From the “Chamber of Princes” in Parliament House, to the magnificent building on Bhagwan Das Road, the Supreme Court of India has come a long way.
The Supreme Court had its inaugural sitting on the January 28, 1950. It was attended by, apart from the first six judges of the Court, the Chief Justices of various High Courts, the first Attorney General, the Advocates General of States, as well as the Prime Minister, the Deputy Prime Minister, and various other dignitaries. In the last seven decades, the Court has withstood the test of time and the onslaught of social, political and economic changes in the country.
Thanks to the robust Constitution that we have given to ourselves, the Court has, apart from being the final arbiter of disputes, zealously safeguarded the precious rights of citizens. There has, however, been a dark patch in the history of the Court, when during the Emergency, it let down the citizenry and shied away from its solemn duty to preserve the rights of the citizens.
Barring aberrations like these, the Court has served as an exemplary democratic institution. “Sentinel on the qui vive” is how Chief Justice Patanjali Shastri described the role of the Court when it came to protecting the rights of the citizens. The principles enunciated by the Court while interpreting the Constitution and the statutes have found recognition in other jurisdictions as well.
Although envisioned and established as the successor to the Federal Court, the Supreme Court has far wider jurisdiction than its predecessor. In fact, the Supreme Court of India enjoys a much wider jurisdiction as compared to the highest courts of appeal in most common law countries and also in the United States. While appellate jurisdiction has been conferred on the Supreme Court in civil and criminal matters, there has always been a consistent thought that the primary task of the Court should be to interpret the Constitution. Borrowing the words of Professor Felix Frankfurter (before he became a judge) the first Attorney General for India MC Setalvad said at the inauguration of the Supreme Court that the foremost task of the Court is to interpret the Constitution. It is interesting that Setalvad made this observation while describing the Supreme Court as the "supreme tribunal of the Indian Union," having wide appellate jurisdiction. Setalvad also drew the attention of the Court that the Constitution had a detailed enumeration of fundamental rights, and “(o)n the Court will fall the delicate and difficult task of ensuing to the citizens the enjoyment of his guaranteed rights consistently with the rights of society and the State.”
Replying to the welcome address of the Attorney General, Chief Justice MH Kania said that the people of India have desired and established by their choice that the Supreme Court is the final Court of Appeal. Chief Justice Kania also noted:
“In a democratic country the people make the laws through their legislatures. It is not the function of the Court to supervise or correct the laws passed by the legislature as an overriding authority. It is its function and duty to point out, when examining the acts of individuals or of executive authority purporting to be done under some Act of the legislature, the lacuna or loopholes only with the object that, if so desired, the legislative authority may put matters right.”
This sentiment of a conservative role of the Court was seen in operation in the first decade of the exposition of the Constitution. More than seven decades later, current Attorney General for India KK Venugopal echoed the view of Setalvad. More recently, these views were recorded in an order of the Supreme Court. Given the constitution of the Court, the vastness of its territorial jurisdiction and the mammoth numbers of disputes that flood the Court, it is only justifiable to suggest that the Supreme Court should function strictly as a Constitutional Court and that individual and other ordinary disputes should attain finality at the level of regional courts of appeal. This significant thought has been sown and it deserves due and expeditious attention by all the stakeholders.
Given the quasi-federal nature of our Constitution, the Supreme Court has a unique relationship with the High Courts. It is not the Court of a “federation,” but remains the final court of appeal for the entire country. No direct administrative or supervisory control is exercised by the Supreme Court over the High Courts. The observation of Justice Vivian Bose that “….this Court has general power of superintendence over all Courts in India” has to be read in the context of the wide appellate jurisdiction of the Supreme Court.
In an article published in the Law Quarterly Review, the late TR Andhyarujina spoke about the great creative role of the Supreme Court of India in promoting social goals and ideals of the Constitution and how the Court invoked and animated the broad eclectic spirit of the Constitution by filling up its framework with flesh and blood. Likewise, there has been a great deal of debate on the functioning of the Court in its journey over the decades. References to scholarly writings and debates highlight the need and importance of academic evaluation of the judiciary, its role and contribution. There is a great tradition of scholarly criticism.
In its long journey, the Supreme Court has had aberrations when it was remiss in interpreting the Constitution when called upon to protect the cherished freedom of citizens. The majority judgment in the Habeas Corpus case was criticised by HM Seervai in the following terms:
“Ordinary men and women could understand Satan saying ‘Evil be thou my good’, but they were bewildered and perplexed to be told by four learned judges of the Supreme Court that, in substance, the founding fathers had written into the Emergency Provisions of our Constitution, ‘Lawlessness be thou our law'."
Seervai was of the view that the Supreme Court inflicted on itself an injury in the Habeas Corpus case. He further argued that the majority judgments in the First Judges Case inflicted an even deeper wound on the Supreme Court, because those judgements subordinated the judiciary to the executive in the matter of appointment of judges.
Over the years, as a Court vested with the power of judicial review, of legislative and executive action, the Supreme Court has not hesitated in striking down unconstitutional and arbitrary action of the State. The proactive Court that the country saw in the immediate aftermath of the Emergency is an important part of its glorious history. Almost five decades ago, the largest bench of 13 judges limited the power of Parliament to amend the Constitution, and laid down what we now commonly call the Basic Structure doctrine. In the aftermath of the Emergency, even the strongest critics of the Basic Structure doctrine realised its need.
While the damage caused by the judgment in Habeas Corpus case was undone by Parliamentary intervention and by judicial pronouncements, it is heartening that the Court has thereafter been zealously preserving and promoting the rights of citizens. For example, in Maneka Gandhi, the Court expanded the scope of Article 21, and read the “due process clause” into the right to life. The Court also devised and developed a unique jurisdiction of public interest litigation (PIL) – to enable the protection of the rights of those who cannot knock on the doors of the Court. The robust PIL jurisdiction, which has led to some abuse by quarters with vested interests, has by and large ensured the expansion of Part III, especially in the sphere of environmental protection.
In recent times, the Court has outshone any other Constitutional Court in any jurisdiction by adopting a path-breaking and progressive approach in interpreting the Constitution. Reversing its earlier view, the Court in 2018 held that the right to privacy is a fundamental right. Likewise, draconian laws like Section 66-A of the Information Technology Act, which abridged the right to freedom of speech, have been declared unconstitutional. Section 377 of the Indian Penal Code criminalising homosexuality has been read down. Emancipation of women as a constitutional goal became a reality when the Court declared Triple Talaq unconstitutional and ensured Permanent Commission for women in the Armed Forces. In the Sabarimala case, the Court ensured entry of women of all ages into the temple. However, the seminal questions relating to the width of religious freedom qua the jurisdiction of the Court is an ongoing debate and pending adjudication.
Former Chief Justice of India MN Venkatachalaiah observed “it has been rightly said that if American judges are the most powerful on earth, so too American law schools and legal writers are the most influential.” That reminds us that at 73, the Supreme Court is yet to get a “distinguished jurist” as a judge - as contemplated under Article124(3)(c) - although several judges in the last seven decades have distinguished themselves as eminent jurists.
As the Supreme Court turns 73, it continues to inspire hope in the citizenry as the guardian of the Constitution. Academic discussion on the functioning of the Court serves as an indispensable audit in a vibrant democracy. At a time when the courts are functioning virtually - something that would have been unthought of at the first sitting of the Supreme Court - the Court has adapted to change in the manner of hearing, but continues on the path of dharma, true to its motto - “Yato Dharmastato Jaya” (Where there is Dharma, there is victory).
Raghavendra S Srivatsa and Amit Pai are Advocates-on-Record at the Supreme Court of India.
Excerpts taken from the Proceedings of the Inaugural Sitting of the Supreme Court of India on January 28, 1950.