Genesis & the Supreme Court

India’s judiciary is a hybrid: American-style judicial review and constitutional guardianship, a British parliamentary background, federal adjudication, protection of Fundamental Rights and an integrated structure. The Assembly wanted an independent judiciary to enforce rights, protect the Constitution, maintain federal balance and check legislative/executive overreach. Granville Austin noted the focus on tenure, salary, service conditions and appointment methods; the Sapru Committee influenced the design; Alladi Krishnaswamy Ayyar warned that independence should not turn the judiciary into a “super-legislature” or “super-executive”. Judicial independence later became part of the basic structure.

Structure & appointment

The Supreme Court began in 1950, replacing the Federal Court; Chief Justice Harilal Jekisundas Kania was the first CJI. Judges are appointed by the President after consultation; serve till 65; removable only by impeachment for proved misbehaviour or incapacity (the Justice V. Ramaswami attempt showed the difficulty of accountability). Convention: the senior-most judge becomes CJI — breached in 1973 when Justice A.N. Ray was appointed over three senior judges; resignations followed; seniority was later restored.

Jurisdiction: Original — Art 131 (Union–state/inter-state), Art 32 (enforcement of FRs), President/VP election disputes. Appellate — constitutional, civil, criminal; special leave (Art 136). Advisory — Art 143. Review — Art 137. Complete justice — Art 142; in SCBA v. Union of India the Court held Art 142 powers are complementary and not limited by ordinary statutes.

Evolution of the SC as a Constitutional Court

Article 32 is “the very soul of the Constitution and the heart of it.”

B.R. Ambedkar

Five phases — restraint to constitutional court. P1 · Early years — Textual, positivist; Gopalan · Champakam; Shankari Prasad · Sajjan Singh → P2 · Assertion — Golak Nath 1967; Kesavananda 1973; ADM Jabalpur 1976 → P3 · Post-Emergency — Maneka 1978; S.P. Gupta 1981 · PIL → P4 · Appointments — Collegium 1998; NJAC struck 2015 → P5 · Post-2014 — executive strength; suo motu on life, food, health. Kesavananda Bharati (1973): Parliament can amend but cannot destroy the basic structure — C.J. Sikri’s elements: supremacy of the Constitution, republican-democratic government, secular character, separation of powers, federal structure. ADM Jabalpur (1976): upheld suspension of life and liberty during Emergency — the “darkest hour”.

Justice P.N. Bhagwati and Justice V.R. Krishna Iyer shaped activist jurisprudence (PIL areas: bonded labour, prisoners, environment, women, children, dignity, livelihood). P.B. Mehta describes the judiciary as politicised, self-perpetuating and uncertain; Upendra Baxi defends it for protecting the marginalised — the “Chemotherapy of carcinogenic politics of India”; Bhikhu Parekh calls India a case of judicial co-governance. Fali S. Nariman criticises basic structure — guardians of the Constitution may become guardians over the Constitution.

Substantive Due Process · Activism vs Overreach

Substantive due process

Courts examine not only procedure but the substantive fairness of a law (American law uses it for unwritten liberties).

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Article 21 (original text)

Sir B.N. Rau warned that due process could let unelected judges block social and economic legislation. Development: A.K. Gopalan (narrow) → Maneka Gandhi (fair, just, reasonable — opened substantive review) → Selvi and Ramlila Maidan (language close to substantive due process); Rajbala v. Haryana (2015) rejected invalidation merely for arbitrariness/unwisdom; Shaikh Zahid Mukhtar (2016). Abhinav Chandrachud — protection of unenumerated rights reflects substantive-due-process thinking.

Judicial activism

• Active enforcement when the legislature/executive fails — via Arts 32, 226, 136, 141, 142, PIL, expanded Art 21, constitutional morality. Vishaka (1997, harassment) · M.C. Mehta (environment) · Unnikrishnan / Mohini Jain (education) · Olga Tellis (livelihood) · Bandhua Mukti Morcha · Prakash Singh · Common Cause (2018, dignity in death) · Puttaswamy · Navtej Singh Johar · ADR (2024, electoral bonds) · Bilkis Yakub Rasool (2024) · TN v. Governor of TN (2025). Support: Baxi, Krishna Iyer, Bhagwati, Faizan Mustafa, Nariman.

Judicial overreach

• Courts enter legislative/executive domains. Prakash Singh (police) · Godavarman (forests) · Aruna Shanbaug (euthanasia guidelines) · Vishaka (law-like guidelines) · 2G cancellation · Common Cause (NGO directions). Critique: unelected judges decide policy; separation of powers weakens; administrative confusion; lack of expertise. Markandey Katju · Aparna Chandra · R. Shunmugasundaram · Anshita Shrivastava — warns against a super-parliament and super-executive.

The SC as a Forum for Policy Evolution

Channels: PIL, an expansive Art 21, DPSP-based interpretation, structural remedies, continuing mandamus, environmental jurisprudence, rights-based governance. Areas: Environment — M.C. Mehta, Godavarman; Gender — Vishaka → the Sexual Harassment of Women at Workplace Act, 2013; Education — Unnikrishnan, Mohini Jain → RTE; Privacy/Technology — Puttaswamy; Electoral — ADR; Criminal justice — prison conditions, witness protection, remission; Social justice — bonded labour, child rights, dignity, livelihood, shelter.

S.P. Sathe notes the courts shaped environmental and social policy; Granville Austin stresses the constitutional commitment to social justice; B.R. Agarwala recognises the role in criminal-justice reform. The shift from “Supreme Court of India” towards “Supreme Court for India” reflects its public role. Limits: policy needs deliberation; implementation may be weak; judicial capacity is limited; separation of powers must be respected.

Independence, Appointments & the NJAC

Judicial independence underpins the rule of law, FRs, federal balance, checks on the executive/legislature and constitutional supremacy. Granville Austin, B.R. Ambedkar, Nani Palkhivala, Soli Sorabjee and Madhav Khosla defend it. Appointment — evolution: First Judges Case (executive primacy) → Second Judges Case (1993, Collegium) → Third Judges Case (1998, Collegium expanded). Collegium criticism: opacity, nepotism, lack of diversity, no clear criteria, extra-constitutional origin, delay, weak accountability.

“While the genesis of the collegium was seen as an assertion of judicial independence, it has invited several controversies owing to its opaque functioning, questionable choices, and genuine lack of participatory involvement of interested stakeholder.”

Arun Jaitley

CK Faisal argues both executive dominance and judicial primacy go against the grain of constitutionalism — both plagued by extraneous considerations over merit, favouritism, nepotism and opaque procedure. Shriram Panchu calls the Collegium an extra-constitutional body that virtually wrested the appointment power; Manoj Jha argues institutions should reflect caste and community diversity.

99th Amendment & NJAC

The 99th Amendment (2014) introduced the National Judicial Appointments Commission, inserting Arts 124A, 124B, 124C. Composition: CJI (Chairperson), two senior-most SC judges, the Union Law Minister, and two eminent persons chosen by the PM, CJI and Leader of Opposition (one could be from SC/ST/OBC/minorities/women).

For NJAC

• M.P. Singh — institutional reform; executive input aids background checks; speeds appointments; reduces opacity; lay participation as in comparable systems.

Against NJAC

• Fali S. Nariman — executive interference; judicial independence is basic structure; even-numbered body a design flaw; “eminent persons” undefined; risk of political veto.

In the Supreme Court Advocates-on-Record Association case (2015) a five-judge Bench, 4:1, with Justice J.S. Khehar writing the lead opinion, struck down the NJAC and the 99th Amendment, holding judicial independence and separation of powers part of the basic structure. Unresolved: transparency vs independence; accountability vs autonomy; public confidence vs judicial primacy. Reform options: a reconstituted NJAC with a judicial majority; a statutory Collegium with codified criteria; diversity requirements; finalisation of the Memorandum of Procedure.

UPSC 2015 · — — Comment on the 99th Amendment. (2015 marks not stated in source.)

Advisory Jurisdiction · Reforms & Representation

Advisory jurisdiction — Article 143

Origin: Section 213(1), Government of India Act, 1935 — the Federal Court’s advisory function. Art 143(1): the President may refer a question of law or fact of public importance, existing or likely to arise, where it is expedient to obtain the Court’s opinion; the Court may report; the opinion is advisory, not binding, but carries great weight. Art 143(2): disputes excluded from Art 131 by constitutional bar. Examples: Delhi Laws Act Reference (1951, the first, delegated legislation); Kerala Education Bill (1957, minority rights); Keshav Singh’s case (legislative privilege; advisory but weighty). Limits: not a political forum; unsuitable for data-heavy factual disputes; overuse harms the ordinary process; use sparingly.

Judicial reforms & representation

Challenges: large pendency, vacancies, underfunding, appointment delays, an opaque Collegium, weak accountability, corruption allegations, expensive litigation, limited access, post-retirement incentives, executive pressure, a weak district judiciary. Justice Ruma Pal highlighted financial limitations affecting lower courts. The first Rajya Sabha censure of a judge came in 2011, for misappropriation of assets.

“Everything has been said, but since no one listens, we must always begin anew.”

Justice Malimath Committee

Women in the judiciary

“I opened a closed door.”

Fathima Beevi

Women remain under-represented in the higher judiciary. Justice B.V. Nagarathna is in line to become the first woman Chief Justice of India, for a short tenure; a recent CJI supported 50% representation for women judges as a matter of right, not charity. Geeta Pandey noted that women judges disrupt the “old boys’ club”; Gauri Kashyap highlighted severe variation across High Courts.

“1 2 3 4 Yeh Dil Maange More.”

Kiran Suri (on three women appointments)