The Supreme Court of India has come to occupy the spotlight in public discourse and consciousness. There is added scrutiny on duty of the Court as ‘the upholder and protector of the majesty of law and dispenser of justice’ in words of Lord Denning, the great master of law and language.
The Supreme Court of India came into being on 26th of January. 1950. The Supreme Court is situated at Tilak Marg, New Delhi. Earlier, it functioned from the Parliament House before moving to its present seat. If we look back at the seven decades past, the Court has experienced many ups and downs. On many occasions, it has upheld its duty as the custodian of the Constitution, while sometimes being marred by controversies with regard to its judgments. Nevertheless, the Supreme Court has stood the test of times. While most people have amicable trust in the Court, the same cannot be said for all. The Supreme Court has become the focal point of political debates and is sadly being dragged into a mire of political controversy. Its image has certainly tarnished to some extent and this is certainly an issue of concern for one of the most powerful Courts of the World. Here, we will be analyzing some of the bittersweet moments in the history of the top Court and what challenges lie ahead.
On 24th of April, 1973, the Supreme Court made the most important decision in its history. A mammoth and unprecedented panel of 13 judges of the Supreme Court in the Kesavananda Bharati v/s State of Kerala case, by a 7-6 majority, decided that Parliament’s power to amend the Constitution was limited. This verdict was significant considering that the Prime Minister at that time, Indira Gandhi, enjoyed a brute majority in Parliament that was large enough to have constitutional amendments enacted. The Court further stated that “Parliament could make changes to the Constitution without altering the basic structure of the Constitution.” This decision created rankles in the state machinery and top legal officers of the Government began exploring methods to nullify it. Nevertheless, this verdict infused public confidence in the judiciary especially when the country was going through the turmoil of the mid-1970s.
Another critical judgment was delivered three years after the Kesavananda judgment, and most importantly in the midst of the Emergency. When threats to national security, whether real or imagined, are cited, the courts often tend to freeze. When US President Franklin Roosevelt’s signing of an order to relocate Japanese Americans to internment camps in the name of national security was challenged, the US Supreme Court abdicated its responsibility to uphold fundamental rights. Justice Robert H. Jackson dissented that day, lamenting that “the Court for all time has validated the principle of racial discrimination.” India’s corresponding moment was the ADM Jabalpur judgment of 1976, where the Court denied its citizens the most cherished of fundamental rights. This was a huge setback to the general public at large, and resulted in immense anguish and disappointment across the length and breadth of India. ADM Jabalpur’s case was a dark hour in the history of the Supreme Court and continues to haunt it till date. Another subject of controversy and public wrath was in relation to enactment of the Armed Forces Special Powers Act (AFSPA), in the North East. On the issue of the Naga People’s Movement of Human Rights v/s Union of India, the Court took almost four decades to decide upon the legislation and ultimately upheld it. In fact, these petitions were first filed in the Gauhati High Court way back in 1980. The courts have upheld the most draconian national security laws with remarkable consistency, even though many have had to suffer the consequences of such laws in practice. \
Yet, there is still a beacon of hope and trust in the top Court exemplified by several judgements. In 2017, on the subject of whether the Right To Privacy should be declared a fundamental right, a 9 judge bench of the Supreme Court in the Justice (Retd.) K. S. Puttaswamy v/s Union of India case not only declared the right to privacy as a fundamental right by a unanimous verdict, but also overruled the ADM Jabalpur judgment. This was a big milestone considering that it was likely to overrule constitutional changes to a wide array of legislations such as the legislation criminalizing homosexuality. And the top Court did so. A five-judge bench under the then Chief Justice Dipak Misra declared Section 377 of the Indian Penal Code (IPC) as invalid and ultra vires (unconstitutional). In fact, one of the five judges on the panel, Justice Indu Malhotra, observed that “Homosexuality is not an aberration but a variation of sexuality”. The natural identity of a person should be treated to be very essential to his being. Non- acceptance by any notion and punishment by law on some obsolete idea is preposterous.
In 2018, the Top Court made two significant decisions relating to gender justice. One was the Sabarimala verdict and the other was decriminalizing Section 497. These two verdicts were a key milestone in the fight for gender justice and women empowerment. And in fact, the Supreme Court remarked that any provision that treats women as unequal calls for the “Wrath of the Constitution”. For far too long, we have failed miserably to recognize the true nature of a civilized society. A civilized society receives more warmth and respect when it respects the individuality and dignity of the woman. Individual dignity is a key hallmark of a civilized society. The said concept is further strengthened when a woman is treated on par with a man. Any provision that might have been an obstruction to this concept in the past may have to meet its epitaph with the efflux of time. It is time for us to bid adieu to such archaic and discriminatory laws and practices that slaughter the very individuality and core identity of a woman. And it is also time for Indian society to give due consideration to these aspects. Equality should be the governing parameter.
Yet, the Supreme Court till recently has found itself marred in controversies that have dented its reputation. The January, 2018, press conference by the top 4 judges of the Court- Justice J. Chelameswar, Justice Ranjan Gogoi, Justice Madan B. Lokur, and Justice Kurian Joseph alleged lacunae in the allocation of the cases and “bench fixing”, stunning many observers. This was an unprecedented event in the glorious history of the Honourable Supreme Court.
A year later, the then Chief Justice, Mr. Ranjan Gogoi, faced sexual harassment charges from a Supreme Court employee. This event not only undermined the top Court’s image, but also caused, to some extent, loss of public confidence in the judiciary. Another key issue concerning the Supreme Court is the Collegium system of “judges appointing judges.” Citizens are bereft of information on how the appointment of judges takes place. Although the Supreme Court struck down the NJAC in 2015, much remains to be done with regard to reforms in the collegium system. In fact, SC judge Justice D.Y. Chandrachud said that” It was high time that substantive standards for choosing judges were formulated and placed in the public realm to promote confidence in the appointment process.”
The Supreme Court is certainly facing turbulent times which need immediate redressal in order to ensure the administration of justice. The Court is faced with a slew of petitions ranging from the CAA to Article 370, among others. It will be interesting to see how the Court interprets these two important cases. And finally, the Court needs to ensure that there is no delay of justice as “justice delayed is justice denied.”
By Avinash Burman
BSc.(H) Chemistry, Hindu College
Kesavananda Bharati v/s State of Kerala, 1973
ADM Jabalpur v/s Shivkant Shukla, 1976
Naga People’s Movement of Human Rights v/s Union of India, 1998
Justice K.S. Puttaswamy (Retd.) v/s Union of India, 2017
Navtej Singh Johar v/s Union of India, 2018
Indian Young Lawyers Association & Ors. v/s State of Kerala & Ors. 2018
Supreme Court Advocates- on -Record Association & Ors. v/s Union of India, 2015