The Supreme Court's Role in Indian Democracy

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The Supreme Court of India opened on 28 January 1950, two days after the Constitution came into force. It replaced the Federal Court of India, created under the Government of India Act of 1935, and it also ended the practice of appealing Indian cases to the Judicial Committee of the Privy Council in London. It began with a chief justice and seven other judges. Its sanctioned strength has been raised repeatedly by Parliament and now stands at thirty four judges including the chief justice. It sits in New Delhi in a building on Tilak Marg whose central wing and flanking courtrooms were designed to suggest a pair of scales. Unusually for a national apex court, it almost never sits as a single body: it hears most cases in benches of two or three judges, and constitutes larger constitution benches of five or more only when a substantial question of constitutional interpretation arises.

Its jurisdiction is wide by international standards. It has original jurisdiction over disputes between the Union and the states or between states. It hears appeals from the twenty five high courts in civil and criminal matters, and under Article 136 it may grant special leave to appeal from almost any court or tribunal in the country, a discretionary power that funnels an enormous volume of litigation upwards. It may give advisory opinions when the President refers a question to it. And under Article 32 any person may approach it directly for the enforcement of a fundamental right, a provision B R Ambedkar called the heart and soul of the Constitution during the drafting debates, because a right without a remedy is decoration.

The basic structure doctrine

The court's most consequential contribution to constitutional law anywhere is the doctrine of basic structure. Through the 1950s and 1960s Parliament and the court fought over whether the amending power in Article 368 was unlimited, with property rights and land reform as the immediate battleground. The court said in the Golak Nath case of 1967 that fundamental rights could not be amended away; Parliament responded with further amendments asserting its supremacy. The matter came to a head in Kesavananda Bharati v State of Kerala, decided in April 1973 by a bench of thirteen judges, the largest ever assembled in India, after months of argument. By the narrowest of margins the court held that Parliament may amend any part of the Constitution but may not alter its basic structure or essential features. It deliberately declined to give an exhaustive list of what those features are, leaving later benches to identify them case by case: judicial review, free and fair elections, federalism, secularism and separation of powers have all been so identified.

The doctrine was tested almost immediately. During the Emergency declared in June 1975, the court delivered in ADM Jabalpur v Shivkant Shukla in 1976 what is generally regarded as its worst judgment, holding by four to one that during an emergency a detainee had no enforceable right to approach a court against unlawful detention. Justice H R Khanna dissented and was passed over for the office of chief justice. The judgment was expressly repudiated four decades later in the 2017 privacy case, in which nine judges unanimously held that the right to privacy is a fundamental right protected under the Constitution. In between, the court expanded Article 21, the guarantee of life and personal liberty, into a broad protective clause covering fair procedure, livelihood, a clean environment, health and dignity, beginning with the Maneka Gandhi decision of 1978.

Public interest litigation, judicial appointments and the criticisms

From the late 1970s a group of judges, notably P N Bhagwati and V R Krishna Iyer, relaxed the rule that only an injured party may sue. Under what became known as public interest litigation, any public-spirited person could bring the plight of prisoners, bonded labourers, undertrials or slum dwellers before the court, and letters were sometimes treated as petitions. The court appointed commissioners to investigate facts and issued continuing directions supervised over years. The results include the 1997 guidelines on sexual harassment at the workplace, which functioned as law until Parliament legislated in 2013, and long-running mandates on air pollution, forests and prison reform. Admirers see a court giving voice to people whom the political system ignored. Critics, including some judges, argue that continuing mandamus turns judges into administrators without the expertise, information or accountability that administration requires.

Who becomes a judge is the other permanent argument. The constitutional text says judges are appointed by the President after consultation with the chief justice. In a series of decisions in 1981, 1993 and 1998 the court reinterpreted consultation to mean concurrence and created the collegium, a body of the senior-most judges that effectively selects its own successors. Parliament tried to replace it in 2014 with a National Judicial Appointments Commission including the law minister and eminent persons; the court struck that amendment down in 2015 as a violation of judicial independence, itself part of the basic structure. The collegium survives, and is criticised across the political spectrum for opacity, for the absence of written reasons, and for delays caused by the government simply sitting on recommendations it dislikes.

The court's other chronic problem is volume. Tens of thousands of matters are pending before it and tens of millions before the courts below, and the discretionary appeal power that gives it reach also floods it. The power of the chief justice as master of the roster, deciding which bench hears which case, drew unprecedented public criticism in January 2018 when four of the senior-most judges held a press conference to complain about it. None of this has reduced the court's centrality. Questions that in other democracies are settled by legislatures, from the decriminalisation of consensual homosexual conduct in 2018 to the invalidation of the electoral bonds funding scheme in February 2024, arrive in India as constitutional cases. Whether that reflects the strength of the judiciary or the weakness of the political branches is a fair question, and it is asked often.

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