern judicial system is based basically on the British judicial system. In the British period, there were many small courts such as Choultry, Mayor’s, and Admiralty existing before the beginning of the Adalat System in the year 1772. The beginning of the Adalat System in the year 1772 saw the establishment of Sadar Diwani Adalat and the common law system in India. The modifications and amendments in the Diwani Adalat were carried out from time to time to make necessary changes in the Adalat System.
The Regulating Act saw the establishment of the Supreme Court of Judicature at Calcutta instead of the Mayor’s Court functioning under the Charter of 1753. A similar Supreme Court of Judicature was established in Madras and Bombay having the same power and jurisdiction as the Supreme Court of Judicature at Calcutta.
The history of India’s legal system reached a significant turning point in 1861. In the provinces of Bengal, Bombay, and Madras, two parallel judicial systems predated this. The Supreme Court of Judicature, which operated in the presidential towns, was one of the Crown’s tribunals. In the provinces outside of the presidential towns, the Company courts and Sadar Diwani Adalat courts at the top operate. Two parallel systems were discovered to be cumbersome over time. It was seen to be highly desirable that more harmony and uniformity be formed in judicial administration. As a result, two sets of courts merged in 1861, and three High Courts were established in each of the three provinces. The federal court was subsequently established by the Government of India Act of 1935 and had more power than the high courts.
MEANING OF JUDICIARY
The judiciary is the part of the government responsible for interpreting the law, resolving conflicts, and providing justice to all citizens. The judiciary is seen as the protector of the Constitution and the watchdog of democracy. The judiciary is the sole organization of the government which is responsible for granting justice to the people if they face any atrocities or challenges by the government or other people.
FUNCTIONS OF JUDICIARY
1- Access to proper and equitable justice- The main or chief function of the judiciary is to resolve the conflict and to secure a settlement of disputes. The court will examine the facts and circumstances of the case and apply its legal knowledge in delivering justice to common people. The court has the power to punish and give imprisonment to the person who is found guilty of an offense.
2-Safeguarding the Constitution- The SC, India’s highest court, is responsible for upholding the Constitution. Any jurisdictional disputes between the federal government and the states, or between the legislature and the president, are settled by the court. Any law or governmental action that violates a constitutional requirement is declared unlawful or unconstitutional by the judiciary. It’s referred to as “judicial review.” The advantage of judicial review is that it upholds people’s fundamental rights and preserves peace within a federal state’s union and units.
3- Interpretation and application of laws- The Judiciary helps in basic understanding of the law which cannot be interrupted by common people and also helps its proper and effective implementation. The main purpose of the law is its proper application that is how it is to be applied for effectual and constructive administration of society.
4- Protection of Rights- There are numerous rights guaranteed under Indian Constitution that act as a protector to the citizens in putting forward their ideas or carrying out their day-to-day activities without any interruption by the Government. If a citizen faces any issue with any of the rights given under the Indian Constitution, he can directly move to court for implementing his rights.
5- Creation of judge-made law- It is correctly stated that the law evolves with the changing time. The law changes with the change in the demands and the characteristics of society and it is necessary to change or modify the law with changing times as it helps in better deliverance of justice. Therefore, some laws, regulations, statutes, or rules are made by judges keeping in mind the demands of the people in the present time.
WHAT IS FORUM SHOPPING IN THE JUDICIARY?
Forum shopping is a legal term that refers to the practice of selecting a court or jurisdiction that is most favourable to a particular case. It is a strategy used by litigants to gain an advantage in a legal dispute by choosing a court that is more likely to rule in their favour. This practice is often criticized for being unethical and for undermining the integrity of the legal system.
TYPES OF FORUM SHOPPING
The idea of forum shopping may be divided into two main categories.
1- Domestic Forum Shopping- Domestic forum shopping happens when a plaintiff chooses between two or more courts inside the legal system of a single nation.
2- Transnational Forum Shopping- Transnational Forum Shopping is when there is a choice between the courts of two or more nations’ legal systems, and the plaintiff utilizes it.
PRACTICE OF FORUM SHOPPING
The practice of Forum Shopping is common in many countries for getting the decision of a legal trial in one’s favour by employing or using the court or jurisdiction which is most approving to that particular case. Forum shopping can be held within a country’s jurisdiction as well as outside its jurisdiction (Transnational Forum Shopping). In general, it can be compared to the Bench Hunting process in Judiciary. Forum shopping can occur in several ways. One way is by selecting a court that has a history of ruling in favour of a particular type of case or litigant. For example, if a company is facing a lawsuit from a consumer, it may choose to file the case in a court that has a history of ruling in favour of businesses. Another way forum shopping can occur is by selecting a jurisdiction that has more lenient laws or regulations. For example, if a company is facing a lawsuit related to environmental regulations, it may choose to file the case in a jurisdiction with less strict environmental laws.
Forum shopping can also occur internationally. In some cases, litigants may choose to file a case in a foreign country where the laws are more favourable to their case. This can be particularly advantageous in cases involving intellectual property or international trade disputes.
ETHICAL IMPLICATIONS OF FORUM SHOPPING
Forum shopping is often criticized for being unethical. Critics argue that it undermines the integrity of the legal system by allowing litigants to manipulate the outcome of a case by choosing a court or jurisdiction that is more likely to rule in their favour. This can lead to inconsistent rulings and can erode public trust in the legal system.
However, proponents of forum shopping argue that it is a legitimate strategy that allows litigants to protect their interests and ensure a fair outcome. They argue that it is no different than selecting a lawyer or expert witness who is more likely to support their case. There have been many issues or argument which has raised the question of whether Forum Shopping is a modern time for being ethical or not.
DELETERIOUS EFFECTS OF FORUM SHOPPING
1- Unfairness to the opposite party- The party which chooses to forum shopping often leads to injustice to the opposing party as it court will completely reject the arguments advanced by the other parties to put forward their point of view or their arguments in the case.
2- Opposing the principle of law- The court has from time to time highlighted the principle of Audi Alteram Partem which goes by the saying that the other party shall not be condemned unheard. If the plaintiff or any party chooses the practice of Forum Shopping then it will particularly affect the principle of Audi Alteram Partem.
3- Imbalance of workload in the court- The court has to face a useless and unofficial workload as the court was overburdened with the number of cases of Forum Shopping.
4- Obstructing the legal system- The system which is designed to work in a proper, systematic, standardized, and structured way is interrupted due to the practice of forum shopping. Interruption in the working of the legal system delays the time of the deliverance of justice to the other party.
5- Eroding the credibility and supremacy of the judiciary- In Forum Shopping there is the perception of biases and favouritism towards a particular party which undermines the credibility and supremacy of the judiciary. The people approach the judiciary with the view that it will be able to impart decisions without any biasness and the involvement of any erroneous activity. The involvement of any illegal or illicit practice with bring down the faith the people is having in the judiciary.
INDIAN JUDICIARY ON FORUM SHOPPING
The Indian legal system does not provide the idea of forum shopping with a unique definition. The notion of forum shopping has, nevertheless, become more prevalent in the Indian legal system because of obiter dicta and judicial observation in India. The Indian judiciary has often denounced litigants’ forum shopping as an abuse of authority and reprimanded it.
OTHER COUNTRIES VIEWS ON FORUM SHOPPING
The viewpoint of other countries on the topic of forum shopping is the same as India’s stand. Even US and UK courts discourage or outlaw forum shopping. The concept of “forum non-conveniens” is applied in common law nations to prohibit forum shopping.
The United States, Canada, and the Commonwealth all have a similar British background with common law, and these nations’ legal systems are largely founded on common law precepts.
According to this theory, a court may decline to consider a matter if another court would be a better fit. This promotes justice and assigns cases to the appropriate legal authorities.
RECENT SUPREME COURT OBSERVATION
The first case where the problem or issue of forum shopping was raised was the case of Om Prakash v. Chetak Construction Ltd[1] where the Supreme Court of India highlighted that parties to a dispute should not be allowed to select the court of their choosing. Any effort to switch venues should be strongly discouraged, the court said.
In the Union of India & Ors. v. Cipla Ltd case saw the SC establish a “functional test” for Forum Shopping. The Supreme Court’s “functional test” was designed to ascertain if a petitioner is actually looking for justice or is merely using forum shopping as a kind of deceit.
In Vijay Kumar Ghai v. State of W.B. 2022[2], the Supreme Court described forum shopping as a “disreputable practice by the courts” that “has no sanction and paramountcy in law”.
In the case of Dr. Khair-Un-Nisa and Others v. UT of Jammu and Kashmir and Others 2023, the Jammu, Kashmir, and Ladakh High Court fined the petitioners one lakh rupees in costs for engaging in forum shopping by submitting numerous petitions to various branches of the court while maintaining the same claim.
CONCLUSION
The courts have described forum shopping as dishonest behaviour that is without legal authority and penalty. It might be difficult for litigants to decide whether to go to a consumer court or speak with the appropriate regulatory body. Courts have denounced it and recognized it as a repugnant practice. The ability to select a forum cannot be granted to the litigants due to the existence of explicit laws addressing the question of jurisdiction. The practice of forum shopping is widespread not just in India but also in other nations. However, subsequent court rulings have helped to simplify the law. It goes without saying that if such a standard is not followed, there is a great chance that forum-shopping will occur, which has no legal authority and unquestionably has no sanctity. If the same is permitted to continue, it is likely to bring about anarchy, whimsy, and caprice and, in the end, undermine confidence in the judicial system. It is not acceptable to promote this.
[1] (1998) 4 SCC 577
[2] Criminal Appeal No 463 of 2022
Author: Animesh Nagvanshi
Juris Centre 