On 26 January 1950, the Constitution of India came into effect. Two days later, on 28 January, the Supreme Court held its first sitting under our Constitution in the Court Chamber of Parliament House. The court functioned from the Parliament House till it moved to the present building in 1958. This was the first time our revered judicial institution exercised sovereign jurisdiction over the entire country.
As per The Hindu report published on 29 January 1950, “Under its new jurisdiction, the Supreme Court has not only appellate authority in civil and criminal matters over the whole of the Indian Union…but it has original jurisdiction in regard to the enforcement of Fundamental Rights guaranteed under the Constitution.”
Yes, it was a solemn occasion, but what’s of greater interest was what eminent jurists from India’s first Attorney General to Chief Justice of India said on that fateful day. They laid out the vision of what role the Supreme Court of India was expected to play in the new republic.
On dispensing justice
In his speech, the first Attorney general, MC Setalvad, said, “In building a nation, alive to its national and international duties the court will play a great and singular role and establish itself in the consciousness of the Indian people.” Further to this, he said, “Like all human institutions, the Supreme Court, we hope, will earn reverence through truth.”
Responding to his speech, the first Chief Justice of India, Justice Sir Harilal Jekisundas Kania, said, “In endowing the Supreme Court of India with very wide powers, the Constituent Assembly, the Assembly representing the voice of the people through their elected representatives, has shown complete confidence in the court as the final body for dispensing justice.” In a rather optimistic tone, CJI Kania went on to add, “We hope to deserve that confidence. We trust that the people of India will also maintain the independence, honour and dignity of the Supreme Court.”
Examining the long arc of our Republic’s history, the court has enjoyed many moments as a dispenser of justice, and for the most part, the institution has maintained its position of reverence amongst the Indian public. The court’s judgement in the 1973 Kesavananda Bharati vs State of Kerala case is one such example where the court stood up to its task.
The judgement set substantive limits on Parliament’s power to amend certain parts of the Constitution and gave birth to the “basic structure” doctrine, under which, “basic features” are the fundamental rights granted to individuals, among other provisions.
Of course, there were other cases like the Maneka Gandhi vs Union of India in 1977, when a seven-judge bench asserted right to personal liberty as enshrined in Article 21 (Right to Life and Personal Liberty) of the Constitution, following the horrors of the Emergency when all Fundamental Rights were suspended for 21 months between 1975 and 1977.
But there have been massive failures like the Emergency, where the Supreme Court failed to stand up for some of our most Fundamental Rights, including the Right to Life.
Freedom from the Executive, Legislature
“Clothed with the duty of performing such important functions, it is obvious that in all democratic countries, the Supreme Court should be quite untouchable by the Legislature or the executive authority in the performance of its duties. Under the Constitution of India, the Supreme Court is established to safeguard the Fundamental Rights and liberties of the people. An independent Supreme Court…will have far reaching influence on the constitutional history and progress of the Union of India,” said Justice HJ Kania.
Once again, the court’s record in this regard has been mixed at best. There have been shining moments like the 2015 Shreya Singhal vs Union of India judgement, which struck down Section 66A of the Information Technology Act, 2000, on grounds that it violated the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India.
But in recent years, the court hasn’t challenged the Executive as much as it should. For example, the court is yet to rule on cases challenging the legality of electoral bonds, Citizenship Amendment Act (CAA), the Centre’s amendments to the Unlawful Activities Prevention Act (UAPA) and the amendments made to the Right to Information Act, 2019. Whichever side of the debate one stands, it’s hard to refute these are important cases involving civil liberties.
Role of the Courts and Interpreting the Constitution
“In a democratic country, the people make the laws through their Legislature. It is not the function of the court or supervise or correct the laws passed by the Legislature as an overriding authority…As it is often stated, in cases of hardship, the court tries its best to do justice between the parties, but if a clear provision of law exists, it has to administer the law and not make one,” noted the Justice Kania in his inaugural address.
This establishes a clear separation of powers between the judiciary and the legislature. However, interestingly, Justice Kania also had this to say about the role of the court.
“India has chosen to have a written constitution and the duty of interpreting that constitution with an enlightened liberality falls on the Supreme Court. The Supreme Court will declare and interpret the law of the land and with the high traditions behind the judiciary of this country, we are convinced that work will be done in no spirit of formal or barren legalism. It will be our endeavour to interpret the constitution not as a rigid body, but as a living organisation having within itself the force and power of self-government,” he said.
Although Justice Kania goes on to add how the court “under the colour of interpretation cannot alter or amend the law”, the fact of the matter is that the Supreme Court has stepped in during instances when the Fundamental Rights of its citizens were under threat.
In this regard, the 1973 Kesavananda Bharati vs State of Kerala judgement, which according to some “saved Indian democracy”, has played a critical role in reimagining the court’s role.
In a landmark judgement issued by the Special Bench of the Supreme Court comprising 13 judges, the court ruled that Article 368 (which confers the right to amend the Constitution upon Parliament) “does not enable Parliament to alter the basic structure or framework of the Constitution” by a slender 7-6 margin.
Appointment of Judges
Justice Kania expressed his wish to appoint judgments on the basis of “merit” and wished that “political considerations will not influence appointments to High Courts”.
As he went on to add, “It was understood that if the Chief Justice did not approve of an appointment, it was not made by the Government. Under the Constitution of India, we believe a statutory recognition is given to this convention by providing that the Chief Justice will be consulted before the appointment of High Court judges.”
This process has gone through multiple revisions with power swinging from the executive to the judiciary. At present, the court goes by the collegium system of appointing judges to the High Court and Supreme Court. Evolved through a series of three judgements passed by the Supreme Court and not created by an Act of Parliament, the Supreme Court Collegium is led by the Chief Justice of India and four other senior-most judges of the court.
The High Court collegium, meanwhile, is led by the Chief Justice of that particular court and four other senior-most judges of the court. The candidates recommended by a High Court collegium require the assent of the Chief Justice of India and the Supreme Court collegium before the government is consulted on the matter. For the higher judiciary, the apex court collegium vets the list of potential candidates, and the government plays a limited role.
And finally, one of the last and most important things talked about by Justice Kania in his inaugural address was freedom from political parties. “The Supreme Court as an all India court will stand firm and aloof from party politics and political theories. It is unconcerned with changes in the Government. The Court stands to administer the law for the time being in force, has good will and sympathy for all, but allied to none,” he said.
Seventy-one years later one wonders — has the court maintained this neutrality? This will require an entirely new debate considering the recent assertions by our senior judges on the political leaders and other controversies.
Having said that, what was discussed on 28 January 1950 remains relevant till this day, and it’s important to remember the original vision for the highest court of the land.
(Edited by Yoshita Rao)
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