Essay on the Judicial Supremacy of the Supreme Court of India



We have already seen how the Supreme Court is the ultimate interpreter of the Constitution and, as such, its guardian. The authority of the Court is further enhanced by the provision that "the law declared by the Supreme Court shall be binding on all Courts within the territory of India." (Art 141).

Further, in the exercise of its jurisdiction, the Court is authorised to pass appropriate decrees or orders in the interests of complete justice in any case before it. Such decrees and orders are enforceable throughout the territory of India in such manner as may be prescribed by the law of Parliament.

The Supreme Court has also the power to secure the attendance before it of any person within the territory of India or to order the discovery and production of any documents, or the investigation or punishment of any contempt of itself. (Art. 142).

An enumeration of various powers of the Supreme Court will show how impressive and formidable they are. To recount the most important of them: The Court is the ultimate interpreter of the Constitution. As the final interpretational authority of the Constitution, its power embraces not only the interpretation of the Constitution but also that of the laws of the Union, the States and local authorities.

Under its original jurisdiction, it finally settles all disputes between the States and the Union or those between the States themselves. Its appellate jurisdiction embraces not only constitutional but also civil and criminal matters. And through the exercise of its power to grant special leave to appeal, it is competent to review any decision by any Court or Tribunal in the country.

It is also empowered under certain conditions to give advice to the President. The law declared by the Supreme Court is binding on every Court in India. Its orders are enforceable throughout the country and it can order anyone to appear before it or call for any document.

Its decisions can invalidate the laws made by even the highest legislative authority in the land the Parliament of India. Above all, the Court is the protector of the Fundamental Rights guaranteed under the Constitution.

In the exercise of this power it can declare Union or State laws invalid or issue writs or orders to any administrative authority in any part of India with a view to preventing the infringement of any Fundamental Right guaranteed under the Constitution. The combination of such wide and varied powers in the Supreme Court makes it not only the supreme authority in the judicial field but also the guardian of the Constitution, and the laws of the land.

1. In 1991 the President referred to the Supreme Court the dispute between the States of Karnataka and Tamil Nadu over the distribution of the waters of river Kaveri. In 1993 the President referred to the Supreme Court the now famous Ayodhya dispute, whether there existed a temple at the site of the Babri Masjid prior to its construction.

Judicial Activism

Judicial activism has not been a spontaneous development. It is the consequence of a situation which necessitated it. In 1985 the then Chief Justice of India, Justice P.N. Bhagavati converted a letter written to him on a post card by an aggrieved citizen into public interest litigation. That was the beginning of judicial activism.

By the middle of the nineties the Court's role in this field became well understood and widely appreciated. The Court's role in sensitising the Central Intelligence Agencies to discharge their constitutional obligations in the 'hawala' case in which top leaders both in the Government and the Opposition were involved, its various judgements ranging from the need to have a Uniform Civil Code, pollution control, preservation of historical monuments, cleaning and keeping the metropolis more hygienic, directing the eviction of unauthorised occupation of government buildings.

In camera trial of rape victims and award of compensation to them, punishing senior civil servants for contempt and many others have attracted both praise and criticism. Following the example set by the Supreme Court, the High Courts also followed suit. Even a subordinate court took courage to criticize the executive and the legislature.

An additional Sessions Judge of Delhi even went to the extent of calling the Parliament a fish market and members of Parliament an irresponsible, unruly and undisciplined crowd. Although the Delhi High Court later expunged the remarks of the judge, the incident showed the prevailing mood of the judiciary.

In the historic judgment in the Judges' Transfer Case, the Seven-Judge Constitution Bench of the Supreme Court held that any member of the Public even if not directly involved but having "Sufficient interest" can approach the High Court under Article 226 of the Constitution or in case of breach of Fundamental Rights, the Supreme Court for redressal of the grievances of the persons who are not able to move the Court because of "Poverty, helplessness or disability or socially or economically disadvantaged position."

After this judgment it has been open to Public-minded individual citizens or social organisations to seek judicial relief in the interest of the general public.

While some welcomed the infusion of new blood in judicial activity hailing it as a corrective to misuse of power by the executive, others expressed apprehension about the executive and activist role of the judiciary.

The pertinent question is: What should be the proper relationship between the judiciary on the one hand and the executive and the legislature on the other? Dealing with this question, Justice R. Pandiyan, a former judge of the Supreme Court, in a memorial lecture on Judicial Creativity said: In a country like ours more than eighty percent people are emotionally backward and they are subjected to discrimination as a rule.

In such an explosive situation causing adverse effect on society, when the executive and legislature are apathetic and fail to discharge their constitutional duties and deliver the goods, the apex court which is the custodian of citizen's rights and liberties and which in that capacity acts as sentinel on the qui-vive has no other choice but to step in and direct these constitutional functionaries to discharge their obligations.

When the bureaucracy shows a callous indifference and insensitivity to its mandatory duties which affect the basic rights of the people and when the law enforcing agencies exhibit their brutality in the process of implementation of law, should the court remain a passive observer of the scenario?

Will judges of the highest court be justified sitting in an ivory tower like an Olympian closing their eyes to the stress and storm that affects society and remain into cocoons or in isolated and protected cells without giving appropriate mandates and thereby protecting the Fundamental Rights and liberties of the citizens of this country, asks Justice Pandian.

While the judiciary has been supported and even applauded for its role in-judicial activism, there have been voices equally strong in criticising this new trend as a usurpation of power by the judiciary. At the conference of the Presiding Officers of Legislatures (1996) in New Delhi, the Speaker of the Lok Sabha cautioned the Judiciary and appealed for restraint.

There were others Speakers of Legislative Assemblies who felt that the Courts were over-stepping the boundaries of their jurisdiction. Nevertheless it is obvious that unless the Executive and the Legislature begin to respond to the needs of the citizens and discharge their responsibilities, public interest litigation and judicial activism are bound to remain centre-stage as long as courts continue to respond the way they do now.

Speaking on the subject of Social Legitimacy and Institutional Viability, Chief Justice A.M. Ahamadi of the Supreme Court of India said: "To successfully refute the charge of undemocratic conduct and to uphold the legitimacy of judicial review.

The judiciary must strive to maintain the respect it commands amongst the masses for its independence and integrity." Judicial activism within limits is bound to have a salutary effect on all authorities under the Constitution to do what is expected of them.

John Marshall, the Chief Justice of the United States Supreme Court said two centuries ago on the role of the Court: "We must never forget that it is the Constitution that we are expounding intended to endure for ages to come".

And that made the Supreme Court of the United States supreme in due course of time. Our Supreme Court also might aspire to have the same position in the fullness of time.

Nevertheless, neither the Judiciary nor the supporters of its new role of judicial activism should forget that courts are no substitute to the Executive or the Legislature. All the three must play their roles in a manner that will appropriately bring into effect the provisions of the Constitution.

Accountability of Judiciary

Of all the institutions established by the Constitution the higher judiciary seems to have acquitted itself in the last fifty years as the best in a relative sense. The most respected public institution in India is the Supreme Court, respected by the elite and the illiterate alike.

If the Court has become increasingly effective in its role as the final arbiter of justice, it is because of the confidence the common man has placed in it. The Court has no army at its command. It does not hold any purse strings.

Its strength lies largely in the command it has over the hearts and minds of the public and the manner in which it can influence and mould public opinion, as the distinguished French author Alexis de Tocqueville describes, the power wielded by judges is the power of public opinion.

The citizen's disillusionment with almost all our public institutions and functionaries has reached nearly its melting point. In that context, his last hope is the Supreme Court. Hence, it is important that the Court maintains its effectiveness undiminished and reputation unsullied. The challenges before the Court today are many and multifarious.

Perhaps no other apex court in the world has faced such grave challenges before. The great number of cases coming before it and their variety, constitutional, civil, criminal, advisory, special and extraordinary, is itself frightening indeed, the list of subjects is unending. The question is whether there is any subject under the sun which it is not called upon to deal with. A dispute may begin at the village level and ultimately it may end up in the Supreme Court!

Our legal system, adopted largely from the British counterpart is based on written laws and rules. This means normally the result of a dispute should be predictable. A reasonable degree of predictability alone can earn the enduring respect of the common man for the rule of law. "Who will watch the watchman"? Is a big and difficult question to answer?

The least incorrect answer may be "self restraint". Any effort to reduce the degree of judicial uncertainty and unpredictability will certainly be a step forward in making the rule of law real and meaningful. An increase in the degree of predictability of judgement can liberate the judicial system from the growing number of frivolous and chance-taking litigations that are choking it.

While there has been all-around appreciation and even approbation of the splendid work of the Supreme Court, it has not been altogether free from blemish and criticism. Some of the decisions of the Court were subjected to criticism both by lawyers and politicians.

For instance the Court's decision in the hawala case was attacked as an extreme case of judicial usurpation of the functions of the Executive and Parliament. Giving detailed directions on appointment, tenure and termination of posts such as the Director of the CBI, the Central Vigilance Commissioner and constitution of committees have been cited as transgression of the Constitutional scheme of division of powers by the Court.

It has been pointed out that the Court adheres to virtually no rules to control the size and quality of its docket. The procedure for admitting cases depends, it has been alleged, on judicial idiosyncrasy. Thus the writ jurisdiction has become a forum of appeal.

The very special powers of the Supreme Court to accept appeals -special leave petitions have virtually dwarfed the rest of its jurisdiction. The Doctrine of Judicial Restraint seems to have altogether disappeared. Principles of institutional comity between the organs of government have fallen down as lawyers have pressed the judges to claim jurisdiction in more and more areas of governance.

One of the key concepts of the Constitution stipulates that governmental and legislative action should be measured by the test of reasonableness. Yet, the Court has not laid down any authoritative guidance on what reasonableness means other than the altogether undependable formula that it depends on the facts and circumstances of the case.

Similarly, the Court, it is said, in its eagerness to do justice in every matter it considers important, justice is distributed on an adhoc basis that often defies logic and gives rise to suspicion on grounds of inconsistency. In short, the allegation is that the Court is exercising power without accountability and there are no safeguards in the Constitution to make it accountable for its exercise of power.

No doubt the Judiciary has to act as watchdog of public life, as it has to uphold probity in public life, but this can hardly be accomplished if the members of the judiciary themselves do not behave like Caesar's wife.

It is in this context that the demand for judicial reforms assumes special significance. There has been growing discontentment among litigants across the country over the tardy pace and circuitous route to justice. According to one estimate, at the end of 1999 there were over three crores of cases pending in different courts in the country.

Inordinate delay is a characteristic feature of the Indian judicial system. Justice delayed is justice denied, almost every conference of judges or lawyers emphasises this aspect. It has been reported that there are cases which are yet to be settled even after fifty years. Generations have changed in the meantime!

An attorney-General of India observed that the increase of pending cases, multitudes of ill- conceived and ill-drafted laws, frequent adjournment of cases and judicial authoritarianism are the causes impeding the entire judicial process. He has suggested a national judicial commission empowered to act against errant judges.

He was also of the view that provision should be made for adhoc appointment of retired judges at all levels of the judiciary to clear up the backlog of pending cases. Mere increase in the number of judges alone would not improve judicial performance; rather it is important to make the right choices for appointment.

Widespread discussions have been going on in the country for quite some time; both in the government circles and outside, that a National Judicial Commission should be set up for the appointment of judges.

To facilitate the constitution of such a Commission, the Constitution has to be amended (Articles 124, 126, 217, 220 and 221 (1). The basic question, however, is whether such measures would be able to reduce litigation, clear the enormous backlog and help litigants in getting justice.

Indian legal system has several inadequacies. So also the legal education and training of legal professionals. But precious little has been done so far to remove these inadequacies. It is an appropriate time to take necessary measures not only to clear the backlog of pending cases but also to bring about transparency in the appointment of judges and making the judicial system accountable.

The concept of accountability involves not only the method of appointment but also the method of removal for deviant behaviour. In this context the only method available now is impeachment.

But impeachment has lost much of its sanction and sanctity due to the political approach adopted by the ruling Congress Party in the Ramaswamy Case which showed how ineffective the method of impeachment could be.

In a Paper under the title "Who Judges the Judges?" a well known Australian judge, Justice Gordon J. Samuel says (1986) that "Judges ought to be answerable for the way in which they perform their duties is an undeniable proposition which all the judges of the Supreme Court then available explicitly acknowledge in their public statement of 1986. No institutional power in society should be uncontrolled and judges are no exception".

Judiciary cannot be an imperium in imperio. That is why its accountability is important. The performance and discipline of judges and the audit and enquiry in this behalf cannot be ruled out altogether but may be responsibly regulated and reasonably restrained by carefully drawn up procedures.

No democratic institution including the judiciary can be above the rule of accountability in the absence of which there is the possible danger of developing absolutism.

The people of India look upon the Supreme Court as an instrument of social justice and a guarantor of the great ideals enshrined in the Preamble of our Constitution, "Justice, social, economic and political, liberty, equality before law and equal protection of laws".

Misbehaviour by a judge, whether it takes place on the Bench or off the Bench undermines public confidence in the administration of justice and also damages public respect for law and judges. A single dishonest judge not only dishonours himself and disgraces his office but jeopardises the integrity of the entire judicial system.

As the Supreme Court has said in one of its decisions (J.T. 1991 3SC 198) "A Judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature.

The slightest hint of irregularity or impropriety in the court is a cause for great anxiety and alarm. A legislator or administrator may be found guilty of corruption without apparently endangering the foundation of the State. But a judge must keep himself absolutely above suspicion to preserve the impartiality and independence of the judiciary and to have public confidence thereof.

In this connection the demand that every individual judge should publicly disclose his assets every year assumes great importance. As a response to this the Chief justice of India has asked all the judges to submit to him confidentially the assets of each Judge.

But he has declared that he would keep the information confidential. Why should it be kept confidential? The critics ask if officers in other departments of Government do not enjoy such confidentiality, why the Judges alone get that privilege. The question remains unanswered.

If any noble profession has to command the confidence of the community it can only do so by high standards maintained by its members.

It is essential, therefore, that a code of conduct is drawn up and compliance with it monitored if the high esteem of the judiciary is to be protected and maintained. In this connection it is heartening to note that the Supreme Court of India has taken the initiative to adopt a "statement of values of judicial life.'