Forum Shopping

• 24 May 2023

For Prelims: Forum Shopping, CJI, Supreme Court, Principle of Forum non-conveniens.

For Mains: Forum Shopping, its disadvantages and Prevention.

Why in News?

Recently, the Chief Justice of India (CJI) has condemned the practice of Forum Shopping after a litigant mentioned the hearing before CJI although he had mentioned the same case a day before another Judge.

What is the Practice of Forum Shopping?

• About:
  • Forum shopping refers to the practice of deliberately choosing a specific court for a legal case in the hope of getting a favorable outcome.
  • Litigants and lawyers often consider this strategy as part of their litigation plan.
    • For example, they might opt for a higher court like the Supreme Court (SC) to gain more attention for their case. However, if someone is clearly trying to manipulate the system or avoid a particular judge, it is seen as unfair.
  • Similarly, “Bench Hunting” refers to petitioners managing to get their cases heard by a particular judge or bench to ensure a favourable order.
• Advantages:
  • It can allow plaintiffs to seek justice and compensation in a court that is more sympathetic to their claims or interests.
  • It can encourage competition and innovation among courts and judges to improve their efficiency and quality of service.
• Disadvantages:
  • Forum shopping has been criticized by judges because it can lead to injustice for the opposing party and create an imbalance in the workload of different courts.
    • Judges have cited the overburdening of some courts over others and interfering with judicial process.
  • It can undermine the authority and legitimacy of courts and judges by creating perceptions of bias or favoritism.
  • It can increase the costs and complexity of litigation by creating conflicts of laws and multiple proceedings.
• Discouraging Forum Shopping:
  • Even courts in the US and the UK discourage/prohibit forum shopping. In common law countries, the principle of "forum non-conveniens" is used to prevent the practice of Forum Shopping.
    • Common Law is a shared British heritage of the U.S., Canada, and the Commonwealth, and these countries have a legal system primarily based on common law principles.
  • This principle allows a court to refuse its jurisdiction over a case if another court is more appropriate to hear it. This helps ensure fairness and allocates cases to the right judicial authorities.

How Does Forum Shopping Affect Justice and the Judicial Process?

• It can compromise the principle of natural justice, which requires that every person should have a fair hearing before an impartial tribunal.
• It can violate the principle of comity, which requires that courts should respect and defer to each other’s decisions on matters of common interest.
• It can hamper the principle of finality, which requires that litigation should end at some point and not be prolonged indefinitely.

What is the Judiciary's View on Forum Shopping?

• Dr. Khair-Un-Nisa and Ors vs. UT of Jammu and Kashmir and Ors 2023:
  • The Jammu, Kashmir, and Ladakh High Court imposed costs worth one lakh rupees on the petitioners for indulging in forum shopping by filing multiple petitions before different wings of the court, despite having the same cause of action.
• Vijay Kumar Ghai vs. State of W.B. 2022:
  • The SC termed forum shopping as a “disreputable practice by the courts” that “has no sanction and paramountcy in law”.
• Dhanwantri Institute of Medical Science vs. The State of Rajasthan 2022:
  • The Rajasthan High Court upheld an order imposing costs worth 10 lakh rupees on a party for engaging in forum shopping.
• Union of India & Ors. vs. Cipla Ltd. 2017:
  • The SC laid down a “functional test” to be adopted for Forum Shopping.
    • The "functional test" laid down by the Supreme Court was to determine whether a litigant is genuinely seeking justice or engaging in manipulative tactics through forum shopping.
• Rosmerta HSRP Ventures Pvt. Ltd. vs. Govt. of NCT of Delhi & Anr 2017:
  • The Delhi High Court imposed costs on a private company that it found was indulging in forum hunting in an arbitration matter.
• Kamini Jaiswal vs. Union of India 2017:
  • The SC said that “unscrupulous elements” are always on the hunt to find a court or forum of their choice but are not permitted to do so by law.
• Chetak Construction Ltd. vs. Om Prakash 1988:
  • The Supreme Court emphasized that litigants should not have the freedom to choose the court for their convenience. The court stated that any attempt at forum shopping should be strongly discouraged.

Source: IE