‘Forum shopping’ practice

Source: By Khadija Khan: The Indian Express

“I will not permit forum shopping”, said Chief Justice of India (CJI) DY Chandrachud last week to a litigant appearing before him on 19 May 2023. The remark came as the litigant mentioned his case before the CJI, seeking a hearing, although he had mentioned the same case a day before Justice KM Joseph.

What is the practice of forum shopping?

When litigants or lawyers attempt to deliberately move their case to a particular judge or Court where they think the judgment could be more favourable, they are said to be “forum shopping.”

Webster's dictionary defines forum shopping as the “practice of choosing the court in which to bring an action from among those courts that could properly exercise jurisdiction based on a determination of which court is likely to provide the most favorable outcome.”

Lawyers think about which is the right forum to approach as part of their litigation strategy. For example, one could directly approach the Supreme Court via a public interest litigation case instead of the concerned High Court because the issue could get more eyeballs.

However, an obvious effort to circumvent the process or avoid a particular judge is frowned upon. Judges have cited the injustice caused to the other party in the case and overburdening some courts over others and interfering with judicial process.

Even the US and UK courts have criticised the practice of forum shopping as something to be avoided or prohibited. However, most common law countries use the “forum non-conveniens” principle to prevent forum shopping, which gives the court discretionary powers to refuse to exercise its jurisdiction over a matter where another court, or forum, may more conveniently hear a case. Using this power, the court can dismiss a case in the interests of justice and the parties while allocating it to the appropriate bench.

The Supreme Court in its 1988 ruling in ‘Chetak Construction Ltd. vs. Om Prakash’ said, “A litigant cannot be permitted choice of the forum,” and that every attempt at forum shopping “must be crushed with a heavy hand.”

What is the Supreme Court’s view on this practice?

Last year, on 22 March 2023, an SC Bench of Justice S. Abdul Nazeer and Justice Krishna Murari in the case of ‘Vijay Kumar Ghai vs. State of W.B.’ termed forum shopping as a “disreputable practise by the courts” that “has no sanction and paramountcy in law”.

The court observed that despite condemning the practice, one of the respondents had filed three complaints, two in Delhi and one in Calcutta. Observing the timeline of the complaints filed, the court said that it indicated “the malafide intention” of the respondent, which was to harass the petitioners and “pressurise them into shelling out the investment.”

In the 2022 ruling, the court reiterated that forum shopping has been condemned by courts while referring to its 2017 ruling in ‘Union of India & Ors. vs. Cipla Ltd.’, which laid down a “functional test” to be adopted for forum shopping. “What has to be seen is whether there is any functional similarity in the proceedings between one court and another or whether there is some sort of subterfuge on the part of a litigant. It is this functional test that will determine whether a litigant is indulging in forum shopping or not,” the court said.

On 28 March 2023, the Jammu, Kashmir, and Ladakh High Court in ‘Dr. Khair-Un-Nisa and Ors vs. UT of Jammu and Kashmir and Ors’ imposed costs worth one lakh rupees on the petitioners for indulging in forum shopping by filing multiple petitions before different wings of the court, albeit having the same cause of action.

In its judgement, the court remarked, “Forum shopping is essentially a practice of choosing the Court in which to bring an action from among those Courts that could properly exercise jurisdiction based on a determination of which Court is likely to provide a most favourable outcome.”

Similarly, “Bench hunting” refers to petitioners managing to get their cases heard by a particular judge or court to ensure a favourable order, the court added. Relying on the 2017 SC ruling in ‘Kamini Jaiswal vs. Union of India’, the court 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.

On 26 April 2022, the Jodhpur Bench of the Rajasthan High Court in the case of ‘Dhanwantri Institute of Medical Science vs. The State of Rajasthan’ upheld an order imposing costs worth 10 lakh rupees on a party for engaging in forum shopping.

Going back to 27 July 2017, the Delhi High Court in ‘Rosmerta HSRP Ventures Pvt. Ltd. vs. Govt. of NCT of Delhi & Anr.’ imposed costs on a private company that it found was indulging in forum hunting in an arbitration matter.