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DHARMASHASTRA NATIONAL LAW

UNIVERSITY, JABALPUR

(Session 2020-2021)

Journey of Supreme Court of India: From 1773 to

1950

Submitted To: Submitted By:

Ms. Asmita Jataria Sanskrati Jain

[Assistant Professor Section B

of History] BALLB/116/20

Semester -II
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ACKNOWLEDGEMENT
The completion of this project required counselling and assistance from many people and I’m
really thankful towards them for their counselling in my project.

I would like to express my deep gratitude towards my teacher asst. professor Ms Asmita
Jataria, who took acute interest in my project and guided me all along. I’m feeling extremely
privileged to have her as my instructor in the project. I owe my deep gratitude to the vice-
chancellor Prof. Balraj Chauhan for his valuable support throughout the project. This project
helped me in gathering a lot of knowledge and becoming more aware of things related to my
topic.

I would like to extend my gratefulness to my parents and friends for their valuable support
and advice.

I am making this project not only to get marks but also to enhance my knowledge. At the end
I would like thank everyone who helped me and invested their valuable time for this project.

Sanskrati Jain
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ABSTRACT
This historical study aims at knowing the evolution of Supreme court in particular and Indian
judicial system in general. The evolution of Judicial system somehow revolves around the
history of supreme court. The author has focused her research around three main courts that
came into existence: 1) Supreme Court of Judicature at Calcutta, 2) Federal Court, 3)
Supreme court of India. Firstly, the author has introduced the topic to the readers and built the
foundation for better understanding and structure of the study. Then author and discussed her
three main points in detail one by one. The powers, jurisdictions, characteristics and other
facts related to those courts have been categorically explained. The reasons for birth or death
(if happened) of those courts are also included in the study. The basic idea of this study is to
delve into the history of supreme court in light of prevailing situations. And at the end the
author has concluded her study by analysing the apex court’s judgements and role in
independent India, by analysing a newspaper article. The author has also provided her
personal opinion regarding the working of SC. There is a critical analysis of SC’s working at
the end.
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Table of Contents

Acknowledgement......................................................................................................................2

Abstract......................................................................................................................................3

Introduction................................................................................................................................5

Research Problem.......................................................................................................................6

Literature Review.......................................................................................................................6

Research Methodology...............................................................................................................6

Research Objectives...................................................................................................................7

Research Questions....................................................................................................................7

Hypothesis..................................................................................................................................7

Scope Of The Project.................................................................................................................7

Limitations.................................................................................................................................7

Data Collection...........................................................................................................................7

Supreme Court of Judicature at Calcutta...................................................................................8

Federal Court of India..............................................................................................................10

Supreme Court of India............................................................................................................11

Conclusion................................................................................................................................13

Bibliography.............................................................................................................................15
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INTRODUCTION
Article 142 of the constitution declares that all the laws declared by the Supreme Court of
India to be binding on all courts, which makes it the apex court of the nation. The Supreme
Court has been assigned a very significant role in the Indian political system and is the final
interpreter of the constitution. Under the Constitution of India’s Article 124(1), states that
there shall be a Supreme Court of India the Supreme Court which is provided with the scope
of judicial review. The judicial review allows the Supreme Court to safeguard fundamental
rights and struck down legislations which are violative of Constitutional provisions. Under
Article 13, 32, 131-136, 143, 226 and 246 Supreme Court can review any law. Hence, it is
known as the Guardian of our Constitution.

The Supreme Court of India (SCI) is one of the most important institutions of India, so it
becomes imperative to know the very history of this institution. The history of SCI has roots
back in the British era. The SCI we see now is result of evolution in legal system and years of
development in jurisprudence in the nation. From Supreme Court of Judicature in Calcutta to
Supreme Court of India, the journey wasn’t without important learnings which were essential
for the development of a vibrant, impartial, just and reasonable legal body that can provide
people justice with fairness, which is reflected in the inscription in the seal of the SC in

Sanskrit it holds, “यतो धर्मस्ततो जयः” ‘Yato Dharmastato Jaya’ which means “Where
there is the Dharma (Justice), there will be Victory.”

The history of SC can be traced back in 1774 with establishment of Supreme Court of
Judicature in Calcutta. After it the Federal Court came into being in 1937 and which remains
the same till the 1950. On 28 January 1950 the Supreme Court of India came into being. And
it became the protector of fundamental rights in India with a power of issuing writs under
Article 32 of Constitution of India.

Although the idea of justice administration was there since the times of Vedas, precisely from
the Bronze Age and the Indus Valley civilization. It evolved with the time and varied from
region to region or ruler to ruler in ancient India. Very fair and healthy court systems existed
under the Mauryas (321-185 BCE) and the Mughals (16 – 19 centuries) which preceded the
current scheme of common law in India, which is brought in by the Britishers in India.

So, the credit to organise judicial administration laws in a judicious and logical structure
India goes to Britishers. There structured approach to the judiciary was also later adopted by
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the visionaries of our nation in constituent assembly by clearly demarcating judiciary a

branch of the state. The leaders of our nation who got us independence envisioned an
independent and transparent judiciary in this democratic nation, as independence of judiciary
is indispensable for a democracy to smoothly function.

So, here in this project we will try to have a look into the evolution of the Supreme Court in
India since 1773 till the date we got our independent and transparent Supreme after the
independence in 1950.This project will also delve into the prevailing conditions that helped in
nurturing a transparent and fair supreme court in our country.

“The Supreme Court is the last line of defense for the separation of powers and for the rights
and liberties guaranteed by the Constitution.” -Brett Kavanaugh

RESEARCH PROBLEM
To understand the reasons for anything we must learn the history of that thing. So, the
reasons for the existence of Supreme Court are unknown to the author, which can lead to
underestimation of Supreme Court’s importance in the history and present times.

LITERATURE REVIEW
This project cannot be possible without going through literature available on the topic under
study. Before starting up the work on the problem the present study aims to review the
existing literature on the subject. The review of the existing literature would provide clarity
of concept, Introductory understanding of different aspects, and would help in identifying
problem zones and formulating research methodology.

M.P. Jain, “Outlines of Indian Legal History” (Page no. 70-76, 359-380), 5 th Edition (2014)
is a classical text for studying India’s legal history in particular. It has been written in
narrative form in an easy-to-understand style. It contains short, coordinated, integrated and
coherent account of the important phases of the development of legal institutions in India. It
also contains various chapters on modern judicial system, from Privy Council to Supreme
Court, high courts, development of law, personal laws, codification, law reform, law
reporting and legal profession, legal education, development of constitutional law, criminal
law, development of civil law, etc. with reference to case law and exhaustive commentary. It
gave me brief idea about the political situation and the reasons for the changes in the legal
system.
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V.D. Kulshrestha, “Landmarks in Indian Legal and Constitutional History” (Page no. 97,
125-127, 191-209), 7th Edition (1995) is an analytical survey of the legal developments in the
Indian context and a comprehensive treatment of the subject are the highlights of the book.
The book covers the case-law and other legal and constitutional developments till 2004, it
gave us brief idea about the facts and the to the point conditions prevailing and specific points
of the laws.

Raj Kumari Agrawal, “History of Courts and Legislature” (Page no. 114- 125) is a research
paper which thoroughly and comprehensively discusses the very history of apex court in our
nation. It provides us with facts and figures from very reliable and credible sources. It also
gives us a fair idea or background for our study. This research paper is about the judicial
history of India and overall, it discusses the various courts established and change in their
character and functions with the passage of time.

RESEARCH METHODOLOGY
Doctrinal research also known as, theory-testing or knowledge building research has been
done to shape the project. The research was done mainly by e-resources. A lot of research has
already been conducted on the same topic, so some research papers have also been gone
through. With the help of internet various books’ summary and their excerpts were read.
Various magazine and articles are also considered to know various opinions and point of
views on the same topic. Various materials that are available on e-sources have been
critically analysed and the similar ideas have been put forward in the project. All the primary
as well as secondary documentary sources will be utilized to make the study up-to-date,
orderly and scientific. Various reports, books, articles, journals, judicial decision, website,
international, constitutional norms and national measures will be taken as important research
tools. Besides these methods, some other methods will also be applied according to the need
of the study.

RESEARCH OBJECTIVES
 To understand the evolution of a very esteemed institution.
 To evaluate judicial systems in India at different periods of time.
 To study the prevailing situations that led to evolution and changes in the status quo of
judicial systems in India.
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RESEARCH QUESTIONS
 Why and how the judicial system evolved in India?
 What led to the changes in the status quo and influence of political and prevailing
situations that led to changes?

HYPOTHESIS
 A little is known about history of Supreme court to the author and people in general.
 Enough reliable resources are available to evaluate and study the past of this esteemed
institution.
 Logically aligning the situations to the political stir going on at that time can lead us to
understanding the reasons of change in the status quo.

SCOPE OF THE PROJECT

The author has tried her best to involve everything relevant to the Judicial history of India.
But the study can’t be stretched to miles. That’s why we have to limit the scope of this
historical study to a particular time period or only a selected topic of study. So, we have
limited our study only to the time period of 1773 to 1950 and towards understanding and
studying the judicial history of Supreme Court only.

LIMITATIONS
 The sampling done is mainly from secondary sources, so can be called unreliable
 The project is made after going through various sources and opinions, which can be
biased; same might have been reflected in project.
 Normally the historical records are exaggeration of the reality so the reasons which we
are trying to understand might get deflected.

DATA COLLECTION
Data collection is an important aspect of research. The data is mainly collected through e-
sources and various books and research papers available on the same topic.
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SUPREME COURT OF JUDICATURE AT CALCUTTA

Britishers came to India for trade and commerce, so in pursuance they slowly established
their factories and increased the territorial area under them because their factories provided a
lot of opportunity of employment for Indians. So, they started shifting near the factories
which were called as mofussil area. It somehow ended up in various conflicts among natives
and Britishers. Here, the need of a court or a mediating body arose.

There were various reasons behind establishment of Supreme Court of Judicature one of them
was the terrible famine in Bengal where a huge population perished, The Dual form of
administration instituted by Robert Clive was complex and was drawing a lot of complaints.
According to this system, the company had Diwani rights (obtained after the Battle of Buxar)
in Bengal and the Nawab had Nizamat rights (judicial and policing rights) as secured from
the Mughal Emperor. In reality, both powers were vested with the company. The farmers and
the general population suffered as their improvement was neglected and the company was
only concerned with maximising revenue, which gave rise to more conflict of interests.
Moreover, lawlessness increased in Bengal due to famine and flow of money towards the
England. Apart from this, The East India Company was in severe financial crisis and had
asked a loan of 1 million pounds from the British government in 1772. Allegations of
corruption and nepotism were rampant against company officials. So, owing to the pressure
the company has to bow down in front of British crown and accept the provisions suggested
by the crown.

So, in the Regulating Act of 17731, the provisions were more of crown’s choice, as the king
was the pressure maker. The Act of 1773 was the first attempt at creating a separate and
somewhat independent judicial organ in India, under the direct control of the King. Section
13 of the Regulating Act empowered the Crown to establish by Charter, a Supreme Court of
Judicature at Fort William, Calcutta. It replaced the Mayor's Court of Calcutta and
was British India's highest court from 1774 until 1862, when the High Court of Calcutta was
established by the Indian High Courts Act 18612. This Supreme Court consisted of one Chief
Justice and three other regular judges or Puisne Judges. The Judges had to be Barrister-at-

1
13 Geo. 3 c. 63
2
24 & 25 Vict. c. 104
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Law of England or Ireland of not less than five years' standing. The charter appointed Sir
Elijah Imphey as the chief justice and Robert Chambers, Stephen Caesar Lemaitre and John
Hyde as puisne judges who were appointed by the king. On March 26, 1774, a Charter of
Justice was granted for the establishment of the Supreme Court at Calcutta King George III.
The Supreme Court was established on 22nd. October, 1774, and began functioning In
January, 1775.

Also, under Clause XVIII of the first Charter ordained that “the Supreme Court should be a
court of equity, and shall and may have the full power and authority to administer justice, in
a summary manner, as nearly as may be, according to the rules and proceedings of our High
Court of Chancery in Great Britain”. This court had the power to exercise of all the cases
related to civil, criminal, admiralty, and ecclesiastical matters. Especially in criminal cases,
the court has to act as court of oyer and terminer3 and goal delivery for the Town of Calcutta
and the factories subordinate thereto, and was to use grand jury as well as petty jury
consisting of British subjects residing in the Town of Calcutta. The appeals from the Supreme
Court were made to the King in council in England within stipulated period. King in council
got the Suo moto power to change or disallow any rule without appeal within the period of 2
years.

But the Supreme court’s biases towards the Englishmen and unfairness in trial lead to its
deterioration. For example, in cases like Raja Nandkumar4, Kamaluddin5, Patna6 &
Cossijurah7 the SC’s bias was clearly visible. Moreover, this cases also involved politics in
some or other way so SC became tool to fuel the political rivalry. There was a big tussle
between the Supreme Court and Governor-General in Council which disturbed the balance of
administration to a great extent. Along with this, there was interference in the personal laws
of the communities which had agitated the people. Moreover, Relationship between governor
general and council and Supreme Court not defined. Governor general and council rejected
the authority of court. Thus, it became source of annoyance. Relationship between Mofussil
Adalats and Supreme Court was also not defined. whether they were subordinate to Supreme
Court or not. Also, jurisdiction beyond the Calcutta was not defined. court could issue the

3
the power to try offences and imprisonment.
4
https://kupdf.net/download/conflict-raja-nandkumar-kamaludin-patna-case-and-
cossijurahdoc_5a40bf3ee2b6f56f1dbe7fbc_pdf
5
https://www.legalbites.in/working-court-raja-n-kumar-patna-cossijurah-cases/
6
http://www.legalserviceindia.com/legal/article-233-case-analysis-the-patna-case.html
7
https://www.lawcolumn.in/the-cossijurah-case-1779-80/
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summons even for people outside the Calcutta. Even people were detained in jail till decision.
As well as Courts applied English law in India & Criminal law applied in India was harsh.

Which led to its degradation and in order to revive its position Britishers brought changes to
it by The Settlement Act of 17818 also known as Declaratory Act. The Act said that the
servants of the company which earlier came within the jurisdiction of the Supreme Court
were now exempted from the jurisdiction of the Supreme Court. By the enactment of this
Act, the court’s geographical jurisdiction became limited to only Calcutta. The court now had
no jurisdiction in the revenue matters concerning revenue, or any act was done in the
collection thereof, the government now became independent of the control of the court in the
matter of revenue. The Appellate jurisdiction
shifted in the hands of the Governor-General and
Council. Now, the appeals went from Provincial
Courts to the Governor-General in council. This
act asserted that Mohammedan law should be
applied on the Mohammedan cases and similarly,
the Hindu law must be applied to Hindu cases.

Even after these amendments, the Act still failed

to give a vibrant impact and to remove all the
flaws of the Regulating Act of 1773. And at the end it led to the demolishment of Supreme
court of Judicature in 1862. Before 1862 many changes were there but nothing was able to
revive the SC and hence the Britishers were forced to demolish it in 1862. After that the privy
council which wasn’t any court or tribunal worked as a judicial body in India till 1935 when
the Federal Court of India replaced it.

FEDERAL COURT OF INDIA

Federal court of India was established in 1937 by Government of India Act,1935. Sir Hari
Singh Gaur was the first in the legal history of India, who realized the necessity of
establishing and all Indian court of final appeal in Indian place in place of Privy council. He
moved resolutions many times in Central Legislature Assembly between 1921-1925
regarding establishment of an ultimate court in India. He also stated the reasons for his
demand that Judicial Committee of the Privy Council was not a tribunal or a Court, it was
just an advisory body constituted and intended to advise the King, so why is it empowered to
8
https://blog.ipleaders.in/regulating-act-1773/#:~:text=The%20Act%20of%20Settlement%20was,known%20as
%20Declaratory%20Act%2C%201781.
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decide cases in India. The expenditure of an appeal to the Privy Council was too expensive.
The distance from India of the Privy Council resulted in unnecessary delay (four to five years
in many cases).9

During the period 1931-32 i.e., between the Second and third conclave of the Round Table
Conference, the Central Legislature passed an undertaking for the establishment of Federal
Court of India. The joint Select Committee of both the Houses of Parliament presented a
report in November, 1934 recommended to establish a Federal Court in India. Foundation of
the Federal Court changed the structure of the Indian Government from “Unitary” to that of
the “Federal type”10 in India. The Act established the foundation for the Federal framework
in India. Section 200 of the Act provided for the establishment of a Federal Court in India. 11
Authority of Law laid down by Federal Court: Section 213 of the Government of India Act,
1935 provided that the law declare by the Federal Court and any judgment of the Privy
Council will be binding on all the Courts in British India. It introduced the English Doctrine
of precedent in India.

It had original, appellate and advisory jurisdiction. Original jurisdiction was provided under
Section 204 of the Act of 1935 There was a right of appeal to the Judicial Committee of the
Privy Council in London from the Federal Court of India. The Federal Court had exclusive
original jurisdiction in any dispute between the Central Government and the Provinces, under
Section 208 in the exercise of its original jurisdiction. Section 213 of the Act of 1935
empowered the Federal Court to give advisory opinion to the Governor General. Governor
General was not to bound to accept the opinion of the Federal Court which was given under
section 213. Appellate Jurisdiction the Federal Court exercised appellate jurisdiction in
constitutional cases under the Act of 1935, its appellate jurisdiction was extended to civil and
criminal cases from 1948. In the beginning, it was empowered to hear appeals from the High
Courts of the provinces in the cases which involved the interpretation of any Section of the
Government of India Act, 1935. From 5 January 1948 it was also empowered to hear appeals
in those cases, which did not involve any interpretation of the Government of India Act, 1935.

For appointment of a Judges in Federal Court, the Chief Justice and not more than six judges,
who were to be appointed by the King. On 1st October, 1937, the Federal Court was

9
https://www.livemint.com/Opinion/Sso9kkvJY2HDjqDVragv8K/The-birth-of-Indias-powerful-Supreme-
Court.html
10
A Federal Constitution, it must be noted, involves a distribution of powers between the Centre and the
component units.
11
https://www.slideshare.net/vissu.madasu/federal-court
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inaugurated at Delhi. Three judges were appointed in the Court of namely: Sir Maurice
Gwyer (Chief Justice), Sir Shah Muhammad Sulaiman, Mukund Ramrao Hayakar. 12 The seat
of the court was the Chamber of Princes in the Parliament building in Delhi. It functioned
until the establishment of the Supreme Court of India on 28 January 1950, two days after
India was declared a republic.

SUPREME COURT OF INDIA

On the 28th of January, 1950, two days after India became a Sovereign, Democratic,
Republic, the Supreme Court came into being, as there was a dire of final interpreter of
constitution, apex resolver of disputes. The inauguration took place in the Chamber of
Princes in the Parliament building which also housed India's Parliament, consisting of the
Council of States and the House of the People. The inaugural proceedings were simple but
impressive. They began at 9.45 a.m. when the Judges of the Federal Court - Chief Justice
Harilal J.Kania and Justices Saiyid Fazl Ali, M. Patanjali Sastri, Mehr Chand Mahajan,
Bijan Kumar Mukherjea and S.R.Das - took their seats.13 After its inauguration on January
28, 1950, the Supreme Court commenced its sittings in a part of the Parliament House. The
Court moved into the present building in 1958. The building is shaped to project the image of
scales of justice. The Central Wing of the building is the Centre Beam of the Scales. In 1979,
two New Wings - the East Wing and the West Wing - were added to the complex. In all there
are 15 Court Rooms in the various wings of the building. In 2019 court room number was
increased to 17 after increase in the number of judges. The Chief Justice's Court is the largest
of the Courts located in the Centre of the Central Wing.14

As per the Article 124 of Indian Constitution, there shall be a Supreme Court of India
consisting of a Chief justice of India (CJI) and 33 judges. The SCI started its journey with 7
Judges + CJI. But later on, ss the work of the Court increased and arrears of cases began to
cumulate, Parliament increased the number of Judges from 7+CJI in 1950 to 10+CJI in
1956, 13+CJI in 1960, 17+CJI in 1978 and 25+CJI in 1986. Subsequently, the Supreme
Court (Number of Judges) Amendment Act, 2009 further augmented the strength of the court
from 25+CJI to 30+CJI. Again in 2019 the parliament enacted a law and increased the
strength of SCI to 33+CJI. This all changes in composition of SCI were due cumulation and
pendency of cases in the apex court. As the number of the Judges has increased, they sit in

12
https://www.jstor.org/stable/43949806?refreqid=excelsior%3A1f31368ea08c1f4952e5a2268cac2695&seq=1
13
Current 47th CJI , Justice Sharad Arvind Bobde.
14
https://main.sci.gov.in/history
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smaller Benches of two and three - coming together in larger Benches of 515 and more only
when required to do so or to settle a difference of opinion or controversy.

The Supreme Court of India has all three jurisdictions 16 original jurisdiction, appellate
jurisdiction and advisory jurisdiction. It is sole right holder to decide in case of dispute
between central and state government or disputes between any two states under Article 131 of
Indian constitution.

The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the
High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of
any judgement, decree or final order of a High Court in both civil and criminal cases,
involving substantial questions of law as to the interpretation of the Constitution. Appeals
also lie to the Supreme Court in civil matters if the High Court concerned certifies: that the
case involves a substantial question of law of general importance. that, in the opinion of the
High Court, the said question needs to be decided by the Supreme Court.

Article 143 authorises the President of India to seek an advisory opinion from the Supreme
Court in the two categories of matters: (a) matters of public importance (b) of any question
arising out of pre-constitution, treaty, agreement, engagement, Sanad or other similar
instruments. Also, Article 144 states that all authorities civil and judicial in the territory of
India shall act in aid of the Supreme Court.17

The Constitution of India under Article 136 vests the Supreme Court of India, the apex court
of the country, with a special power to grant special leave, to appeal against any judgment or
order or decree in any matter or cause, passed or made by any Court/tribunal in the territory
of India. It is to be used in case any substantial constitutional question of law is involved, or
gross injustice has been done. It is discretionary power vested in the Supreme Court of India
and the court may in its discretion refuse to grant leave to appeal. The aggrieved party cannot
claim special leave to appeal under Article 136 as a right, but it is privilege vested in the
Supreme Court of India to grant leave to appeal or not.

Any provision in any Constitution for Fundamental Rights is meaningless unless there are
adequate safeguards to ensure enforcement of such provisions. Since the reality of such rights
is tested only through the judiciary, the safeguards assume even more importance. So, the
SCI has been provided with Writ Jurisdiction under Article 32 of the Constitution for the
15
Called Constitution Bench.
16
Articles 141, 137 of Indian Constitution.
17
https://www.slideshare.net/jomypnt/supreme-court-of-india-40168008
15 | P a g e

violation of fundamental rights guaranteed under Part – III of the Constitution. Five types of
protections or writs have been provided in the Constitution, (i) Writ of Habeas Corpus, (ii)
Writ of Mandamus, (iii) Writ of Certiorari, (iv) Writ of Prohibition, (v) Writ of Quo-
Warranto. This provision of Indian constitution was acclaimed to be “The jewel of Indian
Constitution” by the father of our Indian constitution, Dr. B.R. Ambedkar.

All the judges of SCI are appointed by President of India. In order to be appointed as a Judge
of the Supreme Court, a person must be a citizen of India and must have been, for at least five
years, a Judge of a High Court or of two or more such Courts in succession, or an Advocate
of a High Court or of two or more such Courts in succession for at least 10 years or he must
be, in the opinion of the President, a distinguished jurist. Provisions exist for the appointment
of a Judge of a High Court as an Ad-hoc Judge of the
Supreme Court and for retired Judges of the Supreme
Court or High Courts to sit and act as Judges of that
Court.18

Apart from this SCI has many powers such as Power to

Review- to review any judgment pronounced or order
made, subject to law passed by Parliament, it can take place upon discovery of new important
matters of evidence – mistake or error on the face of the record – any other sufficient reason
Review is exceptional phenomenon only where a grave and glaring error.

It is a Court of Record, where records are admitted with evidentiary value and they are not to
be questioned when they are produced before the court and it also has power to punish for
contempt of itself. Other powers include, transfer of Cases, appeals from one High Court to
another, withdrawal of cases from High Court, Article 142 doing complete justice,
Rulemaking power, Interpretation of the Constitution, Power of Judicial Review
(Invalidating laws and executive actions).

CONCLUSION

18
Under article 124 of Indian Constitution which provides for ‘Constitution and establishment of S.C. ‘clause
(1) states that the Supreme Court of India comprises a Chief Justice and another number of judges as Parliament
by law prescribes.
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A systematic evolution of Indian judiciary has occurred. The Supreme Court of India was
able to maintain its quicksilver nature. The court kept on changing as the time demanded.
Evolution of Judiciary and how it interpreted the Constitution can be understood in the
following phases:

Phase One: Textualist Approach

 In its early years, the Supreme Court adopted an orthodox approach. It focused on
the literal interpretation of the words as mentioned in the Constitution.
 For example, in A.K. Gopalan v. State of Madras (1950) case, the Supreme Court
interpreted the Fundamental Rights under Part III.
 In this case, the leaders of the Communist Party of India claimed that preventive
detention legislation was conflicting with Articles 19 (the right to freedom), 21 (the
right to life) and 22 (the protection against arbitrary arrest and detention).
 The Supreme Court upheld the validity of preventive detention and decided that each
of those articles covered entirely different subject matter, and were to be read as
separate codes rather than being read together.
 At that time, the most controversial questions pertaining to Indian Constitution had been
whether there are any limitations on Parliament’s power to amend the Constitution,
especially Fundamental Rights.
 However, the Court in its early years read the Constitution literally, concluding that
there were no such limitations.

Phase Two: The Structuralist Approach

 The Supreme Court began exploring other methods of interpretation. Appeals to the text
of the Constitution were gradually overhauled by appeals to the Constitution’s overall
structure and coherence.
 In the leading case of Kesavanand Bharati v. State of Kerala (1973), the Supreme Court
concluded that Parliament’s power to amend the Constitution did not stretch to
transmuting its Basic Structure.
 The Supreme Court in Maneka Gandhi v. Union of India (1978) case reversed its earlier
stand that it took in A. K. Gopalan case.
 In this case, the Court conceived of the Fundamental Rights as a cohesive bill of
rights rather than a miscellaneous grouping of constitutional guarantees.
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 The Right to Life was interpreted to include a wide range of rights such as clean
air, speedy trial, and free legal aid. This paved the way for the Supreme Court to
play an unprecedented role in the governance of the nation.
 In order to implement this, the Supreme Court of India, pioneered the Public
Interest Litigation (PIL) thereby throwing upon the portals of Courts to the
common man.
 PIL has today acquired unprecedented legitimacy and binding power and is
acknowledged as a powerful weapon to combat governmental lawlessness and
social oppression.

Phase Three: Challenge of Heterogeneity

 The Supreme Court’s interpretive philosophy turned far more result-oriented but it
lacked thorough reasoning of the issues. Reasons for this:
 The Supreme Court which at its inception began with eight judges grew to a
strength of 34 judges.
 However, with the increasing burden of cases, it began to sit in panels of two or
three judges, effectively transforming it into a “polyvocal” group.
 Further, Judicial Activism helped Indian Judiciary to become one of the most powerful
judiciaries in the world. However, the Indian Judiciary has been alleged of Judicial
Overreach (interfering in the domain of executive and legislature), nepotism and
protecting itself of any reform under the guise of independence of the Judiciary.
 This can be reflected in cases like rendering the National Judicial Appointment
Commission (99th Constitutional Amendment) as ultra vires or Master of the
Roster controversy.

Phase Four: Social Revolution and Transformation

 Recently, the Supreme Court has passed many judgments recognising the individual's
rights and thereby ushering an era of social transformation. For example:
 Lifting the ban on entry of women (aged 10-50) inside Sabarimala Temple: The
Supreme Court held that "Devotion cannot be subjected to gender discrimination"
and removed a ban that prevented women between 10 and 50 years of age from
entering Kerala's Sabarimala temple.
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 Decriminalisation of Homosexuality: Supreme Court in 2018 decriminalized

homosexuality stated under Section 377 of the Indian Penal Code in case of
Navtej Singh Johar vs. UOI.
 Adultery Not A Crime: The Supreme Court unanimously struck down a 150-year-
old law that considered adultery to be an offence committed against a married
woman by another man. Defined under Section 497 of the IPC, adultery law came
under sharp criticism for treating women as possessions rather than human beings.
The Supreme Court declared Section 497 as unconstitutional. Adultery is no
longer a crime but if it leads to someone committing suicide, the act will be treated
as a crime - abetment to suicide.

Apart from these, Indian Judiciary has also taken reforms that sought to instil transparency in
Indian judicial system like live streaming of Supreme Court and bringing of CJI under
RTI. However, Indian Judiciary should strive to strike a balance between transparency &
accountability and maintaining the independence of the Judiciary.19

There are cons of this things as well, like the epitome institute of India which fought for
transparency in every sphere of govt. administration ironically, itself has a very intransparent
collegium system to elect judges. Giving unfettered powers in the hands of judge to overrule
the laws duly enacted by parliament consisting democratically elected parliamentarians is
somehow undemocratic. As, an in transparently elected judge has the power to nullify a duly
enacted law by a democratically elected government.

So, the other side of coin should also be looked upon and the Indian apex court should try to
avoid judicial activism unless there might be a grave miscarriage of justice and it is against
the basic principles of constitution as envisioned by our forefathers. The apex court should
try to balance the things out and should not transgress their powers and interfere in
parliament’s or executive’s purview. Separation of power is the foundation of these three
pillars of the independent India, which is very clearly enshrined under Article 5020 as a DPSP
in part IV of Indian Constitution.

BIBLIOGRAPHY
Books:

19
This is based on “The four phases of constitutional interpretation” which was published in The Hindu on
27/01/2020. It talks about the evolution of the Indian Judiciary after independence.
20
The State shall take steps to separate the judiciary from the executive in the public services of the State.
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 Courts of India Past to Present 2018, written by eminent judges, advocates and legal
luminaries among others under the expert guidance of an Editorial Board constituted
by the Supreme Court.
 Architecture of Justice by Vinay R Thakur and Amogh Thakur.
 M.P. Jain, “Outlines of Indian Legal History” (Page no. 70-76, 359-380), 5 th Edition
(2014)
 V.D. Kulshrestha, “Landmarks in Indian Legal and Constitutional History” (Page no.
97, 125-127, 191-209), 7th Edition (1995)
 Unit III of CBSE web material on Legal Studies

Newspapers:

 Our legal world

 The Hindu

Research Articles:

 Raj Kumari Agrawal, “History of Courts and Legislature” (Page no. 114- 125)
 Verma, S.K., Kusum, “Fifty Years of the Supreme Court of India : Its Grasp and
Reach”

Websites Visited:

 Lawoctopus.com
 Lawescort.com
 Legaleraonline.com
 Legalservicesindia.com
 barcouncilofindia.org
 main.sci.gov.in

Sources of Images Used:

 https://rb.gy/tenihr
 https://rb.gy/miqpsz