THE INDIAN SUPREME COURT FIRST BEGAN functioning on January 28, 1950, at Parliament House, New Delhi, before shifting to its present building at Tilak Marg in 1958. The first Attorney General of India, M.C. Setalvad, in his address marking the court’s inauguration, observed that its jurisdiction and powers were wider than those exercised by the highest court of any country in the Commonwealth or by the Supreme Court of the United States. To Setalvad, its foremost task was to interpret the Constitution, which he said was a means of ordering the life of a progressive people. Citing the Federal Court, the precursor of the Supreme Court, he said that the Constitution was to be interpreted in no narrow spirit.

The Constitution envisaged the establishment of an independent judiciary with the Supreme Court at the apex. The Supreme Court is invested with the powers to issue writs to enforce the fundamental rights under Article 32 of the Constitution, described by B.R. Ambedkar as its soul. The court is also invested with the power to entertain appeals from High Courts and tribunals. All Supreme Court orders become enforceable throughout the territory of India, and all authorities, civil or judicial, are to act in its aid. While High Courts have powers of superintendence over their subordinate courts, the Supreme Court is not invested with any power of superintendence over High Courts. However, the Supreme Court has assumed to itself a virtual power of superintendence over High Courts, and they, in the words of the former Supreme Court judge Justice O. Chinnappa Reddy, seem to have accepted such a position with obeisance. “The stature of the High Courts has automatically reduced in the eyes of the public, which it should never be,” Justice Reddy says in his memoirs, The Court and the Constitution of India: Summits and Shallows.

Sir H.J. Kania, who became a Federal Court judge on June 20, 1946, became the first Indian Chief Justice of India (CJI) on August 14, 1947, by virtue of seniority following the resignation of the last British Chief Justice, Sir William Patrick Spens. Apart from the CJI, at that time there was just one more judge, Sir S. Fazl Ali.

Kania became the first CJI under the 1950 Constitution, and the five other Federal Court judges became judges of Supreme Court of India. Kania died in November 1951 with four years still to go before he would have completed his tenure at the age of 65. The sanctioned strength of the court at that time was eight, including the CJI. Two more judges, N. Chandrasekhara Aiyar and Vivian Bose, joined the court, in 1950 and 1951 respectively, to bring it to its full strength. The Supreme Court’s sanctioned strength has increased periodically since then and it is now 31, including the CJI. Kania had conceded that the Supreme Court was secondary to Parliament as the custodian of the Constitution and that the court was not an authority to supervise the wisdom and the propriety of the enactments of the legislature and the actions of the executive. His thinking influenced the way the Supreme Court decided cases in its early days.

Thus, in A.K. Gopalan vs State of Madras, a case decided in 1950, the court failed to rise to the occasion. Gopalan, a veteran communist leader from Kerala, was detained without trial under the Preventive Detention Act. He argued that provisions of Article 19 of the Constitution guaranteeing various personal freedoms should be read into Article 21 (the right to life and liberty) and Article 22, which enables the state to make laws providing for preventive detention. The Supreme Court held that the rights conferred by Article 19 were the rights of free men and both punitive and preventive detention were outside its range. This meant that a detenu could not claim procedural fairness as a fundamental right. The majority judges in this case were still under the influence of colonial jurisprudence and were oblivious to the fact that they were to expound the jurisprudence of a new Constitution for people who had just freed themselves from colonial rule. Thus, they held that the law prescribing preventive detention was not required to satisfy the requirements of reasonableness. Justice Fazl Ali dissented and said that the fundamental rights overlapped each other and that preventive detention under Article 22 also amounted to deprivation of personal liberty and of the right to the freedom of movement, dealt with in Article 19(1)(d).

In 1970, the minority view of Justice Fazl Ali was accepted by the majority of the 11-judge bench (10:1) in R.C. Cooper vs Union of India. In this case, the court rejected the argument that Article 31(2) (right to property) was a complete code in itself and not subject to any reasonable restrictions as contemplated by Article 19. Thus, the court quashed the nationalisation of banks on the ground that the compensation paid was unreasonable. In several subsequent cases, the Supreme Court held that even if only one of the several grounds of detention was bad for vagueness or another reason, the order of detention would be quashed. However, in 1976, during the Emergency, the Supreme Court reversed this great jurisprudence in the case A.D.M. Jabalpur vs Shivakant Shukla. The court held that life and liberty of a citizen were mere bounties of the state and could be withdrawn whenever it wanted. Justice H.R. Khanna dissented from the majority judges in this case and held that right to life and liberty existed before the Constitution and, therefore, could not be taken away by the state under any circumstances. The ruling in A.D.M. Jabalpur is no longer good law as subsequent legislation passed by the post-Emergency Parliament, in defence of the fundamental rights, reversed the “damage” the court caused.

Public interest litigation



In subsequent years, the Supreme Court itself began to make amends for its role during the Emergency. It encouraged epistolary jurisdiction, through which it converted ordinary letters written by people bringing issues of public importance to its notice to public interest litigation (PIL) petitions. Through this, the court dispensed with the need for locus standi and allowed petitioners who themselves might not have suffered any injury to represent others who were not in a position to approach the court for some reasons.

Among the judges who made effective use of PIL in the post-Emergency period were Justices P.N. Bhagwati, V.R. Krishna Iyer, Chinnappa Reddy and D.A. Desai. Justice Bhagwati’s creative and expansive interpretation of Article 21 gave people many new unenumerated rights. Justice Bhagwati, who passed away on June 15, was also at the centre of a controversy when he wrote an adulatory letter to Prime Minister Indira Gandhi after her return to power in 1980. Justice Krishna Iyer ruled that Indira Gandhi when she was disqualified for violating election law lost her status as a Member of Parliament but could retain her position as Prime Minister. His decision was one of the factors that led to the imposition of the Emergency. His experience as a prisoner, a legislator and a Minister in Kerala, before becoming a judge in the Supreme Court, made him champion the rights of the oppressed and the underprivileged, both as a judge and after his retirement.

However, in a recent scholarly work, Anuj Bhuwania has raised the concern that because a PIL petition does away with procedural requirements it could well be defeating its own objectives. As an example, he cites the 1989 Bhopal gas disaster claims settlement, which he says was judicial bad faith passing for panchayati justice. He recalls that the survivors of the gas leak tragedy were not even consulted before the court pronounced on their fate. They were considered “irresponsible and uninformed” and therefore given a fait accompli, he says. PIL has become a giant machine to turn people who could be plaintiffs into victims, he further says in his recent book, Courting the People: Public Interest Litigation in Post-Emergency India. The book abounds with examples of PIL petitions that have gone wrong and resulted in further deprivation of the poor and the marginalised in the neoliberal era.

Freedom of expression



The Supreme Court has built up a robust jurisprudence in favour of freedom of expression, right from Romesh Thappar vs State of Madras, in 1950, when it struck down the notification the then Madras Government issued banning the entry into the State or the circulation, sale and distribution of CrossRoads, a journal published from Bombay, as offending the freedom of speech and expression guaranteed by the Constitution. In 1951, in State of Madras vs Champakam Dorairajan, the court struck down the community-wise distribution of admission to medical colleges as violative of Article 15, which guarantees non-discrimination on grounds of religion, race, caste, sex, place of birth or any of them. These two cases led to the First Amendment of the Constitution by the Provisional Parliament, which undid the judgments of the Supreme Court. Thus, reasonable restrictions on the fundamental rights were inserted under Article 19(2), and the state was enabled to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

During this period, the Supreme Court’s decisions seemed to uphold the challenges posed by the propertied class to the progressive legislation of the government. Yet, there was a general consensus in favour of Parliament’s right to determine policy in the economic realm. While the Supreme Court struck down egalitarian laws on the ground that they militated against the fundamental rights, there was a consensus that Parliament could amend the relevant provisions in a manner to render those laws constitutional. Thus, restrictions were added to each of the fundamental rights to allow for laws that aimed to fulfil the Directive Principles of State Policy.

This was followed by a period of confrontation between Parliament and the Supreme Court. In I.C. Golaknath and Others vs State of Punjab & Anrs (1968), the Supreme Court restricted Parliament’s power to amend the Constitution saying that the fundamental rights in Part III are unamendable. Then came the Supreme Court’s quashing of the Bank Nationalisation Act, 1969, in R.C.Cooper and the abolishment of the privy purses.

In 1973, the Supreme Court’s 13-judge Constitution Bench delivered the judgment in the Keshavananda Bharati case, enunciating the basic structure doctrine, by which certain basic features of the Constitution were declared unamendable by Parliament. In subsequent cases, the court held that the scope of giving effect to the goals set by Articles 39(b) and (c) to fulfil the Directive Principles of State Policy could not be restricted by the fundamental rights. The court reasoned that the Directive Principles must be read in harmony with the fundamental rights.

Death penalty



The Supreme Court’s judgment in Bachan Singh vs State of Punjab (1980), which declared the death penalty constitutional, was another landmark in its history. The court, however, held that it should be imposed only in the rarest of rare cases, when the alternative of a life sentence was unquestionably foreclosed. The Constitution Bench in this case also held that while sentencing a convict and taking into consideration the mitigating circumstances, the court should adopt a criminal-centric approach rather than be merely swayed by the enormity of the crime. It is, however, a matter of regret that subsequent benches of the Supreme Court did not fully appreciate the essence of Bachan Singh and mechanically confirmed death sentences in many cases, calling them the rarest of rare.

In recent years, however, the court appears to have applied some correctives and considered the alternative of life sentences without remission even in cases considered to be the rarest of rare, although the denial of remission even to reformed convicts means that some arbitrariness remains. The court has also made it mandatory for the review petitions of death row convicts to be heard in open court by a three-judge bench of the Supreme Court to mitigate the chances of errors at the sentencing stage. The court has commuted the death sentences of several convicts to life imprisonment on the grounds of supervening factors, such as delay in disposal of mercy petitions, solitary confinement and mental illness, apart from introducing several safeguards to enable convicts to make use of legal remedies available to them effectively until they are hanged. The court, however, has erred in certain cases and deprived convicts of such remedies in cases where there was a societal and media outcry in favour of hanging the convicts.

Recent debate on privacy



The Supreme Court revisited many of these early debates when it recently heard arguments on the right to privacy in the petitions challenging the constitutional validity of Aadhaar. On August 2, a nine-judge Constitution Bench concluded a seven-day hearing on the question whether the right to privacy was a fundamental right, and reserved its judgment. To many, it would appear paradoxical that the apex court should be examining this issue in this day and age when the right to privacy as a facet of liberty of thought, expression, belief, faith and worship, mentioned in the Preamble to the Constitution, has always been recognised implicitly, if not explicitly. The need to examine whether privacy is a fundamental right guaranteed under the Constitution arose because the Aadhaar scheme, which the state is pursuing with vigour and which involves sharing of the biometric data of individuals, was challenged on the ground that it violated privacy.

During the hearing of this case, it was pointed out to the Supreme Court that an eight-judge bench in M.P.Sharma vs Satish Chandra and Others (1954) and a six-judge bench in Kharak Singh vs State of Uttar Pradesh and Others (1962) had held that privacy was not a fundamental right. It was also argued that all subsequent decisions of the Supreme Court holding that it was a fundamental right were delivered by benches whose strength was smaller than the ones that decided M.P.Sharma and Kharak Singh. Although it would appear a technical ground, the Supreme Court decided to examine the issue by making a reference to a nine-judge bench in order to give an authoritative ruling on the issue.

The petitioners pointed out during the hearing that the bench in M.P.Sharma made a casual observation that the right to privacy was not a fundamental right under Article 20(3) of the Constitution, which guarantees that no person accused of any offence shall be compelled to be a witness against himself. The bench had no occasion to examine whether the right to privacy could be read into other rights as at that time the Supreme Court, starting from the A.K. Gopalan case, believed that each individual right guaranteed under the Constitution dealt with a unique subject matter. Similarly, in Kharak Singh, it was held that there was no equivalent in India to the American right to privacy. The U.S, too, does not guarantee an explicit right to privacy but draws the right as a penumbral right, that is, a right that is necessary to make other rights, such as the right to freedom of speech and association, effective.

Gobind vs State of Madhya Pradesh and Anr (1975), decided by a three-judge bench, was the first case in which the Supreme Court stated that there was a fundamental right to privacy. The petitioners in the privacy case thus pointed out to the bench that Gobind did not conflict with M.P.Sharma because the Gobind bench considered Articles 19 (1)(a), 19(1)(d) and 21 as sources of the right to privacy, whereas the bench in M.P.Sharma did not have the occasion to examine this issue. It had confined itself to Article 20(3) and did not rule out that the right to privacy could be read into other articles of the Constitution.

Secondly, contrary to what the Central government had earlier claimed before the court, it was revealed that the eleven-judge bench in R.C.Cooper (1970) had overruled the decisions in Kharak Singh and A.K.Gopalan, which held that an impugned law could be analysed only under one constitutional provision and that the fundamental rights were mutually exclusive. In R.C.Cooper, the Supreme Court had struck down the nationalisation of banks because it impaired the right to compensation. Subsequently, in 1978, the decision in R.C.Cooper was endorsed in the landmark Maneka Gandhi case, in which a seven-judge Supreme Court bench held that Article 21 was to be read along with other fundamental rights and that the procedure established by law not only had to be just, fair and reasonable but also the law itself had to be reasonable as Articles 14 and 19 had now to be read into Article 21.

Subsequent judgments of the Supreme Court have only served to affirm the fact that the absence of a specific textual guarantee is no bar to a finding that a fundamental right to privacy exists under the Constitution.

The result of the privacy case could throw some light on whether the Supreme Court today is willing to adapt to the ethos of the changing times and defend the rights of individuals under the Constitution or whether it will get stuck in the outdated jurisprudence of the 1950s and the 1960s, as reflected by the judgments in M.P.Sharma and Kharak Singh. Some of the respondents, who saw nothing wrong in these early decisions, also pointed out the deliberate omission of the Constitution’s framers during the Constituent Assembly debates to make privacy a fundamental right.

The Supreme Court’s judgment on privacy is expected at a time when much of its jurisprudence has taken a conservative turn and shows a considerable degree of ambivalence on issues concerning institutional coherence and PIL. While the court, for instance, appeared to assert itself by striking down the National Judicial Appointments Commission Act in 2015 and reviving the collegium system of recruiting judges, its reluctance to go the whole hog in reforming the same system as it had promised to do exposed its own limits.

The Supreme Court set aside the Delhi High Court’s reading down of Section 377 of the Indian Penal Code, which criminalises consensual adult sex, because it involved the rights of a minuscule section of the population. The much-promised Constitution Bench to review this ruling by a two-judge bench is yet to materialise. Its latest judgment that directs the formation of committees with civil society participation and government funding in every district to decide prosecution of the accused in dowry-related cases involving allegations of cruelty to women is yet another step to reverse progressive jurisprudence of the early days.

The privacy and Aadhaar cases will be tests of the court’s ability to pursue its counter-majoritarian character with vigour and determination despite insurmountable challenges from the executive even as in coming weeks it is likely to decide key cases with a bearing on India’s secularism such as those relating to triple talaq and the Babri Masjid.