From Subordination to Supremacy: The Indian Supreme Court’s Rise in Governance

Since its inception in 1950, the Indian Supreme Court (SC) has undergone a remarkable transformation, evolving from a subordinate body into a central figure in Indian governance. This shift is the result of seven decades of struggle in which the SC navigated political and structural constraints to expand its jurisdiction and assert its authority. Over time, the Court has increasingly taken on roles traditionally reserved for the executive and legislature, especially in areas of policymaking. This significant expansion of power has led Manoj Mate, a scholar of judicial politics, to argue in his work Public Interest Litigation and the Transformation of the Supreme Court of India that “the Indian Supreme Court is the most powerful constitutional court in the contemporary world.”

The Indian Constituent Assembly, a body of elected representatives tasked with drafting the Indian Constitution after India gained independence from British rule in 1947, modeled the Indian Union legislature after the British “sovereign” Parliament, making Parliament the supreme legislative body in India. This decision prevented the Supreme Court, the highest judicial authority in India, from having equal status with Parliament. The Assembly designed the SC to be a weak, subordinate institution. The Indian Constitution, under Article 368, allowed Parliament to override SC judgments by making constitutional amendments. This arrangement ensured that the SC could not challenge Parliament’s decisions effectively.

Indian legal tradition inherited the British approach of Austinian Positivism, a legal theory associated with the British philosopher John Austin, which focused strictly on formal legal rules and interpretations. This approach placed too much emphasis on adhering to strict legal formalism, rather than considering broader moral or social concerns, further limiting the flexibility of Indian jurisprudence and weakening the role of the SC.

When the SC began its work in 1950, it did not receive strong support from the public. Many viewed it as an elitist institution with no clear mandate from the people. This perception worsened after the SC’s early clashes with the government in the 1960s and 1970s. In response, the Indian Parliament used its power to amend the Constitution to limit the SC’s influence. Parliament introduced several changes, including the Ninth Schedule and Articles 31B and 31C, along with the 24th, 25th and 29th Amendments. These amendments allowed Parliament to bypass minor delays caused by the SC’s judicial reviews, encouraging the SC to avoid directly challenging the central government.

The SC’s landmark Kesavananda Bharti case (1973), which established the Basic Structure Doctrine, limited Parliament’s ability to amend the Constitution. However, this ruling led to hostility from the executive branch. The government responded by superseding senior judges when appointing the Chief Justice of India and strategically filling the Court with judges who were more sympathetic to the government’s views.

The Emergency

The Emergency period (1975-77) saw a further increase in the government’s power. This was a turbulent and controversial time when Prime Minister Indira Gandhi declared a state of emergency across the country, citing internal disturbances. The government used this period to consolidate power and curtail political opposition. During the Emergency, civil liberties were suspended, and a number of democratic practices were suppressed, including censorship of the press and the imprisonment of political leaders. The executive branch, led by the Prime Minister, was able to operate with increased authority, while the judiciary, particularly the Supreme Court, faced pressures that limited its independence.

The 40th, 41st and 42nd Constitutional Amendment Acts played a pivotal role in altering the balance of power between the branches of government. These amendments were designed to limit the scope of judicial review, reducing the Court’s ability to challenge government actions and decisions. One of the most controversial measures during the Emergency was the Maintenance of Internal Security Act (MISA), which allowed the government to detain individuals without trial. MISA was often used to suppress political dissent by imprisoning opposition leaders, activists, and anyone deemed a threat to the government’s authority.

The Supreme Court’s failure to intervene against the government’s use of preventive detention and other authoritarian measures during this time significantly damaged its credibility. Its reluctance to challenge abuses under MISA, notably in cases like that of Shiv Kant Shukla, who was detained under the Act, led to widespread criticism. In these cases, the Court largely upheld the actions of the government, failing to protect the civil liberties of citizens. This contributed to a perception of the judiciary as a “regime court”—an institution that not only failed to defend fundamental rights but also seemed complicit in supporting the government’s authoritarian agenda. The Emergency period, thus, marked a period of heightened executive power, limited judicial independence and widespread repression of political freedoms.

After the Emergency

The post-Emergency era ushered in a new age of judicial activism in India. During this time, the Supreme Court played an active role in shaping public policy and ensuring government accountability. A key development in this period was the rise of Public Interest Litigations (PILs), which allowed citizens and organizations to file cases on behalf of public causes. This expanded the reach of the judiciary and increased public access to the courts, making it easier for individuals to seek judicial intervention in matters of public concern.

In an attempt to restore public trust and confidence in the judiciary, the SC broadened the interpretation of Article 32 of the Indian Constitution. Article 32 guarantees the right to constitutional remedies, allowing individuals to approach the SC if they believe their fundamental rights have been violated. By expanding this article’s interpretation, the SC widened the scope of locus standi, which refers to the legal standing or right to bring a case to court. Traditionally, only those directly affected by an issue had the standing to file a case, but the SC’s interpretation allowed both private and public interests to seek judicial relief. This meant that citizens, social organizations or even associations could now bring cases to the court on behalf of the general public.

In what can be described as a “classic Marbury move” (referring to the landmark Marbury v. Madison case in the United States, which established the principle of judicial review), the SC’s S.P. Gupta v. Union of India verdict in 1981 endorsed the standing for PILs. This case marked a shift in the Court’s approach, as it allowed public interest cases to be brought before the judiciary even if the petitioner was not directly affected. Following this, in Fertilizer Corporation Kamgar Union v. Union of India (1981), the SC assumed new roles of oversight and accountability, holding national and state entities to higher standards. The judgment established that citizens could challenge government actions and policies that were in violation of the public good.

By putting the PIL system into operation, the SC allowed all cases filed by citizens or organizations to be heard, even if they were not directly impacted by the issue at hand. This significantly broadened the scope of the judiciary’s involvement in public welfare and reinforced the judiciary’s role in ensuring government accountability.

Expansion of PILs

Throughout the 1980s, the Supreme Court of India significantly expanded its powers in Public Interest Litigation, which allowed the Court to take proactive actions in cases that concerned the public welfare. The SC introduced a concept in the Hussainara Khatoon v. State of Gujarat case, which became known as “remedies without rights.” This innovative approach allowed the SC to issue mandamus (orders requiring the government to act) in PIL cases without providing a conclusive verdict, allowing the Court to maintain continuous oversight in these cases. This flexibility made it possible for the SC to address social issues more effectively, even without the usual formalities of concluding a case.

In another landmark case, Bandhua Mukti Morcha v. Union of India, the SC further expanded access to justice by relaxing the standing requirements for filing PILs. The SC began accepting letters from individuals, social groups or any third-party litigant as legal petitions, thus allowing broader participation in the judicial process. This helped increase the Court’s role in addressing social justice issues, especially those affecting marginalized groups.

The SC also asserted its authority over the judicial appointment process. In the First Judges Case the SC had ruled that the executive had the final say in judicial appointments. However, in the Third Judges Case, the SC reversed this decision and established that the judiciary itself would have control over appointing judges. This decision greatly strengthened the independence of the judiciary in India.

During this period, the SC became more assertive in addressing corruption and maladministration. In the Jain Hawala Bribery Case, the SC took a strong stance in tackling corruption, even as it faced political pressure. The SC also played a critical role in protecting the right to information in cases such as Association of Democratic Reforms v. Union of India. In this case, the SC upheld the right of voters to access information about the criminal and financial records of candidates running for Parliament or state legislatures, ensuring transparency in the electoral process.

The SC further defended the right to information in the case of People’s Union for Civil Liberties (PUCL) v. Union of India, a case which also led the Court to declare the right to food as an integral part of Article 21 of the Indian Constitution. Article 21 guarantees the right to life and personal liberty, and the SC’s decision broadened its scope to include the right to adequate food, emphasizing the state’s responsibility to ensure citizens’ basic needs are met.

In cases related to environmental protection, such as the Godavarman Case, the SC took on a quasi-administrative role. The Court set up a high-powered committee to act as its fact-finding arm in overseeing forest conservation efforts. This led some scholars to refer to the SC as a virtual Ministry of Forests, highlighting its increasingly active role in policy matters beyond traditional judicial functions.

Additionally, the SC took a leading role in human rights protection and played an essential part in police reforms. In the Prakash Singh verdict (2006), the Court issued directives for reforming police institutions to ensure accountability, transparency and the protection of citizens’ rights.

In RK Garg v. Union of India, the SC upheld the Special Bearer Bond (Immunities and Exceptions) Ordinance Act of 1981, which allowed the government to combat black money in the economy. The SC ruled that the Act did not violate Article 14 of the Constitution, which guarantees equality before the law and equal protection of the law. This decision supported the government’s efforts to curb illegal wealth and improve financial transparency.

Despite the Supreme Court’s growing activism, it did not undermine parliamentary supremacy, even as it carved out a more active role in governance. While the SC became a key player in shaping public policy, it still avoided directly challenging the central government. The SC adopted a selective approach to assertiveness, supporting key government policies when needed. During the 1980s, the SC upheld the socialist-statist policies of the Congress Party, which was in power at the time. These policies emphasized state control over the economy and social welfare programs. Later, in 1991, when the P.V. Narasimha Rao government introduced liberalization, privatization, and globalization (often referred to as the LPG reforms), the SC did not challenge these pro-market reforms but instead supported their implementation. This marked a shift from state control to a more market-driven economy, with the SC playing a supportive, rather than confrontational, role in the changes.

The decline of Parliament

In the 1990s, the Indian Parliament became increasingly incapacitated due to the decline of one-party dominance, the rise of regional parties, the birth of coalition politics and a series of weak coalition governments. This shift in the political landscape allowed the Supreme Court to shed its previous criticisms as a regime court. With Parliament’s diminished power and authority, the SC took a more active role in governance.

The SC used Public Interest Litigations as a tool to assume new oversight and accountability functions, intervening whenever governmental institutions, including Parliament, violated or failed to uphold the Constitution and laws of India. The SC began to act as a central, prominent and active player in decision-making for both state and national entities.

As the apex court of India, the Supreme Court played a pivotal role in policymaking, defending civil and human rights and protecting vulnerable groups in society. It expanded educational rights, recognizing access to education as a fundamental right, and provided interim relief to poor prisoners while initiating reforms to improve prison conditions. The Court asserted the rights of prisoners and marginalized populations, ensuring their rights were respected. It introduced development and affirmative action policies to uplift disadvantaged communities and worked to curb state repression of human rights, holding the government accountable for violations. In the landmark Maneka Gandhi case, the Court expanded the interpretation of fundamental rights, broadening the protection of personal freedoms. Additionally, the Court addressed the issue of bonded labor, aiming to eliminate forced labor in India, and played a significant role in enforcing environmental policies, handling key cases like the Delhi Pollution Case, the Taj Mahal Pollution Case, and the Shriram Fertilizer Case, which tackled industrial pollution and its harmful environmental effects.

In these ways, the SC recognized its growing influence and power, becoming a crucial institution in protecting rights, holding the government accountable and shaping public policy.

SLPs and the judicialization of governance

The judicialization of governance in India reflects the journey of the Supreme Court, which evolved from a court struggling to assert its relevance to one that plays a central role in political and policy discussions in India. This transformation has made the SC a key player in shaping the country’s laws and governance. However, this evolution is not without its complications. One of the key challenges faced by the assertive SC is its failure at self-restraint—the difficulty in balancing its expansive jurisdiction with the need for institutional efficiency.

Raeesa Vakil, a lawyer and legal commentator, discusses this issue in her contribution titled “Jurisdiction” in The Oxford Handbook of the Indian Constitution. Vakil expresses concern over the SC’s broadening role, pointing out the blatant imbalance in its jurisdiction. This refers to the SC’s increasing involvement in both policymaking and governance, sometimes stepping into areas traditionally handled by the executive and legislature. Vakil questions whether the Court’s expanding power is in line with its constitutional mandate or whether it undermines the principle of separation of powers among the branches of government.

The Supreme Court, as the apex court of India’s unified and integrated judiciary, holds a central position in the country’s legal system. It exercises appellate jurisdiction over a range of cases, including constitutional cases, civil cases and criminal cases. These cases typically involve appeals from lower courts, where individuals or organizations seek to challenge or review lower court rulings.

When the Constituent Assembly established the Supreme Court, it imposed strict restrictions on the types of cases the Court could hear. The primary concern was that if the Court had too broad a jurisdiction, it could become overwhelmed by appeals and ultimately collapse under the weight of the caseload. These restrictions were designed to act as filters, ensuring that the Supreme Court would only hear certain cases, including civil cases involving significant financial stakes, criminal cases involving a death sentence due to the severity and finality of such judgments, constitutional cases that raised important legal questions or impacted the public interest and cases certified by the High Courts for their importance.

In general, not all appeals have the automatic right to a hearing in the SC. The Court has discretion to choose which cases to entertain based on the above criteria.

Curiously, despite the SC’s original jurisdiction, appeals have come to form the core of its jurisprudence. A disproportionate amount of the SC’s caseload consists of Special Leave Petitions (SLP), which allow individuals or organizations to appeal a decision made by any lower court or tribunal in India. Shockingly, 88% of the cases heard by the SC are SLPs, highlighting the Court’s heavy reliance on its appellate role, rather than its original jurisdiction.

Over time, the Special Leave Petition has become a way for litigants to bypass the strict restrictions on appeals to the Supreme Court, allowing them to raise their grievances in the highest court in the land. This loophole has allowed more cases to reach the SC, despite the original limitations set by the Constituent Assembly to prevent the Court from becoming overwhelmed. Additionally, Parliament has gradually relaxed the qualifications for filing an SLP. For example, the 30th Amendment Act of 1972 removed the pecuniary threshold for civil cases, making it easier for civil appeals that raise substantial questions of law and public importance to be heard by the SC. Similarly, the Enlargement of Criminal Appellate Jurisdiction Act, 1970 allowed all criminal cases resulting in a life sentence or imprisonment for more than ten years to automatically proceed to the SC.

Inefficiency within the Court

However, the intention to reduce the number of appeals through SLP has largely failed. This is because the SC has been unwilling to impose any restrictions on the SLP process, despite the burden of managing its vast jurisdiction. The SC has consistently defended the SLP process in an increasingly exaggerated manner, treating it as an “untrammeled” source of power that cannot be confined by clear definitions. The SC has resisted attempts to define the nature and scope of Article 136, which governs the SLP process, or to establish standard guidelines for the exercise of discretion in accepting or rejecting SLPs.

Moreover, Supreme Court jurisprudence has been shaped by the practice of division benches—two or more judges working together on a case. This system has led to a legacy of uncoordinated judgments, marked by inconsistency and discrepancies in the interpretation of law. As a result, the application of legal principles has been erratic, often influenced by emotional subjectivity when deciding whether to admit appeals under Article 136. This has led to arbitrary decision-making, with the criteria for accepting cases constantly evolving in unpredictable ways.

The absence of clear guidelines for how the SC should exercise its discretion in Special Leave Petitions has caused significant problems. Instead of maintaining its original purpose as a measure of last resort, the SLP process has become a normalized part of SC jurisprudence, with many cases routinely passing through the Court without sufficient restraint or consistent standards.The unequal expansion of the Supreme Court’s jurisdiction has significantly contributed to the 300-year backlog of cases in the Court. While there has been much debate over the need for systemic reforms to address the burdens and structural issues of the SC, the judicial backlog is also a result of the jurisdictional imbalance in the Court’s role. In retrospect, the SC’s unwillingness to place limits on the number of petitions it hears has led to a loss of credibility in the judgments made by both higher courts and subordinate courts.

If parties involved in legal disputes can appeal to the SC for even the most trivial matters, what prevents someone from taking a menial issue all the way to the Court? The wide scope of the SC’s appellate jurisdiction—which allows it to have final authority to overturn decisions from lower courts—has left the subordinate courts with little power or control over their rulings.

In hindsight, the SC’s reluctance to better regulate its own jurisdiction has allowed it to maintain control over the entire judicial system in India, expanding its influence over national governance. However, this approach has also led to significant inefficiencies within the judiciary, as the SC becomes burdened with a massive number of appeals, leading to delays and a lack of timely justice.

While the Supreme Court’s ascendancy in governance has strengthened democracy and the system of checks and balances in India, the Court’s institutional insecurities regarding its hard-fought and hard-earned position have made it reluctant to reduce its jurisdiction. The SC’s failure to self-restrain is largely a result of the historical struggle it faced to gain a position of influence in the Indian government, especially in the context of the Westminster model of governance. In this environment, the SC had to fight for its independence and its role as a powerful institution. As a result, the SC’s growing pro-people activist stance—focusing on public welfare and rights—has come at the cost of its ability to function efficiently and manage its workload without being overwhelmed.

[Kaitlyn Diana edited this piece]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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