Rightfully Ours: The Supreme Court as an Institution

Institutions, and they alone, are the stuff prosperous nations are made of. To govern a people in the modern age entails creating institutions with a definite object—that is, a reasoning as to why they exist and, more importantly, that they should continue to exist. As such, one of the definitions of institution preferred by the Oxford Dictionary is: ‘a large, important organisation that has a particular purpose’.

In my humble view, definitions have their constraints in that they are condensed from a mass of competing or complementary ideas. Therefore, something as salutary as the term "institution" requires a deeper understanding insofar as it has a bearing on India, a constitutional democracy, and further, its Supreme Court.

Much of our legal system today is a perpetuation of the colonial legacy. Modes of dispensing justice existed prior to the arrival of the British, albeit they were comparatively informal and enforced customary laws that arose out of long-held traditions such as the Shastras or the Shariat. Therefore, as early as 1793, Governor-Generals began to implant a judicial system imported from the English common law system. This process culminated in the backdrop of the mutiny in 1858, which led the Crown to take over charge from the East India Company, in the enactment of the Indian High Courts Act, 1861. The British Parliament, through this Act, established High Courts of Judicature at the Presidency towns of Bombay, Calcutta and Madras.

It is from this point onwards that we find the first ever formal High Courts of British India having territorial jurisdiction over their respective Presidencies. Appeals from such High Courts lay to the Judicial Committee of the Privy Council in Britain and later, from 1935, to the Federal Court seated in Delhi. For further context, on the legislative side, the British had codified a series of civil and criminal laws (see 1st Law Commission of India, 1834), most of which still apply today, and were simultaneously developed and enforced by the courts. Indians, henceforth, were subject to man-made laws, which were further subject to judicial interpretation by the courts.

Rhetoric aside, this system, so to speak, by and large, prevails even today—except that nomenclature may have changed to some extent. And as some would have it—an ‘institution’ perhaps literally was in place and running long before independence was on the horizon. However, does this observation inspire any merit? Inasmuch as I’d agree that the present judicial setup, born out of the yoke of colonialism, lingers even today—is it worth admitting that an institution, bona fide, predated our republic, or is there more to becoming, truly, an institution? In other words, what has changed, although much has remained?

First, we must rid ourselves of the notion that the playbook of governance was, in fact, inherited from the British. They may have, at best, administered us in furtherance of their political and economic interest. As such, it was the Secretary of State, aided by the India Council, who really called the shots from London, and the Secretary of State, being a cabinet member, was answerable to the British Parliament alone.

This was true even when appointing Chief Justices and puisne judges of the Presidency High Courts, as most of them who were appointed were either favourites of the Secretary of State or were loyal to the cause of the empire. Moreover, no Indian judge could ever become the Chief Justice in British India. As for the so-called Imperial Legislative Council in India, there was no policy, legislation, or decision of the council that the Governor-General, and above him the Secretary of State, could not override—thus leaving the council with little to no relevance at all. Indians were increasingly made subject to the tyranny of the executive.

With this experience in mind, our founding fathers gave us the Constitution of India.

The Constitution borrows a lot from the Government of India Act, 1935 and has a stark similarity to it. But again, what is different? In essence, they are the inviolable basic human rights—the fundamental rights. For the first time in our history, from the minutest executive order to the most popular legislation of Parliament—all had to meet the test of the Constitution. The newly founded Indian state was limited by the boundaries of the Constitution and most importantly, it could not commit excesses or impinge upon the inalienable rights of persons guaranteed under the Constitution.

However, what good are the rights if they cannot be enforced and further, if they cannot be interpreted as per the evolving needs of society? As an institution, the Supreme Court, inter alia, has precisely this role to play.

Within two years of its existence, the Supreme Court, in State of Madras vs. VG Row (AIR 1952 SC 196), figuratively characterized this role of the courts as that of a sentinel on the qui vive (meaning “on the alert” or “vigilant”), thereby asserting itself as the guardian of the fundamental rights.

Subsequently, a little over two decades later, the heights of judicial ingenuity led the Supreme Court to lay down the basic structure doctrine in the Kesavananda Bharati case. By virtue of this doctrine, it was made clear to Parliament that it could not tinker with the basic features of the Constitution, such as fundamental rights, separation of powers, rule of law, federalism, secularism, etc.

This meant that Parliament did not possess unlimited power to amend the Constitution wholesale and that amendments could not be beyond the pale of judicial review. In the words of a presiding judge, Justice Mukherjea:

“Our Constitution is not a mere political document. It is essentially a social document. It is based on a social philosophy and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former remains constant, but the latter is subject to change… In other words, one cannot legally use the Constitution to destroy itself. Under article 368, the amended constitution must remain the constitution, which means the original Constitution.”

Dieter Conrad, in a famous lecture given at Banaras Hindu University in 1965, referred to Germany’s Weimar Constitution and how Hitler had destroyed that constitution after coming into power by using emergency powers granted by the constitution itself.

Given that an emergency was imposed soon after the Kesavananda case in 1975, to salvage democracy would have been untenable but for the basic structure doctrine, which saved the day (see 39th Constitutional Amendment and Minerva Mills case). In view of this doctrine, we owe a lot to the Supreme Court in that it saved us from disintegrating into a failed nation-state with a failed constitution, as is the case with many of our neighbouring countries.

Indeed, Prof Upendra Baxi rightly referred to the doctrine as “the Indian Constitution of the future” at that time.

Judicial creativity and propriety has been further exemplified by the Supreme Court in terms of interpreting the nature and extent of the fundamental rights, especially in relation to the right to life and liberty, i.e., Article 21.

Although in its initial years, the Supreme Court held a conservative view towards personal liberty by narrowing it down to the bare text of the Article, it was not until the Maneka Gandhi case in 1978 that the Supreme Court redeemed itself and held that principles of natural justice are integral to the development of fundamental rights and that the rights are meant “for the creative development of the human spirit.”

Based on such precedents, the Supreme Court has read into Article 21 vis-à-vis personal liberty and many other concomitant rights which are essential to lead a dignified life. Some of them include:

• the right to privacy,

• right to shelter,

• right to livelihood,

• right to a clean environment,

• right to health and medical aid,

• right against handcuffing, and

• protection of cultural heritage.

Moreover, we mustn't forget how public interest litigation (PIL) as a means to knock on the doors of the Court was judicially innovated by the Supreme Court in the early 1980s. At that time, it was seen as a step towards access to justice for marginalised groups whose fundamental rights were either being abused or infringed.

Daron Acemoglu, a Nobel laureate economist, has studied and written about institutions being a driver of prosperity and strength for a nation. He has evidenced that fact by comparing inclusive and extractive institutions.

Inclusive institutions are characterised by broad participation in economic and political life. They protect rights, uphold the rule of law, and provide a level playing field that encourages competition, innovation, and investment.

In contrast, extractive institutions concentrate power and wealth in the hands of a narrow elite who use political and economic systems to enrich themselves at the expense of the broader population. These institutions stifle innovation, discourage investment, and perpetuate inequality by limiting access to economic opportunities and political participation.

The research demonstrates that the interplay between political and economic institutions determines whether a country develops inclusively or remains trapped in extractive systems, explaining why some nations prosper while others fail.

Perhaps the aforesaid dichotomy will assist the reader in appreciating the remarkable role the Supreme Court has played over the course of its history. Despite there having been times when the Supreme Court chose to look the other way, the Court’s ability and tenacity to correct itself over time have drawn the citizenry even closer to it, as its performance has, time and again, garnered tremendous public faith.

Hence, truly becoming an institution requires all of that and much more—as opposed to simply being ‘a large organisation with a particular purpose’.

All that being said, we shall always come back to the old and timeless adage, that is: Truth alone prevails – Satyamev Jayate.