Chapter III SUPREME COURT AND JUDICIARY UNDER THE INDIAN CONSTITUTION

Transcription

1 Chapter III SUPREME COURT AND JUDICIARY UNDER THE INDIAN CONSTITUTION

2 66 CHAPTER III Supreme Court and Judiciary Under The Indian Constitution The Indian judiciary at present owes its origin and powers to the Constitution of India, 1950 which is the fundamental law of the land. As the Indian Constitution does not fit into either purely unitary category or federal category, the judiciary under it has many unique features compared to the judiciaries under the British and United States of America Constitutions. However in order to do justice to the discussion on the present Indian judiciary with special reference to the Supreme Court, one must dig into the legal and constitutional history of India. In tracing out the limits of judicial power of the Indian Courts, this study adopts the famous advice of Justices holmes who said that a page of history is worth a volume of logic.1 Therefore, it is with the past history that one must begin Position of Indian Judiciary before Constitution : Infact it would be a misnomer to call the different courts functioning before the Independence, a unified judiciary. This is because there was no uniform judicial system existing in Indian sub-continent either before the arrival of the Brtishers on the scene or after the arrival/. During the 17th Centruy though the East India Company had established important trading settlements at Bombay, Madras and Calcutta, the company was not in a position to disturb the indigenous legal system that prevailed and was applicable in various parts. The concept of justice varied according to the rulers and their religion in particular. There was a vast difference between the Civil and Criminal justice systems and the same continued til the East India Company succeeded in obtaining the grant of Diwani 2 of Bengal, Bihar and Orissa in New York Trust Co. vs. Eisner, 256 US 345 (1921) at Fiscal and civil administration.

3 67 from the then Moghul Emperor Shah Alam. The Criminal jurisdiction continued to remain with the Nawab seated at Moorsheedabad. (a) Company s Courts : Subsequently, under the provisions of the Regulating Act of 1773, the first Governor-General Warren Hastings introduced a well refined judicial system at the subordinate level which came to be called Adalat system. Under this system there was clear division between the administration of Civil Justice and Criminal Justice. The task of administration of Civil Justice in the areas controlled by the company was vested in Mofussil Diwani Adalat and Sadar Diwani Adalats. The Criminal Courts under this Adalat system were Mofussil Fouzdari Adalat and Sadar Nizamat Adalat. An appeal from the Civil Courts could be made to the Supreme Court at Calcutta but an appeal from the Criminal courts could be made only to the Nawab who delegated that function to the Deputy Nawab. But this Deputy or Naib Nawab was a puppet in the hands of the Britishers who actually controlled the Nawab by reducing him to only a figure head. The pertinent point is that all these adatat courts were part of the companies judicial system and were established and maintained by the company only. It is needless to mention that the company was not a sovereign entity but only a commercial venture. The company s Civil Justice system underwent certain reforms during the regime of Governor General Cornwallis who in 1792 separated the revenue and judicial functions both of which were vested in the collectors hitherto. The collectors were, henceforth, entrusted purely with executive work of revenue collection. The Government was thus deprived of the power to interfere in the administration of laws. Judicial institutions similar to those established in Bengal were introduced in the presidency of Madras in Four Circuit Courts

4 68 and a Court of Criminal Appeal consisting of the Governor and Council were established. In Bombay Magistrates, zillah Judges, and courts of circuits exercised criminal jurisdiction. A special court also existed for trail of political offences. Hindus were tried by their own criminal law, Parsis and Christians by English Law.1 Thus various Revenue, Civil and Criminal courts were set up by the company by virtue of powers and jurisdiction derived from Indian rulers and were known as company s Courts, as distinguished from Crown Courts, set up under British Royal Charters and Statutes of Parliament. (b) Royal Courts Apart from the Company s Courts aforementioned, there existed certain Courts established by the Emperor and they came to be called Royal or Crown Courts. Whereas the Mayor s Courts, and Recorder s Court formed part of the subordinate royal judiciary, the first higher royal judiciary that was established was the Supreme Court of Judicature at Calcutta. This Court was established under a Royal Charter, in 1774 by virtue of the power conferred under the Regulating Act of 1773, by the British Parliament. This Supreme Court at Fort William consisted of a Chief Justice and three other judges, all baristers of not less than five year s standing, appointed by the crown. This court enjoyed full Civil, Criminal and eclessiastical, jurisdiction, and it was empowered to administer English Law to all British subjects and persons in employment of the Company. Its judgments were made appealable to the Privy Council in England, subject to certain restrictions. The Recorder s Courts at Madras and Bombay were replaced by the Supreme Courts in 1801 and 1823 respectively. These Supreme Courts also exercised similar jurisdiction and powers as the Supreme Court at Calcutta. 1. AnandC.L., Constitutional Law And Histoiy of Government of India Act, 1935andfhe Constitution of India, 7th. Edn., (Allahabad, 1982) p. 106.

5 67 from the then Moghul Emperor Shah Alam. The Criminal jurisdiction continued to remain with the Nawab seated at Moorsheedabad. (a) Company s Courts : Subsequently, under the provisions of the Regulating Act of 1773, the first Governor-General Warren Hastings introduced a well refined judicial system at the subordinate level which came to be called Adalat system. Under this system there was clear division between the administration of Civil Justice and Criminal Justice. The task of administration of Civil Justice in the areas controlled by the company was vested in Mofussil Diwani Adalat and Sadar Diwani Adalats. The Criminal Courts under this Adalat system were Mofussil Fouzdari Adalat and Sadar Nizamat Adalat. An appeal from the Civil Courts could be made to the Supreme Court at Calcutta but an appeal from the Criminal courts could be made only to the, Nawab who delegated that function to the Deputy Nawab. But this Deputy or Naib Nawab was a puppet in the hands of the Britishers who actually controlled the Nawab by reducing him to only a figure head. The pertinent point is that all these adatat courts were part of the companies judicial system and were established and maintained by the company only. It is needless to mention that the company was not a sovereign entity but only a commercial venture. The company s Civil Justice system underwent certain reforms during the regime of Governor General Cornwallis who in 1792 separated the revenue and judicial functions both of which were vested in the collectors hitherto. The collectors were, henceforth, entrusted purely with executive work of revenue collection. The Government was thus deprived of the power to interfere in the administration of laws. Judicial institutions similar to those established in Bengal were introduced in the presidency of Madras in Four Circuit Courts

6 Thus it can be seen that during the company s de facto rule of the British India, there existed two sets of Courts viz the Company s courts and the Royal Courts with their respective jurisdictions left clearly undefined. This multiplicity of systems led to many a controversy between the judiciary on one hand and the executive on the other. The noteworthy fact is that there was no uniform system of administration of justice through out India as those territories under the company s rule followed one system and other territories under the Control of the Indian Princes followed their respective systems. Even among the territories which were under the British Company's control followed a system which had a dual system of courts i.e., the company s courts and royal courts which in turn applied different principles of law on different parties.1 A major change in the judicial system in India, was introduced only after the British Government took over the reigns of the company s territories under its direct rule after the first war of Independence in With the object of establishing a uniform and common judicial system, the High Courts Act, was enacted by British Parliament with the title. 'An Act for establishing High Courts of judicature in India on 6th August, The main change that was introduced in the then existing system was the amalgamation of the Company s Courts and-the Royal Courts by abolishing them. In their place three High Courts of judicature were established at Calcutta, Madras and bombay. The High Courts consisted of a Chief Justice and Pusne judges not exceeding fifteen as might be appointed by Her Majesty.4 On the establishment of the High Court, the Supreme Court, the Sadar Diwani Adalat and the Sadar Nizamat Adalat were abolished and all the records before them were transferred to the High Courts Rama Jois M, Legal & Constitutional History of India, Vol. II (Bombay, 1990), p. 198, and 25 Viet. C The full text of the Act can be seen in the C.P.C. by Mulla, Vol. II, pp Section 2 of the Act. 5. Section 8 of the Act.

7 70 The High Courts were invested with vast jurisdictions viz Civil, Criminal, admiralty, vice-admiralty, testamentary, intestate and matrimonial jurisdictions, original and appellate and all such powers and authority that might be conferred by letters patent.1 They were also vested with extra-territorial jurisdiction.2 Thus the Act of 1861 had ushered in major changes in the Indian Judicial System. This change in the system was preceded by the establishment through out the country, of a uniform system of laws.3 Gradually, other High Courts were established at the places other than Calcutta, Madras and Bombay.4 5The Constitution, Organisation, jurisdiction and powers of the High Court were almost similar to those of Calcutta, Bombay and Madras. However certain changes were introduced subsequently under the High Courts (Amendment) Act, 1911, the Government of India Act, 1915, and the Government of India Act, (c) Federal Court: The Government of India Act, 1935 provided a Federal system of Government for India Legislative power was therefore distributed between Central Legislature and Provincial Legislatures. Under a Federal Constitution, setting up of a Court to decide cases involving the question of legislative competence of the provincial or Central Legislature as the case may be is essential. To achieve this very purpose, a Federal Court was established under Section 200 of the Government of India Act, Pursuant to the said provision, the Federal Court of India was established in 1937, on 6th December; The number of Judges excluding the Chief Justice was initially fixed at 6s 1. Under Section 9 of the Act. 2. Ibid and S The codification and simplification of laws was one of the greatest reforms reflected during that period. The charter Act of 1833 paved way for it. 4. At Agra in at Allahabad in 1875, at Oudh in 1877, at Patna in 1916, at Lahore in 1919 and at Nagpur in Under section 200.

8 but it could be raised by presenting an address by the Federal Legislature to the Governor General praying for an increase. 71 The retirement age of the judges was fixed at 65 and they were to be appointed by the Governor-General. It was made a Court of Record. The Court was invested with original, Appellate and Advisoiy Jurisdictions. (i) Original Jurisdiction ; The Federal Court had an original jurisdiction in any dispute between the Federation and the provinces or any acceding State in respect of the following matters.1 (a) Interpretation of the Act or an order made in Council made under the Act. (b) Dispute arising out of an agreement relating to the administration of a State entered into Under Part VI of the Act (c) Disputes arising out of any other agreement between the Dominion and a State which expressly provides that such disputes shall be referred Federal Court for decision. In all such disputes, the Federal Court was required to render judgments declaratory in nature. The original jurisdiction of the Federal Court was confined only to the aforementioned disputes. Thus where the subject had a claim against the Federation, say on the allegation that a piece of Federal Legislation was ultra vires, the case was to go before the Local Court in the first instance and it could come before the Federal Court only by way of an appeal. However a provision was contained in Section 213 which provided that, if at any time it appeared to the Governor-General that a question of law has arisen or was likely to arise, which was of such a nature and of such public importance that it was expedient to obtain the opinion of the Federal Court upon it, he might in his discretion, refer the question to 1. Under Section 204.

9 that Court for consideration. Thus the validity of a law would be originally decided by the Federal court, on the grounds of Public importance etc., only in the exercise of its advisory jurisdiction and that too only when referred to it by the Governor-General. (ii) appellate jursdiction : Section 205 of the Act conferred appellate jursdiction of a very limited nature, namely, appeals against judgments of High Courts involving substantial Questions of law relating to interprelation of the Act, or order in Council on certificate by the High Court to the effect. Under this provision there was no appeal without certificate of the High Court. Therefore, if the High Court had refused to grant leave to appeal by refusing to issue a certificate, no appeal or revision could lie in the Federal Court from the order refusing to grant the appeal. Accordingly the High Courts had/wide powers to decide whether there arose a substantial question of law or to give or withhold a certificate about the appeal-wothiness of a decision rendered by it. The note-wothy legal position is that there was nothing in the statute which gave the Federal Court, the power to entertain an application for special leave to appeal.1 Section 207 made it possible to appeal from a High Court in a Federated State on similar grounds. (iii) Advisory jursdiction : Under the Act, the Governor- General had the power to refer any question of law, on which he thought it desirable to obtain the opinion of the Federal Court, to that Court.2 Such a reference could be made on that grounds that a question of law had arisen, or was likely to arise which was of such a nature Lakhpat Ram vs. Behari Lai Missir and others, (1939) 2 F.L.J. 121 : AIR 1939 FC Section 213.

10 and of such public importance that it was expedient to obtain the opinion of the Federal Court. The Federal Court was obliged to give its opinion publicly, and with the concurrence of a majority of the judges present at the hearing of a case. However, a judge who did not concur was free to deliver a dissenting opinion; 73 This in nutshell, was the entire game of jurisdictions exercised by the Federal Court of India. The most glaring aspect of the functioning of the Federal Court was that it was established basically for the purpose of upholding the federal principle. It had no role to protect the fundamental rights and freedoms, as there was no charter of fundamental rights under the Government of India Act, However it acted as the highest Court in the British India and it remained so till the commencement of the present constitution on 26th January It was the immediate predecessor of the Supreme Court of India which was established under Article 124 of the Constitution. By virtue of Article 374 of the Constitution, the judges of the Federal Court became the judges of the Supreme Court, and all the cases which were pending before the Federal Court, stood transferred to the Supreme Court of India. The pertinent point to note is that either the High Courts established in 1861 and onwards, or the Federal Court of India, had no scope of playing an activist role in any sphere. They were primarily meant for administration of Civil and Criminal justice by following the British principles of law and since the majority of judges were Britishers, they always protected the British Interest. In fact there was no State as it is perceived in the sense of political science, before the independence and there was no separation of powers between the three organs of the State. The Federal Court had a very limited jurisdiction.1 So far as the Appeals were concerned, they could go to the Judicial Committee of the Privy Council from any judgment rendered 1. M.P. Jain, Outlines of Indian Legal History, 5th Ed., (Bombay, 1990), p. 345.

11 74 by the Federal Court in the exercise of its original jursdiction and in any other case by leave of the Federal Court.1 The jurisdiction of the Privy Council was abolished by the Abolition of Privy Council Jurisdiction Act, Though, the span.of life of the Federal Court was only for 12 years and was very short, yet it did some useful work as regards the evolution Of federal Constitutional Jurisprudence in India. But the Federal Court occupies a significant place in the Indian Legal history, as the predecessor of the present Supreme Court of India. The present day Supreme Court of India is the culmination of the evolutionary process which started with the creation of the Federal Court of India in The most noteworthy factor that may be noticed with regard to the judiciary in British India is that during the period of British India, despite the presence of Indians in government, they had not been responsible for the laws that governed them. Indians had neither law nor courts of their own, and both the Courts and the law had been designed to meet the needs of the colonial power.3 However, from the British, Indian had inherited a well-constructed and smoothly functioning judicial system, many of whose forms and details could readily be adapted by the members of the constituent Assembly, while dealing with the judiciary Judiciary Under Indian Constitution and Supreme Court: The Constitution of India which was drafted by the Constituent Assembly and which came into force on 26th January, 1950 contains number of provisions that deal with the structure, function and powers of the judiciary. It introduced a unified judicial system in all the States and Union Territories. It virtually introduces a three tier judicial system viz. the Supreme Court of India, the highest court of the land, 1. Ibid., at p Came into force on 10th Oct., Granville Austin, The Indian Constitution : Corrnerstone of A Nation, (Oxford, 1966), p Ibid at p. 166.

12 75 the High Courts, the highest Courts in States and Union Territories and a subordinate judiciary in every State and Union Territory Consisting of many hierarchies. However the Constitution contains specific provisions relating only to the Supreme Court and High Courts and it leaves the subordinate judiciary to the States. The position of the Supreme Court under the Constitution came up for consideration before the constituent Assembly at a very early age. Almost simultaneously with the appointment of the Union Constitution Committee, a special Committee was set up to consider and report on the constitution and powers of the Supreme Court. This Committee consisted of S. Varadachari, Alladi Krishna Swami Ayyar, B.L. Mitter, K.M. Munshi and B.N. Rau. The Committee sent its report.1 on May 21; Its recommendations were mainly based on the provisions of the Act of As summarised by B. Shiva Rao,2 these recommendations were as follows. (i) The Supreme Court should be regarded as a necessary implication of any federal scheme. (ii) The Supreme Court should have a final and appellate jurisdiction on questions relating to the Constitutional Validity of the laws. (iii) The Supreme Court should be the best available forum, for the adjudication of all disputes between the union and a unit and between one unit and another and it must have exclusive original jursdiction in such disputes. (iv) The Supreme Court should have advisory jurisdiction. Accordingly, the framers of the constitution provided for a Supreme Court, the position of which can be discussed with reference to its 1 Select Documents II, 18 (i) pp B. Shiva Rao, The Framing of India s Constitution - A study, [New Delhi, 1968] pp. 480, 483.

13 powers as an Appellate Court, as a Federal Court and as a guardian of the Constitution. However, before discussing the organisation and powers of the judiciary in India with special reference to the Supreme Court, it would be pertinent to take note of essential features of the judicial function itself Judicial power and functions :--As eminent author on Constitutional Law Dr. D.D. Basu says, the primary characteristic of the judicial function is the decision of a dispute actually arising between two parties and brought before the court, which decision must be binding upon the partis and enforceable according to the decision.1 The American Supreme Court also seems to concur with this view, when it observed : Judicial power is the power of court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.2 The above two definitions given by an adversorial judicial system are followed in Britain, United States and elsewhere. The (British) Committee on Ministerial Powers3 described the judicial function as under : A true judicial decision presupposes an existing dispute between two or more parties and involves four requisites i (i) The presentation (not necessarily orally) of their case by the parties to the dispute, (2) If the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence, (3) If the dispute between them is question of law, the submission of legal argument by the parties ; and 1. Basu s Commentary on the Constitution of India, vol. G, 6th Ed., (Calcutta, 1983) p Muskrat vs. United States, (1911) 219 U.S. 346 (356). 3. The Report of the Committee on Ministers powers, 1932 cmd 73.

14 (4) A decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law to the facts so found including where required ; a ruling upon any disputed question of law. 77 The above analysis of the Committee on Ministers powers had obtained judicial recognition in England in famous cases of Cooper us. Wilson1 and From United Brewaries us. Bath Justices.2 One of the important issues which has to be considered in this context is whether there is indeed a particular set of powers which is best handled by the judiciary and which distinguishes it from other branches of the Government. If the judiciary joerforms a task which is essentially similar to that of other branches of government, then approaches to its composition and the control of its use of power will be different from those where a distinguishing feature can be found. A British Scholar has attempted to elaborate three models of the place of judiciary in a democracy which provide different answers to the question of whether the political function of the judiciary is essentially the same as that of other branches of government.3 According to the learned scholar, the basic functions of the judiciary can be divided into three models viz. (i) the consensus model (ii) Interstitial Legislator model and (iii) the Rights model. John Bell analyses the three models of the judicial function as under (i) The consensus model : This model argues that the basis for the distinction between the political creativity or activity of the judiciary and that of the other organs of the government, lies in the kinds of values and issues which are appropriate for judicial decision making. Whereas the resolution of controversial issues in society 1. (1937) 2 K.B (1926) A.C. 586 (602). 3. John Bell, Three Models of the Judicial Function, in Judges and the Judicial power Ed. Rajeev Dhavan, R. Sudarshan & Salman Hyder, (London : Bombay, 1985) at p. 55.

15 78 is best left to parliament, the judges are limited to deciding basically non-controversial issues by the application of values over which there is a substantial degree of consensus in society. (ii) The Interstitial Legislator Model: This model suggests that there is no basic difference between the kinds of values choices made by the judiciary and those of the other branches of government. Those limitations which do exist on judicial power concern merely the scope of activity of courts. Accordingly, the political legitimation of judicial power in a democracy has to be treated on a similar footing to that of their governmental institutions. (iii) The Rights Model : This model as propounded by Professor R. Dworkin1 argues that there is a qualitative difference between the judicial and legislative functions in government, which is to be found in a distinction between questions of rights and those about the collective welfare. It may be seen that the judiciary under modern constitutional democracies especially in common law countries is playing the role as suggested by all the above models. It is not disputed, that the judicial function properly belongs only to the courts which exercise the inherent power of adjudication Idea of the Framers of the Constitution & Historical perspectives : In order to understand the role of the judiciary under the present Constitution it will be necessary to discuss the historical perspectives in relation particularly to the Supreme Court. The position of the Supreme Court under the Constitution came up for consideration before the Constituent Assembly at a very early age.2 As already pointed out elsewhere almost simultaneously with the 1. Dworkin, Liberalism in Hampshire (ed.), Public & Private Moralty (1978), Ch. 6, P. III. 2. The Framing of India s Constitution - A study Ed. B. S. Rao (IIPA, New Delhi, 1968) p. 483.

16 79 appointment of the union Constitution Committee, a special committee was set-up to consider and report on the Constitution and powers of the Supreme Court consisting of S. Varadachariar, Alladi Krishnaswami Ayyar, B.L. Mitter, K.M. Munshi and B.N. Ran. The Committee sent its recommendations highlighting the upholding of federal principle and suggesting the various jurisdictions it should exercise.1 Its recommendations were mainly based on the provisions of the Government of India Act, The First important reference to a Supreme Court for India appears in the Nehru Report, as it envisaged, a federal constitution for an independent nation and it proposed several important additions to the existing judicial system. The Nehru Report submitted in August 1928 contained 87 clauses on various issues of the constitution like citizenship, Fundamental Rights, Parliament, Common Wealth executive, Financial control and the judiciary. Clauses 46 to 51 dealt with the judiciary.2 Clause 49 of the Report read : The Supreme Court shall have original jurisdiction in all matters (i) refered to the Supreme Court by the Governor General in Council under Section 85 (pertaining to Indian States) ; (ii) in which the Common Wealth or person suing or being sued on behalf of the Common Wealth, is a party, (iii) affecting consuls or other representatives of other countries, (iv) between provinces (v) arising under the constitution or involving its interpretation. It can be seen that the power of judicial review was proposed to be vested in the Supreme Court, as the sub-clause (v) of clause 49 envisaged the same. 1. The Committee sent its report on May, The text can be found on p. 193 of the select Documents, the Framing of India s Constitution, Ed. B. Shiva Rao, Vol. IV. 2. The Report and the recommendations on the judiciary particularly the Supreme Court can be found in pages 66 and 67 of the Select Documents, Vol. I, B. Shiva Rao, Framing of tire India s Constitution (New Delhi, 1966).

17 The Sapru Committee Report also recommended that, under the New Constitution the position of the Federal Court would have to be greatly strengthened and that it would need to have wider, jursdiction and must be the interpreter and guardian of the Constitution. The Report further emphasized that, the expanded jurisdiction should include a special responsibility for difficult cases, concerning the Civil rights and liberties of people.1 80 In so far as the constituent Assembly Debates2 are concerned, it can be safely said that most of the discussion pertaining to the Supreme Court revolved around the organisation of the Court, the Salaries and other service conditions of the judges and the independence of the judiciary. However the ideas of the framers of the Constitution vis-avis the Supreme Court as the guardian of the fundamental rights of the citizens as well as the constitution itself can be found in the discussion pertaining to Article 32.3 Article and While referring to the right to constitutional remedies as guaranteed under Article 32 of the present constitution, M. Anantasayanam Ayyangar pointed out that the Supreme Court is the Supreme guardian of the citizens rights in any democracy.5 He went on to emphasize that the Supreme Court is the soul of democracy. The executive which comes into being for the time being is apt to abuse its powers, and therefore the Supreme Court must be there, strong and untrammelled by the day to day passions which may bring a set of people into power and throw them out also in a very short time. In less than three or four years during which a parliament is in being, many governments may come and go, and if the fundamenntal rights of the individual are left to the tender mercies of the Government of the day, they can not be called the fundamental rights at all. 1. Constitutional Proposal of the Sapru Committee (Dec, 1945), Ibid at pp Hereinafter referred to as CAD. 3. Article 25 of the Draft Constitution. 4. Article 103 in the Draft Constitution and elsewhere. 5. CAD, Book-2, Vol. VII, at p. 940

18 The learned member went on to add that, on the otherhand, the judges appointed to the Supreme Court can be depended upon, to be the guardians of the rights and privileges of the citizens, the majority and the minority alike.' Pie further pointed out that, in so far as the fundamental rights are concerned, there is no difference between the rights and privileges of individual citizens, whether they belong to the majority or the minority community. Both must be allowed to exercise freedom of religion, freedom of conscience and must be allowed to exercise their language and use the script which naturally belongs to them. These and other rights must be carefully watched and for this purpose the Supreme Court has been vested with the Supreme ultimate jurisdiction. 81 Another illustrious member of the constituent Assembly, Prof. N.G. Ranga while arguing on the same article stressed that, if ever any group or individual were to establish totalitarianism in this country, especially to establish a totalitarian State, then it will be the sacred duty of the Supreme Court as that of the president of the Republic of this country to see that this Constitution is maintained at all costs and that these fundamental rights are not allowed to be exercised by these people or groups in such a way to jeopardise this society.1 2 The Chairman of the Drafting Committee Dr. Ambedkar, while highlighting the importance of the present Article 32 of the Constitution pointed out that if he were to be asked to name any particular Article in this constitution as the most important, an article without which this constitution would be a nullity, he could not refer to any other article except this one. He went on to say that Article 32 is the very soul of the Constitution and the very heart of it.3 Thus it could be seen that the framers of the constitution envisaged a Supreme Court as the ultimate guardian of the fundamental rights of the citizens and as the final interpreter of the constitution. 1. Ibid. 2. Ibid; at p Ibid, at p. 953.

19 The first reaction to the judicial provisions of the Draft Constitution1 came from the judges themselves. In late December, 1947, the Chief Justice of the Federal Court, H.J. Kania wrote a letter to Nehru about them.2 Though Kania made no comment on the jurisdiction and powers of the Courts, confining his letter entirely to the independence of the judiciary, he expressed his apprehension about the executive control over judiciary. Kania particularly stressed that, when recommending to the president, a person for a judgeship on a High Court, the Governor and the High Court Chief justice should be in direct contact so that the provincial Home Ministry would not be an intermediary in the proceedings. 82 These points and many others were elaborated at a meeting held by the justices of the Federal Court and the Chief Justices of all the High Courts, a month after the publication of the Draft Constitution.3 The meeting noted that, under the Raj, the judiciary had been by and large independent but that certain tendencies to encroach upon its independence were becoming apparent. The justices opined that India must preserve The fearless functioning of. an independent, incorruptible and efficient judiciary.4 However, the Constituent Assembly assured the apprehensive judicial officers subsequently that there was no authority that could interfere with it, in the exercise of its functions. The members of the Constituent Assembly seem to have had at least three perceptions about the kind of Supreme Court they wanted to create for independent India. First, that the Supreme Court should protect the fundamental rights guaranteed by the Constitution. Second, that the court should exercise general appellate jurisdiction 1. Article 25 (Present Art. 32), Article 103 (Present Art. 124), 104 (125), 109 (131); 117 (141), 148 (142) and 119 (143) etc. 2. Granville Austin, The Indian Constitution : comer stone of a Nation, (Oxford, 1966) p The meeting was held on March 1948 in New Delhi. 4. Law Ministry Articles, File CA/21Cons/48.

20 over all the courts in the country. And third, that it should have original jurisdiction in all federal disputes. Each one of these notions were culminations of historical processes. The Constituent Assembly, thus after having entrusted the task of enforcing fundamental rights to the Supreme Court, went on putting fetters on its power. The power of judicial review was not explicitly stated but was to be derived from the various restrictions imposed on the extent to which fundamental rights could be enforced. It was a foregone conclusion that the proposed Supreme Court would be strictly modelled after the Federal Court of India. While one can say that the Constitution makers carefully pruned the power of the court in order to make sure that it does not overstep its boundaries and assume to itself legislative or executive functions, there is little evidence to suggest that they ever seriously considered the institutional viability of the future apex court in view of the vast appellate jurisdiction that they had so generously conferred on it.1 Believing that they had established a judiciary both independent and powerful judiciary, the Assembly members then wished to give their work some permanance. They wanted to protect the sanctity of the Courts and hence included among the entrenched provisions of the Constitution, all the articles dealing with the Union Judiciary, the High Courts in the State and the Legislative lists pertaining to it under the Article 368 of the Constitution. The result is that although much of the constitution can be changed by the Parliament itself, the entrenched provisions2 cannot be amended unilaterally by the Parliament unless the approval of not less than one-half of the legislatures of the States is obtained. Ambedkar was perhaps the greatest apostle in the Constituent Assembly of what he described as one single integrated judiciary having jurisdiction and providing Vijay K. Gupta "Concept and Organisation of the Supreme Court of India A study in Retrospect, Indian Bar Review, Vol. 14 (2) 1987 p Chapter IV of Part V dealing with the Supreme Court, Ch. V of Part VI dealing with the High Courts, and the Entries pertaining to the 3 lists in schedule VII.

21 remedies in all cases arising under the Constitutional Law, the Civil Law, or the Criminal Law. For him, such a judicial system, plus unformity of law, were essential to maintian the unity of the country'.1 The strongest and clearest opinion of the framers of the constitution can be gauged from the statement of T.T. Krishnama Chari. While participating in discussion on Draft Article 1042 which deals with the salary and service conditions of the judges of the higher judiciary, T.T. Krishnama Chari emphatically stated that the Constituent Assembly did not intend to create specially favoured bodies which in themselves become an imperium in imperio, completely independent of the Executive and Legislature and operating as a sort of body politic.3 Perhaps, the honourable members of the Constituent Assembly were aware of the American experience, where Courts in that country used the due process clause of the U.S. Constitution to nullify the legislations as void in substantive matters. In other words, the framers never intended to allow the subjective view of the judges to prevail over the legislative will. Jawaharlal Nehru stressed on the limits of judicial power of India by declaring that within limits, no judge and no Supreme Court can make itself a third chamber and that no Supreme Court and judiciary can stand in judgment representing the will of Parliament representing the will of entire community.4 From the above discussion, it becomes clear that the framers of the Indian Constitution envisaged a higher judicairy, independent, impartial and powerful to check the arbitrary exercise of State power which might violate the fundamental rights of the citizens. It was expected that, the Supreme Court should play the role of the final arbiter in the adjudication of federal issues. The Constitutional fathers wanted the Supreme Court to protect the sanctity of the Constitution, to be its ultimate interpreter and to be the final guardian of the CAD Vol. VII, I, P Present Art CAD Vol. VIII Book 3, p CAD Vol. VII pp

22 85 unalienable rights of the citizens of India. They expected the system to be an adversorial rather than an inquisitorial system. If at all any shift cam be witnessed in the system in the present days, it is not because the framers of the constitution expected it but due to various other factors which include the path of judicial activism embarked by the judiciary especially the Supreme Court, particularly from the early 1980 s in a consistent manner Position of the Supreme Court under the Constitution: Under the Constitution of India which came into force in 1950, the Supreme Court has been endowed with vast powers which are essential to the constitutionalism. The Indian Constitution being a written constitution imbibing in itself the federal characteristics, guarantees supremacy of the constitution. The responsibility of protecting such supremacy of the constitution which is the supreme lex of the land, rests with the judiciary. Infact this is the precise duty cast upon the judiciary under the Indian Constitution by the fathers of the Constitution, though we have adopted the parliamentary system of government from the British Constitution, as regards the position of the judiciary is concerned, we have adopted the judicial system similar to the one prevailing under the U.S. Constitution. Unlike in the U.K., the judiciary has been given a prominent place in the Constitution of India. As Granville Austin rightly points out, during the British period, despite the presence of Indians in government, Indians had not been responsible for the laws that governed them. Indians had neither law nor courts of their own, and both the Courts and the law had been designed to meet the needs of the colonial power. Therefore, the courts under the constitution were widely considered as one of the most tangible evidences of independence.1 Though, from the British, India had inherited a well-constructed and smoothly functioning judicial system, many of whose forms and details could readily be adapted by the members, yet the drafting of the judicial provisions was not a matter of copying. 1. Austin, Granville : The Indian Constitution : Cornerstone of A Nation (Oxford, 1966) p.

23 86 At the time of framing the constitution, the Members of the Constituent Assembly had to ask themselves which of the provisions should be retained, and, if retained, how they should be modified and how the jurisdiction and powers of the courts should be widened to meet the needs of an independent State. As regards the establishment of the Supreme Court was concerned, an ad hoc Committee of five members - B.N. Rau, Munshi, Ayyar, B.L. Mitter and S. Varadachariar undertook the work. The first recommendation of their report bestowed the power of judicial review upon the court. The report suggested that a Supreme Court with jurisdiction to decide upon the constitutional validity of acts and laws can be regarded as a necessary implication of any federal scheme.1 The importance of giving the Supreme Court the power of judicial review was pointed out by Sir, Alladi Krishnaswami Ayyar and Munshi in separate memoranda while Munshi believed that this power was essentially necessary for safeguarding of fundamental rights and for ensuring the observance of due process, hoping that judicial review would have a more direct basis in the constitution than simply due process, Ayyar pointed out that judicial review in the United States, although favoured by Hamilton and others, had been inferred from the constitution and that the judicial review ought to be explicitly named as one of the court's powers : The reason, why the American system of judiciary was preferred to the one prevailing in the U.K., appears to be the fact that the constitution has contemplated a federal system of government under the constitution and a weak if not insignificant judiciary like the one prevailing in the U.K. from which we have inherited the Westminster model could not have upheld the federal principle. Further the U.K. has no chapter on fundamental rights whereas India like the U.S.A. has guaranteed in a separate part of the constitution certain inalienable and inherent fundamental rights Thus the judiciary in India can be 1. Report of the Ad hoc Committee of the Supreme Court, para 3, as quoted supra p. 170.

24 effective only if it is on the lines of its counterpart in the U.S.A. which has the power of judicial review though inferred. Since we have set up a federal state under the Constitution, obviously the judiciary should protect the supremacy of the Constitution besides upholding, the federal principle. Therefore a judiciary without the power of judicial review could not have accomplished these tasks by limiting the powers of the Government. Thus it was in the fitness of the things that the framers of the Constitution have wisely opted for a stronger judiciary in preference to the system prevailing in the U.K. 87 The position of the Supreme Court of India can be discussed with reference to its powers as an Appellate Court, as a Federal Court and as a guardian of the Constitution. (i) As a Federal Court : It is acknowledged by everyone that a Federal Court is an essential element in a Federal Constitution. It is at once the final interpreter and guardian of the Constitution and a tribunal for the determination of disputes between the constituent units of the Federation. It is universally agreed that every Federal Constitution, whatever the degree of cohesion it aims at establishing, involves a distribution of powers between the Union and the units comprising the union, and both the Union and State Governments. In a Unitary Constitution, there is no such problem to solve, for there, the local administrative or legislative bodies are mere subordinate bodies under the central authority. Hence there is no problem of judicially determining disputes between the central and local authorities.1 But in a Federal Constitution, having a written constitution, the powers are divided between the National and State Governments, and it becomes necessary that there must be some authority to determine 1. Basu, Durga Das, Commentary on the Constitution of India, 6th Ed., Vol G. (Calcutta, 1983) p. 205.

25 disputes between the Union and the States or the States inter se and to maintain the distribution of powers as made by the Constitution. Hence in a federal Constitution, the judiciary has an additional problem, apart from guarding the Constitution against transgression by the organs of the national government, namely to maintain the distribution of powers prescribed by the constitution as against encroachments by the Union and the State Governments inter se. It is, in short, the umpire in the federal system.1 88 Though, the Indian Federation is not in the nature of a treaty or compact between the component units, there is nevertheless, a division of legislative as well as administrative powers between the Union and the States. It shall not be out of place in this context to mention that the VII Schedule to the Constitution contains three legislative lists namely the Union, the State and the concurrent lists, clearly demarcating the legislative domain of the union and State legislatures. Similarly Articles... of the Constitution laydown the respective jurisdictions of the Union and State Administrations for the purpose of exercising administrative powers. Articles...deal with the financial relations between the Union and the State Governments. Apart from the above there may be many a dispute regarding the boundaries', utilisation of waters, power and other natural resources. Thus there is every possibility of one dispute or the other vis-a-vis any or all of the above areas. Article 131 of the Constitution, therefore vests the Supreme Court with original and exclusive jurisdiction to determine disputes between the Union and the States and the States inter se. It is very pertinent in this context to see that the Indian Supreme Court s jurisdiction in this regard varies from that of the Australian High Court2 and that of 1. Burton, Unsung Service of the Supreme Court, (1955) 24 Ford L. Rev. 169 (170). 2. Under Section 75 of the Australian Constitution, 100 vests original jurisdiction in the High Court to decide disputes between residents of different states or between a State and a resident of another State.

26 the Federal Supreme Court of the United States.1 2Article 131 of the Constitution reads as under : Original jurisdiction of the Supreme Court Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusionof any other court, have original jurisdiction in any dispute (a) (b) (c) between the Government of India and one or more States; or between the Government of India and any State or States on one side and one or more other States on the other; or between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extend of a legal right depends : 2[Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extent to such a dispute]. It is the interpretation of the Supreme Court in particular cases that will hold the centripetal and centrifugal forces in the balance and save the original distribution of powers from any aggressive encroachment on the part of the Union. It is very apt to quote Sir Alladi Krishna Swamy Ayyar3 who observed. 1. Where the theories of State rights, Immunity of Instrumentalities, dual government, divided Sovereignty etc. are prevalent. 2. Subs, by the Constitution (Seventh Amendment) Act, 1956, Section 5, for the proviso. 3. AIR 1949 Jour. 35.

27 ...(the Supreme Court) has to keep the poise 90 between the seemingly contradictory forces. In the process of the interpretation of the constitution, on certain occassions it may appear to strengthen the Union at the expense of the Units at another time it may appear to champion the cause of provincial autonomy and regionalism. Thus it is obvious that the Supreme Court is expected to maintain a fine balance between the power of the Union and the rights of the States, while exercising its power under Article 131 of the Constitution. (ii) As a Court of Appeal: (i) Generally, the Supreme Court of India is the final appellate tribunal of the land and most of the judicial functions performed by the Supreme Court are as an appellate court. The Supreme Court exercises its appellate jurisdiction in civil, criminal and constitutional matters. Articles 132 to 136 of the constitution deal with the appellate jursdiction of the Supreme Court. According to Art. 132 of the constitution, an appeal lies to the Supreme Court from any judgment, decree or final order of any High Court, in the territory of India in any civil, criminal or other proceedings, provided it involves a substantial question of law as to the interpretation of the Constitution, and the High Court certifies to that effect. Thus Article 132 ensures that, though a High Court may pronounce upon the validity of an Act or decide any other question involving the interpretation of the constitution, in all such cases the decision of the High Court shall not be final and that the final authority of interpreting the Constitution must rest with the Supreme Court.1 (ii) In Civil Matters : Under Article 133 of the Constitution, the S.C., exercises appellate jurisdiction in civil matters decided by the High Courts. According to this article, 1. Election Commission vs. Venkat Rao, (1953) SCR 1144 (1149).