The Supreme Court: Between the founders’ vision and modern challenges

Protecting itself from political meddling through collegium system, it solved one problem but created another: independence at democracy’s expense.

Supreme Court of India | Photo Credit: Wikimedia Commons

At the pinnacle of India’s national judicial hierarchy is the Supreme Court, with sweeping Constitutional powers. Legal scholars and lawyers point out that it has the widest jurisdiction in the world. Its predecessor, the Federal Court, was established in 1937; its primary function was to adjudicate disputes between the Central government and the provinces and interpret the Government of India Act 1935, which, along with the Indian Independence Act, 1947, served as the interim Constitution of India till the nation adopted its own Constitution on November, 26 1949.

Although its jurisdiction was limited, at a time when provincial legislatures were rarely functioning, several provinces were ruled by the central government, press censorship was rampant, and the executive had the power to circumscribe individual liberties. The Federal Court was impartial, independent, and the guardian of individual liberties against excesses by the executive.

Although part of the colonial administration, the Federal Court contributed significantly to India’s Constitutional development until it yielded to the Supreme Court on January 26, 1950.

Independence, integrity, impartiality

There was an apparent continuity, as the judges of the Federal Court continued to serve in the Supreme Court. But the Court was placed in an unprecedented situation. In the early months of 1947, even before India’s Independence, the Constituent Assembly appointed an ad-hoc committee comprising of five distinguished jurists—S. Varadachariar, Alladi Krishnaswami Ayyar, B.L. Mitter, K.M. Munshi and B.N. Rao—to prepare a report with recommendations on the central judiciary after Independence.

The brief report submitted in May of 1947 suggested that the successor to the Federal Court should have broader powers, exercise exclusive original jurisdiction in disputes between the Centre and States, have powers to decide upon the Constitutional validity of all legislative enactments, and have jurisdiction over enforcing the fundamental rights guaranteed by the Constitution.

Preamble of the Indian Constitution | Photo Credit: Wikimedia Commons

All recommendations made by the ad-hoc committee were accepted by the Union Constitution Committee chaired by Nehru, except one regarding the appointment of judges. The committee had recommended that the appointment of the judges of the Supreme Court should not be left to the unfettered discretion of the President and proposed two methods to appointment judges: first, by establishing an 11-member panel, comprising the Chief Justices of High Courts, members of Parliament and law officers, which would recommend three names; second, that the President’s nominee, in consultation with the Chief Justice of India (CJI), for a Supreme Court judgeship must be approved by a majority of seven out of 11 in the panel.

To ensure that the panel is both independent and accountable, it would be appointed for a fixed term. However, both these proposals were rejected by the powerful Union Constitution Committee and replaced with: A judge of the Supreme Court shall be appointed by the President in consultation with the Chief Justice of India and other judges of the Supreme Court and High Courts as may be necessary for the purpose.” This procedure, as recommended by the Union Constitution Committee, formed the original text of Article 124 (2) of the Constitution.

This consultative model gave significant but not exclusive weight to the CJI’s opinion, and eventually the ambiguity in the word “consultation” led to landmark judicial interventions.

A wake-up call

The declaration of Emergency by then Prime Minister Indira Gandhi on June 25, 1975, remains one of the most controversial periods in Indian political history. Civil liberties were suspended, the press was censored, and political opponents were imprisoned. The judiciary, which had traditionally been seen as the protector of fundamental rights, faced unprecedented challenges. Judicial appointments and transfers became a tool to control for the executive, which wielded its authority to ensure compliance. Judges perceived as dissenting or independent were sidelined, transferred, or overlooked for elevation. The Emergency marked a critical juncture in the Independence of the judiciary, exposing vulnerabilities in its autonomy.

But this period also acted as a wake-up call for the judiciary. In its aftermath, the judiciary reasserted its independence and established safeguards against executive overreach; the relationship between the judiciary and the executive over appointments underwent a seismic shift with the “Three Judges Cases,” leading to the creation of the collegium system. In the First Judges Case (1981), the Supreme Court ruled that the word “consultation” did not mean “concurrence,” giving the executive greater authority in judicial appointments. The Second Judges Case (1993) overruled the earlier decision, and the Court held that “consultation” required the judiciary’s primacy. This judgment introduced the collegium system in which a panel of senior judges, led by the CJI, would recommend appointments. In the Third Judges Case (1998), the Court clarified the collegium’s composition and procedure, expanding it to include the CJI and the four senior-most judges of the Supreme Court for appointments.

The collegium system became the cornerstone of judicial appointments, with the judiciary claiming primacy to protect its independence. However, this system was criticised for its lack of transparency in the appointment process; this propelled a reform to introduce a democratic layer, and almost 70 years later, in 2015, a system very similar to these recommendations of the committee attempted to be introduced as the National Judicial Appointments Commission (NJAC) in the 99th Constitutional Amendment Act. However, the Supreme Court struck down the NJAC in the Fourth Judges Case (2015), deeming it unconstitutional for compromising judicial independence.

The Court ruled that the presence of the Law Minister and eminent persons in the commission violated the separation of powers and allowed the executive to exert undue influence on the judiciary. The Court reinstated the collegium system, leaving the debate on reforms unresolved.

Between legacy and reform

Primarily, the political structure of the Republic of India is federal; however, the country has organised its judicial system in a purely unitary format. There is no judicial division of work between the Union and the State, and the laws are interpreted and litigated in a single court system. The Supreme Court is at the top of the pyramid in this structure, and below it are the High Courts. The Supreme Court does not exercise any direct administrative control over the High Courts. It is only through its extensive powers of review that the Supreme Court is in a position to scrutinise the decisions of the High Courts and enforce its decisions in the entire territory of India through Articles 141, 142 and 144.

The Constitution is a testament to India’s struggle for freedom. The fundamental rights enshrined in it form an integral part of its framework. These rights are designed to protect individual liberty, ensure equality, and promote justice in a democratic society. At the heart of safeguarding these rights lies the Supreme Court, the ultimate arbiter and protector. Empowered by the Constitution, the role of the Supreme Court and its judges transcends mere resolution of conflicts; it acts as a bulwark against tyranny.

The judges of the Supreme Court shoulder the responsibilities of ensuring that the Constitution’s promises of justice, liberty, and equality are not mere ideals but living realities for every Indian. This responsibility is anchored in Article 32, which empowers citizens to directly approach the Supreme Court for the enforcement of their fundamental rights.

The authority that the Constitutional courts have to issue various writs—habeas corpus, mandamus, prohibition, quo warranto, and certiorari—to uphold and enforce these rights calls for judicial statesmanship of the highest order.

We celebrated yet another year of the adoption of our Constitution, signifying the completion of a historic process of nearly three years of deliberation (from December 1946 to November 1949). This day symbolises India’s self-determination and culmination of the immense effort and vision that went into drafting a framework meant to govern a newly independent and diverse nation even before it came into force.

With the critical responsibility of safeguarding the Constitution and upholding the rule of law, the Supreme Court is more than a mere judicial institution; it is a sentinel of justice, equality, and liberty and the moral compass of the nation.

Rushda Khan is a lawyer practising in the Supreme Court.