Context: 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?

• When litigants or lawyers attempt to deliberately move their case to a particular judge or Court where they think the judgment could be more favorable, 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.

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.

Forum non-conveniens principle

• Many 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.

Supreme Court’s view on this practice

• Vijay Kumar Ghai vs. State of W.B: The Supreme Court termed forum shopping as a disreputable practice by the courts that has no sanction and paramountcy in law.

• Union of India & Ors. vs. Cipla Ltd. Case 2017: The Supreme Court laid down a functional test to be adopted for forum shopping. 

• The Court should see 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. 

• This functional test will determine whether a litigant is indulging in forum shopping or not.

• SC (2022) (Vijay Kumar Ghai vs. State of W.B.): Supreme Court termed forum shopping as a “disreputable practise by the courts” that “has no sanction and paramountcy in law”.