Supreme Court of India

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Supreme Court of India
Emblem of the Supreme Court of India.svg
Established1 October 1935;83 years ago (1935-10-01)
(as Federal Court of India)
28 January 1950;69 years ago (1950-01-28)
(as Supreme Court of India) [1]
Country India
LocationTilak Marg, New Delhi, Delhi
Coordinates 28°37′20″N77°14′23″E / 28.622237°N 77.239584°E / 28.622237; 77.239584 Coordinates: 28°37′20″N77°14′23″E / 28.622237°N 77.239584°E / 28.622237; 77.239584
Motto यतो धर्मस्ततो जयः॥ (IAST: Yato Dharmastato Jayaḥ)
Where there is righteousness (dharma), there is victory (jayah)
Composition method Collegium of the Supreme Court of India
Authorized by Constitution of India
Judge term lengthMandatory retirement at 65 years of age
No. of positions31 (30+1; sanctioned strength)
27 (26+1; present strength) [2]
Website www.sci.gov.in
Chief Justice of India
Currently Ranjan Gogoi
Since3 October 2018
Lead position ends17 November 2019

The Supreme Court of India is the highest judicial court and the final court of appeal under the Constitution of India, the highest constitutional court, with the power of judicial review. Consisting of the Chief Justice of India and a maximum of 31 judges, it has extensive powers in the form of original, appellate and advisory jurisdictions. [3]

Constitution of India Supreme law of India

The Constitution of India is the supreme law of India. The document lays down the framework demarcating fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental rights, directive principles, and the duties of citizens. It is the longest written constitution of any country on earth. B. R. Ambedkar, chairman of the drafting committee, is widely considered to be its chief architect.

Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.

Chief Justice of India presiding officer of the Supreme Court of India

The Chief Justice of India (CJI) is the head of the judiciary of India and the Supreme Court of India. The CJI also heads their administrative functions.

Contents

As the final court of appeal of the country, it takes up appeals primarily against verdicts of the high courts of various states of the Union and other courts and tribunals. It safeguards fundamental rights of citizens and settles disputes between various government authorities as well as the central government vs state governments or state governments versus another state government in the country. As an advisory court, it hears matters which may specifically be referred to it under the constitution by President of India. It also may take cognisance of matters on its own (or suo moto), without anyone drawing its attention to them. The law declared by the supreme court becomes binding on all courts within India and also by the union and state governments. [4] Per Article 142 of the constitution, it is the duty of the president to enforce the decrees of the supreme court.

An appellate court, commonly called an appeals court, court of appeals, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In most jurisdictions, the court system is divided into at least three levels: the trial court, which initially hears cases and reviews evidence and testimony to determine the facts of the case; at least one intermediate appellate court; and a supreme court which primarily reviews the decisions of the intermediate courts. A jurisdiction's supreme court is that jurisdiction's highest appellate court. Appellate courts nationwide can operate under varying rules.

In law, sua sponte or suo motu describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken without a prior motion or request from the parties. The form nostra sponte is sometimes used by the court itself, when the action is taken by a multi-member court, such as an appellate court, rather than by a single judge. While usually applied to actions of a court, the term may reasonably be applied to actions by government agencies and individuals acting in official capacity.

History

In 1861, the Indian High Courts Act 1861 was enacted to create high courts for various provinces and abolished supreme courts at Calcutta, Madras and Bombay and also the sadr adalats in presidency towns which had acted as the highest courts in their respective regions. These new high courts had the distinction of being the highest courts for all cases till the creation of the Federal Court of India under the Government of India Act 1935. The Federal Court had jurisdiction to solve disputes between provinces and federal states and hear appeals against judgements of the high courts. The first CJI of India was H. J. Kania. [4]

During the tenure of Lord Canning, the Indian High Court Act of 1861 was passed in British Parliament.

The Federal Court of India was a judicial body, established in India in 1937 under the provisions of the Government of India Act 1935, with original, appellate and advisory jurisdiction. It functioned until the Supreme Court of India was established in 1950. Although the seat of the Federal Court was at Delhi, however, a separate Federal Court for Pakistan was established in Pakistan in Karachi after the Partition of India. There was a right of appeal to the Judicial Committee of the Privy Council in London from the Federal Court of India.

Government of India Act 1935 1935 UK parliament act

The Government of India Act 1935 was originally passed in August 1935, and is said to be the longest Act (British) of Parliament ever enacted by that time, surpassed only by the Greater London Authority Act 1999 64 years later. Because of its length, the Act was retroactively split by the Government of India Act, 1935 (Re-printed) into two separate Acts:

  1. The Government of India Act, 1935, having 321 sections and 10 schedules.
  2. The Government of Burma Act, 1935, having 159 sections and 6 schedules.

The Supreme Court of India came into being on 28 January, 1950. [5] It replaced both the Federal Court of India and the Judicial Committee of the Privy Council which were then at the apex of the Indian court system. The first proceedings and inauguration, however, took place on 28 January, 1950 at 9:45 am, when the judges took their seats. Which is thus regarded as the official date of establishment. [6]

Judicial Committee of the Privy Council judicial body in the United Kingdom

The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for certain British territories and Commonwealth countries. Established on 13 August 1833 to hear appeals formerly heard by the King-in-Council, the Privy Council formerly acted as the court of last resort for the entire British Empire, and continues to act as the highest court of appeal for several independent Commonwealth nations, the Crown Dependencies, and the British Overseas Territories.

The Supreme Court initially had its seat at the Chamber of Princes in the parliament building where the previous Federal Court of India sat from 1937 to 1950. The first Chief Justice of India was H. J. Kania. In 1958, the Supreme Court moved to its present premises. [5] Originally, the Constitution of India envisaged a supreme court with a chief justice and seven judges; leaving it to the parliament to increase this number. [7] In formative years, the Supreme Court met from 10 to 12 in the morning and then 2 to 4 in the afternoon for 28 days in a month. [8]

Chamber of Princes

The Chamber of Princes was an institution established in 1920 by a royal proclamation of King-Emperor George V to provide a forum in which the rulers of the princely states of India could voice their needs and aspirations to the colonial government of British India. It survived until the end of the British Raj in 1947.

Parliament of India National bicameral legislature of the Republic of India

The Parliament of India is the supreme legislative body of the Republic of India. It is a bicameral legislature composed of the President of India and the two houses: the Rajya Sabha and the Lok Sabha. The President in his role as head of legislature has full powers to summon and prorogue either house of Parliament or to dissolve Lok Sabha. The president can exercise these powers only upon the advice of the Prime Minister and his Union Council of Ministers.

Court building architecture

Central Wing of the court where the chief justice's courtroom is located Supreme Court of India - Central Wing.jpg
Central Wing of the court where the chief justice's courtroom is located

The building is shaped to symbolize scales of justice with its centre-beam being the Central Wing of the building comprising the chief justice’s court, the largest of the courtrooms, with two court halls on either side. The Right Wing of the structure has the bar – room, the offices of the Attorney General of India and other law officers and the library of the court. The Left Wing has the offices of the court. In all, there are 15 courtrooms in the various wings of the building. [4] [5] [9]

Attorney General of India Indian governments chief legal officer

The Attorney General for India is the Indian government's chief legal advisor, and is primary lawyer in the Supreme Court of India. He can be said to be the lawyer from government's side. He is appointed by the President of India under Article 76(1) of the Constitution and holds office during the pleasure of the President. He must be a person qualified to be appointed as a Judge of the Supreme Court

Left side of the supreme court building Building of The Supreme Court of India.jpg
Left side of the supreme court building

The foundation stone of the supreme court's building was laid on 29 October 1954 by Dr. Rajendra Prasad, the first President of India. The main block of the building has been built on a triangular plot of 17 acres and has been designed in an Indo-British style by the chief architect Ganesh Bhikaji Deolalikar, the first Indian to head the Central Public Works Department. It has a 27.6 m (90 ft 7 in) high dome and a spacious colonnaded verandah. The court moved into the building in 1958. In 1979, two new wings the East Wing and the West Wing were added to the complex. 1994 saw the last extension. [5]

Mother and Child Sculpture

Mother and Child Sculpture Inside the Supreme Court of India. 16.jpg
Mother and Child Sculpture

On 20 February 1980, a black bronze sculpture of 210 cm (6 ft 11 in) height was installed in the lawn of the supreme court. It portrays Mother India in the form of the figure of a lady, sheltering the young Republic of India represented by the symbol of a child, who is upholding the laws of land symbolically shown in the form of an open book. On the book, a balance beam is shown, which represents dispensation of equal justice to all. The sculpture was made by the renowned artist Chintamoni Kar. The sculpture is just behind the statue of Mahatma Gandhi.

Seal

The design of the Court's seal is reproduced from the wheel that appears on the abacus of the Sarnath Lion capital of Asoka with 24 spokes. The inscription in Sanskrit, यतो धर्मस्ततो जयः (IAST: Yato Dharmastato Jayaḥ, means "whence law (dharma), thence victory". It is also referred as the wheel of righteousness, encompassing truth, goodness and equity. [4]

Constitution of the court

Supreme Court building with the sculpture in the foreground Supreme Court of India - Retouched.jpg
Supreme Court building with the sculpture in the foreground

Registry

The registry of the supreme court is headed by the Secretary-General who is assisted by 8 registrars, several additional and deputy registrars, etc., with 1770 employees in all (221 gazetted officers, 805 non-gazetted and 744 Class IV employees) [10] Article 146 of the constitution deals with the appointments of officers and servants of the supreme court registry. [11] [12]

Supreme court advocates

Supreme Court Rules, 2013 entitle only those advocates who are registered with the supreme court, called advocates-on-record to appear, act and plead for a party in the court. [13] Those advocates who are designated as 'senior advocates' by the supreme court or any of the high courts can appear for clients along with an advocate-on-record. Any other advocate can appear for a party along with or under instructions from an advocate-on-record.

Composition

Size of the court

Initially the Constitution of India provided for a supreme court with a chief justice and 7 judges. In the early years, a full bench of the supreme court sat together to hear the cases presented before them. As the work of the court increased and cases began to accumulate, parliament increased the number of judges(including CJI) from the original 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986 and 31 in 2009 (current strength). As the number of the judges has increased, they sit in smaller benches of two or three (referred to as a division bench) [14] —coming together in larger benches of five or more (referred to as a constitution bench) when required to settle fundamental questions of law. A bench may refer a case before it to a larger bench, should the need arise. [15]

Eligibility of a judge of the Supreme Court

A citizen of India not exceeding 65 years age as per Article 124 of the constitution who has been

is eligible to be recommended for appointment, a judge of the supreme court. [16]

Court demographics

I am proud to be an Indian. India is the only country where a member of the minority Parsi community with a population of 1,67,000, like myself, can aspire to attain the post of the Chief Justice of India. These things do not happen in our neighbouring countries.

In practice, judges of the supreme court have been selected so far, mostly from amongst judges of the high courts. Barely seven justices—S. M. Sikri, S. Chandra Roy, Kuldip Singh, Santosh Hegde, R. F. Nariman, U. U. Lalit, L. Nageswara Rao and Indu Malhotra—have been appointed to the supreme court directly from the bar (i.e. who were practising advocates). [19] [20]

The Supreme Court saw its first woman judge when Justice M. Fathima Beevi was sworn into office in 1989. [21] The seventh and the most recent woman judge in the court is Justice Indu Malhotra. [22] [23] In 1968, Justice Mohammad Hidayatullah became the first Muslim Chief Justice of India. In 2000, Justice K. G. Balakrishnan became the first judge from the dalit community. In 2007 he also became the first dalit Chief Justice of India. In 2010, Justice S. H. Kapadia coming from a Parsi minority community became the Chief Justice of India. [17] [24] In 2017, Justice Jagdish Singh Khehar became the first Sikh Chief Justice of India. Indu Malhotra is the first woman justice to be selected directly from the bar.

Judicial independence

The constitution seeks to ensure the independence of supreme court judges in various ways. Per Article 50 of directive principles of state policy, the state shall take steps to separate the judiciary from the executive. Independence of the judiciary, the supremacy of the constitution and rule of law are the features of the basic structure of the constitution. Supreme court and high courts are empowered to frame suo moto cases without receiving the formal petitions/complaints on any suspected injustice including actions/acts indulging in contempt of court and contempt of the constitution by the executive, legislators, citizens, etc. [25] It is considered as one of the most independent court in the whole South East Asia. The main purpose of supreme court is to decide constitutional issues. [26] It is the duty of the judiciary to frame suo moto cases or to probe the cases/petitions at the earliest against the executive or legislature when laws are implemented violating the basic foundation and basic structure of the constitution as the Article 38 (1) of directive principles ensures that the state/judiciary shall strive to promote the welfare of the people by securing a social order in which social, economic and political justice is animated/informed in all institutions of life. [27]

B. R. Ambedkar clarified as given below in the Constituent Assembly debates on Article 38 (1) high lighting its inevitable implementation.

... The word 'strive' which occurs in the Draft Constitution, in judgement, is very important. We have used it because our intention is even when there are circumstances which prevent the Government, or which stand in the way of the Government giving effect to these Directive Principles, they shall, even under hard and unpropitious circumstances, always strive in the fulfilment of these Directives. That is why we have used the word 'strive'. Otherwise, it would be open for any Government to say that the circumstances are so bad, that the finances are so inadequate that we cannot even make an effort in the direction in which the Constitution asks us to go.

Appointments and the Collegium

As per the constitution, as held by the court in the Three Judges Cases – (1982, 1993, 1998), a judge is appointed to the supreme court by the president on the recommendation of the collegium — a closed group of the Chief Justice of India, the four most senior judges of the court and the senior-most judge hailing from the high court of a prospective appointee. [28] This has resulted in a Memorandum of Procedure being followed, for the appointments.

Judges used to be appointed by the president on the advice of the union cabinet. After 1993 (the Second Judges' Case), no minister, or even the executive collectively, can suggest any names to the president, [29] [30] who ultimately decides on appointing them from a list of names recommended only by the collegium of the judiciary. Simultaneously, as held in that judgment, the executive was given the power to reject a recommended name. However, according to some,[ who? ] the executive has not been diligent in using this power to reject the names of bad candidates recommended by the judiciary. [31] [32] [33]

The collegium system has come under a fair amount of criticism. [30] In 2015, the parliament passed a law to replace the collegium with a National Judicial Appointments Commission (NJAC). This was struck down as unconstitutional by the supreme court, in the Fourth Judges' Case, as the new system would undermine the independence of the judiciary. [34] Putting the old system of the collegium back, the court invited suggestions, even from the general public, on how to improve the collegium system, broadly along the lines of setting up an eligibility criteria for appointments, a permanent secretariat to help the collegium sift through material on potential candidates, infusing more transparency into the selection process, grievance redressal and any other suggestion not in these four categories, like transfer of judges. [35] This resulted in the court asking the government and the collegium to finalize the memorandum of procedure incorporating the above. [36]

Once, in 2009, the recommendation for the appointment of a judge of a high court made by the collegium of that court, had come to be challenged in the supreme court. The court held that who could become a judge was a matter of fact, and any person had a right to question it. But who should become a judge was a matter of opinion and could not be questioned. As long as an effective consultation took place within a collegium in arriving at that opinion, the content or material placed before it to form the opinion could not be called for scrutiny in court. [37]

Tenure

Supreme court judges retire at the age of 65. However, there have been suggestions from the judges of the Supreme Court of India to provide for a fixed term for the judges including the Chief Justice of India. [38]

Salary

Article 125 of the Indian constitution leaves it to the Indian parliament to determine the salary, other allowances, leave of absence, pension, etc. of the supreme court judges. However, the parliament cannot alter any of these privileges and rights to the judge's disadvantage after his/her appointment. [39] A judge of the supreme court draws a salary of 250,000 (US$3,500) per month—equivalent to the most-senior civil servant of the Indian government, Cabinet Secretary of India—while the chief justice earns 280,000 (US$3,900) per month. [40]

Oath of affirmation

As Per Article 124 and third Schedule of the constitution, the chief justice (or a judge) of the Supreme Court of India is required to make and subscribe in the presence of the president an oath or affirmation that he/she

will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgement perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.

Removal

Per Article 124(4) of the constitution, President can remove a judge on proved misbehaviour or incapacity when parliament approves with a majority of the total membership of each house in favour of impeachment and not less than two thirds of the members of each house present. For initiating impeachment proceedings against a judge, at least 50 members of Rajya Sabha or 100 members of Lok Sabha shall issue the notice as per Judges (Inquiry) Act,1968. [41] Then a judicial committee would be formed to frame charges against the judge, to conduct the fair trial and to submit its report to parliament. When the judicial committee report finds the judge guilty of misbehaviour or incapacity, further removal proceedings would be taken up by the parliament if the judge is not resigning himself. [42] [43] [44]

The judge upon proven guilty is also liable for punishment as per applicable laws or for contempt of the constitution by breaching the oath under disrespecting constitution [45]

Post-retirement

A Person who has retired as a judge of the supreme court is debarred from practicing in any court of law or before any other authority in India.

Review petition

Article 137 of the Constitution of India lays down provision for the power of the supreme court to review its own judgements. As per this Article, subject to the provisions of any law made by parliament or any rules made under Article 145, the supreme court shall have power to review any judgment pronounced or order made by it. [46]

Under Order XL of the supreme court Rules, that have been framed under its powers under Article 145 of the constitution, the supreme court may review its judgment or order but no application for review is to be entertained in a civil proceeding except on the grounds mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure.

Powers to punish for contempt

Under Articles 129 and 142 of the constitution the supreme court has been vested with power to punish anyone for contempt of any court in India including itself. The supreme court performed an unprecedented action when it directed a sitting minister of state in Maharashtra government, Swaroop Singh Naik, [47] to be jailed for 1-month on a charge of contempt of court on 12 May 2006. [48] [49]

Rules

The Constitution of India under Article 145 empowers the supreme court to frame its own rules for regulating the practice and procedure of the court as and when required (with the approval of the president). Accordingly, "Supreme Court Rules, 1950" were framed. The 1950 Rules were replaced by the Supreme Court Rules, 1966. [50] In 2014, supreme court notified the Supreme Court Rules, 2013 replacing the 1966 Rules effective from 19 August 2015. [13]

Roster system

The supreme court decided to follow a new roster system from 5 February 2018 for allocation of matters to judges. Under the new roster system, the CJI will hear all special leave petitions (SLPs), and matters related to public interest, social justice, elections, arbitration, and criminal matters, among others. The other collegium/senior judges to hear matters related to labour disputes, taxation matters, compensation matters, consumer protection matters, maritime law matters, mortgage matters, personal law matters, family law matters, land acquisition matters, service matters, company matters etc. [51]

Reporting and citation

Supreme Court Reports is the official journal of reportable supreme court decisions. It is published under the authority of the Supreme Court of India by the Controller of Publications, Government of India, Delhi. [52] In addition, there are many other reputed private journals that report supreme court decisions. Some of these other important journals are: SCR (The Supreme Court Reports), SCC (Supreme Court Cases), AIR (All India Reporter), SCALE, etc.

Right to Information

In the year 2010, the supreme court filed an appeal before itself challenging the judgement of the Delhi high court holding that the office of the chief justice of India came under the ambit of the RTI Act and was liable to reveal information under it. [53] Though the supreme court is in favour of bringing CJI office under RTI act, the judgement of the pending case is not yet pronounced. [54] [55]

Facilities in the campus

Legal-aid, [56] [57] [58] court-fee vendors, first-aid post, dental clinic, physiotherapy unit and pathology lab; rail-reservation counter, canteen, post office and a branch and 3 ATMs of UCO Bank, supreme court Museum [10] can be availed by litigants and visitors.

Landmark judgments

Land reform

After some of the courts overturned state laws for redistributing land from zamindar (landlord) estates on the ground that the laws violated the zamindars' fundamental rights, the parliament passed the 1st amendment to the constitution in 1951, followed by the 4th amendment in 1955, to uphold its authority to redistribute land. The supreme court countered these amendments in 1967 when it ruled in Golaknath v. State of Punjab [59] that the parliament did not have the power to abrogate fundamental rights, including the provisions on private property. The 25th amendment to the constitution in 1971 curtailed the right of a citizen to property as a fundamental right and gave authority to the government to infringe private property, which led to a furor amongst the zamindars.

Emergency (1975–1977)

The independence of judiciary was severely curtailed [60] during the Indian Emergency (1975–1977) of Indira Gandhi. The constitutional rights of imprisoned persons were restricted under Preventive detention laws passed by the parliament. In the case of Shiva Kant Shukla (Additional District Magistrate of Jabalpur v. Shiv Kant Shukla), popularly known as the Habeas Corpus case, a bench of five senior-most judges of supreme court ruled in favour of state's right for unrestricted powers of detention during the emergency. Justices A.N. Ray, P. N. Bhagwati, Y. V. Chandrachud, and M.H. Beg, stated in the majority decision: [61]

(under the declaration of emergency) no person has any locus to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention.

The only dissenting opinion was from Justice H. R. Khanna, who stated:

detention without trial is an anathema to all those who love personal liberty... A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed. [61]

It is believed that before delivering his dissenting opinion, Justice Khanna had mentioned to his sister: "I have prepared my judgment, which is going to cost me the Chief Justice-ship of India." [62] In January 1977, Justice Khanna was superseded despite being the most senior judge at the time and thereby Government broke the convention of appointing only the senior most judge to the position of Chief Justice of India. Justice Khanna remains a legendary figure among the legal fraternity in India for this decision.

The New York Times , wrote of this opinion: "The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society; and the Indian supreme court's decision appears close to utter surrender."

During the emergency period, the government also passed the 39th amendment, which sought to limit judicial review for the election of the prime minister; only a body constituted by parliament could review this election. [63] Subsequently, the parliament, with most opposition members in jail during the emergency, passed the 42nd Amendment which prevented any court from reviewing any amendment to the constitution with the exception of procedural issues concerning ratification. A few years after the emergency, however, the supreme court rejected the absoluteness of the 42nd amendment and reaffirmed its power of judicial review in Minerva Mills v. Union of India (1980).

Post-1980: an assertive court

After Indira Gandhi lost elections in 1977, the new government of Morarji Desai, and especially law minister Shanti Bhushan (who had earlier argued for the detenues in the Habeas Corpus case), introduced a number of amendments making it more difficult to declare and sustain an emergency, and reinstated much of the power to the supreme court. It is said that the basic structure doctrine, created in Kesavananda Bharati v. State of Kerala , was strengthened in Indira Gandhi's case and set in stone in Minerva Mills v. Union of India . [64]

The supreme court's creative and expansive interpretations of Article 21 (Life and Personal Liberty), primarily after the Emergency period, have given rise to a new jurisprudence of public interest litigation that has vigorously promoted many important economic and social rights (constitutionally protected but not enforceable) including, but not restricted to, the rights to free education, livelihood, a clean environment, [65] food and many others. Civil and political rights (traditionally protected in the Fundamental Rights chapter of the Indian constitution) have also been expanded and more fiercely protected. These new interpretations have opened the avenue for litigation on a number of important issues.

Recent important cases

Among the important pronouncements of the supreme court post 2000 is the Coelho case I.R. Coelho v. State of Tamil Nadu (Judgment of 11 January 2007). A unanimous bench of 9 judges reaffirmed the basic structure doctrine. It held that a constitutional amendment which entails violation of any fundamental rights which the court regards as forming part of the basic structure of the constitution, then the same can be struck down depending upon its impact and consequences. The judgment clearly imposes further limitations on the constituent power of parliament with respect to the principles underlying certain fundamental rights. The judgment in Coelho has in effect restored the decision in Golak Nath regarding non-amendability of the constitution on account of infraction of fundamental rights, contrary to the judgment in the Kesavananda Bharati case.

Another important decision was of the five-judge bench in Ashoka Kumar Thakur v. Union of India ; where the constitutional validity of Central Educational Institutions (Reservations in Admissions) Act, 2006 was upheld, subject to the "creamy layer" criteria. Importantly, the court refused to follow the 'strict scrutiny' standards of review followed by the United States supreme court. At the same time, the court has applied the strict scrutiny standards in Anuj Garg v. Hotel Association of India [66] (2007) ()a

2G spectrum case

The supreme court declared allotment of spectrum as "unconstitutional and arbitrary" and quashed all the 122 licenses issued in 2008 during tenure of A. Raja (then minister for communications & IT), the main official accused in the 2G case. [67]

Black money

The government refused to disclose details of about 18 Indians holding accounts in LGT Bank, Liechtenstein, evoking a sharp response from a bench comprising justices B Sudershan Reddy and S S Nijjar. The court ordered Special investigation team (SIT) to probe the matter. [68] [69] Lack of enthusiasm made the court create a special investigative team (SIT). [70]

Minority reservations

The supreme court upheld the Andhra Pradesh High Court judgement quashing 4.5% sub-quota for minorities under OBC reservation quota of 27%. [71]

Online/postal ballot for Indian citizen living abroad (NRIs)

Three judge bench presided by chief justice, Justice Altamas Kabir issued notice to the Centre and the Election Commission of India (EC) on the PIL filed by a group of NRIs for online/postal ballot for the Indian citizens living abroad. [72] [73]

T. S. R. Subramanian vs. Union of India

While hearing T.S.R. Subramanian vs Union of India , a division bench of the supreme court ruled that—

These rulings were received mostly positively, and were termed as a 'major reform'. [75] [77] [78] [84] [85]

Recognition of transgender as 'third gender' in law

In April 2014, Justice K. S. Radhakrishnan declared transgender to be the 'third gender' in Indian law, in the case, National Legal Services Authority v. Union of India . [86] [87] [88] The ruling said: [89]

Seldom, our society realises or cares to realise the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society's unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.

Justice Radhakrishnan said that transgender people should be treated consistently with other minorities under the law, enabling them to access jobs, healthcare and education. [90] He framed the issue as one of human rights, saying that, "These TGs, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights", concluding by declaring that: [89]

(1) Hijras, eunuchs, apart from binary gender, be treated as "third gender" for the purpose of safeguarding their rights under Part III of our constitution and the laws made by the parliament and the State Legislature.

(2) Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

Relief to over 35,000 public servants

In B.Prabhakara Rao vs. State of A.P. involved sudden reduction in age of superannuation from 58 years to 55 years of over 35,000 public servants of State Government, public sector undertakings, statutory bodies, educational institutions and Tirupathi-Tirumalai Devasthanams (TTD). They lost first round of litigation in the supreme court. Realising the mistake, fresh legislation was brought restoring the original age of superannuation of 58 years but providing that the benefit of new legislation would not extend to those whose reduction of age of superannuation had been upheld. In challenge to this law, Subodh Markandeya argued that all that was required was to strike down naughty "not" – which found favour with the supreme court bringing relief to over 35,000 public servants.

Decriminalise homosexuality

A five member constitutional bench decriminalised homosexuality by partially striking down the Section 377 of the Indian Penal Code in September 2018. The bench led by Dipak Misra unanimously declared that criminalisation of private consensual sex between adult persons of the same sex under Section 377 of the Indian Penal Code was clearly unconstitutional. The court, however, held that the section would apply to bestiality, sex with minors and non consensual sexual acts. [91]

Criticism

Corruption

The year 2008 saw the supreme court embroiled in several controversies, from serious allegations of corruption at the highest level of the judiciary, [92] expensive private holidays at the tax payers expense, [93] refusal to divulge details of judges' assets to the public, [94] secrecy in the appointments of judges', [95] to refusal to make information public under the Right to Information Act. [96] The chief justice K. G. Balakrishnan invited a lot of criticism for his comments on his post not being that of a public servant, but that of a constitutional authority. [97] He later went back on this stand. [98] The judiciary has come in for serious criticisms from former presidents Pratibha Patil and A. P. J. Abdul Kalam for failure in handling its duties. [99] Former prime minister Manmohan Singh, has stated that corruption is one of the major challenges facing the judiciary, and suggested that there is an urgent need to eradicate this menace. [100]

The Cabinet Secretary of India introduced the judges Inquiry (Amendment) Bill 2008 in parliament for setting up of a panel called the National Judicial Council, headed by the Chief Justice of India, that will probe into allegations of corruption and misconduct by High Court and supreme court judges. [101] [102]

Pending cases

According to supreme court newsletter, there are 58,519 cases pending in the supreme court, out of which 37,385 are pending for more than a year, at the end of 2011. Excluding connected cases, there are still 33,892 pending cases. [103] As per the latest pendency data made available by the supreme court, the total number of pending cases in the supreme court as on 1 November 2017 is 55,259 which includes 32,160 admission matters (miscellaneous) and 23,099 regular hearing matters. [104] In May, 2014, former Chief Justice of India, Justice R.M. Lodha, proposed to make Indian judiciary work throughout the year (instead of the present system of having long vacations, specially in the higher courts) in order to reduce pendency of cases in Indian courts; however, as per this proposal there is not going to be any increase in the number of working days or working hours of any of the judges and it only meant that different judges would be going on vacation during different periods of the year as per their choice; but, the Bar Council of India rejected this proposal mainly because it would have inconvenienced the advocates who would have to work throughout the year. [105] More over, various time frames specified in 'code of civil procedure' are also diluted by supreme court judgements to give the courts right to endlessly adjourn the cases. [106] [107]

Rule of law

Supreme court has not taken up the trail of many pending cases, since April 2014 (more than three years), challenging the validity of the Andhra Pradesh Reorganisation Act, 2014 which was enacted by the parliament without following the stipulated procedure in the constitution and is claimed detrimental to the basic foundation of the constitution on which the basic structure of the constitution is resting. [108] The basic foundation of the constitution is the dignity and the freedom of its citizens which is of supreme importance and can not be destroyed by any legislation of the parliament. Whereas the fair trial to examine the validity of the ninety-ninth constitutional amendment dated 31 December 2014, to form National Judicial Appointments Commission for the purpose of appointing the judges of the supreme court and high courts, was conducted on utmost priority and supreme court delivered its judgement on 16 October 2015 (within a year) quashing the constitutional amendment as unconstitutional and ultra virus stating the said amendment is interfering with the independence of the judiciary. [109] Disposal of the various petitions filed against Andhra Pradesh Reorganisation Act, 2014 is also equally important as it has alienated the basic rights of a vast section of Indian citizens and also against federal character of the constitution which is part of the basic structure of the constitution. Supreme court is also wasting its valuable time by not taking up the case in toto but conducted a piecemeal trail by delivering its judgement to dispose the petitions related with apportionment of assets between the newly formed states Telangana and Andhra Pradesh. [110] Supreme court is also conducting piecemeal trail of the petitions filed by the states regarding water sharing of rivers and bifurcation of the common high court without considering the earlier pending petitions challenging the validity of the Andhra Pradesh Reorganisation Act, 2014 which is the basic cause of all these disputes. [111] [112] Under checks and balances as provided in the constitution, it is the duty of the judiciary/supreme court to establish the rule of law at the earliest by rectifying any misuse of the constitution by the parliament and the executive without colluding with them and to remove perceptions of people that rule of law is side lined and a section of its citizens are subjected to discrimination. [113] [114]

Four judges vs chief justice

On 12 January 2018, four senior judges of the supreme court; Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph addressed a press conference criticizing Chief Justice Dipak Misra's style of administration and the manner in which he allocated cases among judges of the supreme court. However, people close to Misra refuted the allegations that allocation of cases was unfair. [115] On 20 April 2018, seven opposition parties submitted a petition seeking impeachment of Dipak Misra to the Vice President Venkaiah Naidu, with signatures from seventy-one parliamentarians. [116] On 23 April 2018, the petition was rejected by Vice President Venkaiah Naidu, primarily on the basis that the complaints were about administration and not misbehaviour, and that thus impeachment would seriously interfere with the constitutionally protected independence of the judiciary. [117] [118] [119]

Holidays and working hours

The Supreme court works from 10 am to 4:30 pm, but is closed during winter and summer for 2 weeks each. Some critics feel that this delays pending cases. However, in an interview in June 2018 with NDTV, Justice Chelameswar revealed that most Supreme court judges including him work around 14 hours per day, and continue to work for an average of 7 hours per day even during vacations. He further reminded that while the Supreme court of United States delivers judgement on just 120 cases while every judge in the Supreme court of India delivers judgements on 1000-1500 cases per year. [120]

See also

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