April 10, 2021
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Evolution of Supreme Court in India

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Evolution of Supreme Court in India

Author: Stuti Agarwal, School of Law, Christ (Deemed to be University)

  1. Introduction

The idea of dharma or law in ancient India was encouraged by the Vedas which includes various regulations and directives of the management and rites and put together in Dharma Sutras, which were used in various Vedic schools across the country of India. The major content provides the duties of people who are in various phases of their life and also the powers and obligations of the rulers and judicial matters. All these formed the fundamental principles of Hindu Law. Arthashastra of Kautilya, which was written in 300 BC was though the first document that threw light on the theory of jurisprudence, which practically forms part of hands-on governance in India. The transactions between two or more parties or Vivada or disputation are dealt with in the third chapter. It is also called Vyavahara. A number of dharma shastras were evolved during the first seven centuries of the Christian era. These dharma shastras dealt with Manu, Yajnavalkya, Narda and Parashara smritis, etc. in a considerable manner. There was an attempt to transform Islam into a religion of law by the religious leaders in medieval India. But the rulers made the sharia the custodian of justice. Sharia was considered as a court subservient to their crown power. It was necessary for the rulers to follow the sharia, and even history has many cases and examples where the rulers and the King submitted to the Qazi’s decision. There used to be a court called Mazalim (complaints). The rulers used to sit there. As per Ibn Battuta, Muhammad bin Tughalaq who was the ruler of Tughalaq dynasty only used to hear complaints each Monday and Thursday in the court (Mazalim (complaints)). In Sultan’s absence, during the 13th century, Amir-i- dad was the Officer who presided over the secular court. His duty was to draw notice towards the cases which constituted a miscarriage of justice, and it was also his duty to implement Qazi’s decisions in the court. When the members of the public or Qazi’s used to refer disputes to Muftis, they gave expert advice on sharia law and even gave Fatwas (formal legal rulings) on the disputes. Qazi –i- mamalik or Qazi- ul- quzat was the name given to the Chief Judge of the sultanate. The secular judge was called Mir- adl during the Mughal era. He represented the judge on account of the Emperor. It was his sole duty and responsibility to implement Qazi’s decisions, and he was also called to make unprejudiced and individual inquiries. The two officers were appointed by Akbar; the Emperor called Tui-begis. It was their duty to look into obedience to the law and a very affordable amount of money was fixed as their remuneration or fee. The same system, as mentioned above, was followed in India till the country was taken over by the Britishers (England).

2. Acts enacted before the formation of the Supreme Court of India

2.1 The Regulating Act, 1773

  • The principal objective behind enacting the Regulating Act, 1773 was to supervise and govern the work of the East India Company. 
  • The main aim was to revive the financially struggling companies involved in the tea business.
  • As a consequence of the Regulating Act, 1773 the Governor of Bengal was made the Governor-General of Bengal, i.e. Warran Hastings.
  • The Act also led to the establishment of the Supreme Court in Calcutta as the Apex Court in 1774. 
  • It explicitly prohibited the officials from engagement in private trade as well as accepting gifts from Indians. 

2.2 The Pitts Act, 1784

  • The Pitts Act, 1784 was enacted to further extend the control over the workings of the East India Company.
  • There was a separation between the political and sovereign functions of the company. The Court of Directors managed and supervised the commercial activities, whereas the Board of Control managed the affairs of the company.
  • The territories of the Company in India are called ‘British possession in India’.
  • It also resulted in the establishment of the Governor’s Council in Madras as well in Bombay.

2.3 The Charter of 1833

  • The Charter of 1833 is famously known as the ‘Saint Helena Act’. 
  • Lord William Bentinck, the Governor-General of Bengal, was appointed as the Governor-General of India.
  • It was led to the removal of the legislative powers of the Presidencies of Bombay and Madras.
  • This act resulted in ceasing the commercial activities of the companies and transformed it into a purely administrative body. 
  • It also led to the establishment of the Law Commission of India with an aim to codify the rules and laws.

2.4 The Charter of 1853

  • The Charter of 1853 was the last Charter Act that was passed by the East India Company.
  • This act was enacted under the circumstances wherein there was a huge demand for decentralization in India as well as in British. The reason being the vastness of the British Empire in India. 
  • This act led to the separation of the legislative and executive roles of the Governor-General’s Council. 
  • The act did not fix any tenure for the administration of the company in India but rather mentioned that Indian territories would remain under the governance of the company unless otherwise directed by the Parliament.
  • It provided complete access to civil services for the Indians. 
  • The Central Legislative Council permitted four local representations.

2.5 The Government of India Act, 1858

  • This Act ended the company rule in India, and the British possessions in India came directly under the Crown. It provided that India would be governed through the Viceroy in the name of the Crown.
  • Governor-General Lord Canning was designated as the first Viceroy of India. 
  • The powers were passed on to the British Crown as Board of Directors, and the Board of Control was abolished.
  • Office for the Secretary of State was created which consisted of a 15 member Council of India to assist him in his affairs.
  • The primary focus of the act was the administration in India. It is seen as the stepping stone to associate Indians with legislation.
  • The act led to the restoration of legislative powers of Bombay and Madras Precedencies.
  • There were establishments of the legislative council in Bengal, Punjab, and North Western Frontier Province.
  • The Viceroy could issue ordinances during an emergency without the accordance of the legislative council.

2.6 The Indian Councils Act, 1892

  • This act led to the introduction of indirect elections or nominations.
  • There was an increase in the number of non-official members at central and provincial legislative councils.
  • The act provided for the expansion of powers of the legislature as it empowered the members to question the executive as well as discuss the budgetary matters.

2.7 Indian Councils Act, 1909 (Morley-Minto Reforms)

  • It led to the introduction of direct elections to the legislative councils.
  • The strength of the legislative council was increased from 16 to 60.
  • The Central Legislative Council became the Imperial Legislative Council.
  • The act led to the formation of an association of Indians in the executive council of Viceroy and Governors.
  • For the first time, an Indian became a member of the Viceroy’s Executive Council, i.e. Satyendra Sinha as a law member.
  • The act to the introduction of separate electorates for Muslims.

2.8 The Government of India Act, 1919

  • The act to the formation of the bicameral legislature consisted of two houses at the center- The Council of States or the Upper House and the Central Legislative Assembly or the Lower House.
  • There was a demarcation of central and provincial subjects.
  • A system of Diarchy was introduced wherein the Central Subjects were divided into Transferred Subjects and Reserved Subjects. It should be taken into consideration that the legislative Council has no say regarding the reserved subjects.
  • The separate electorate system also included within its ambit the Sikh, Europeans, Anglo Indians, and the Indian Christians.
  • It was this act that resulted in the formation of the statutory committee, which would report the workings of the said act, after a period of ten years.

2.9) Government of India Act, 1935

  • This act led to the separation of powers between the Centre and State. Federal List, Provincial List, and Concurrent list were created.
  • The Diarchy system was completely abolished from the provinces but was introduced at the center.
  •  More autonomy was given to the provinces, and in 6 out of 10 provinces (Bombay, Bihar, Madras, Bengal, Assam and United Province) a system of the bicameral legislature was introduced at a provincial level.
  • This act was the reason why the Reserve Bank of India came into being.
  • The system of separate electorate system expanded its ambit to include women, workers, and depressed classes).
  • Indian Council was abolished, and a Federal Court was established.
  • The ‘Indian Constitution’ replaced the Government of India Act 1935.

2.10 The Indian Independence Act, 1947

  • The Indian Independence Act, 1947 was the act that led to the end of British rule in India. India was declared as the ‘sovereign’ and ‘independent’ nation. This became effective from August 15, 1947.
  • The act led to the partition of India into two dominions which are Pakistan and India.
  • The designation of Viceroy was abolished. The act provided for the appointment of the Governor-General in each dominion.
  • The act vested powers in the Constituent Assemblies of both the dominions to legislate their respective dominions.
  • The act provided that the ‘princely states’ with an option to join either of the two dominions or to remain independent.

3. Privy Council – The Antecessor

The Privy Council, being the highest court of appeal during the British rule, was officially known as the Judicial Committee of the Privy Council. The Privy Council, at its peak, has heard matters and appeals from over 150 colonies and dominions. It is pertinent to note it amounted to 1/5th of the human race.

The Royal Charter of 1726, had vested powers with the apex courts of Madras, Bombay, and Madras (also called the Mayor’s courts) to appeal to the Privy Council (then called the King-in- Council).

The movement of power from the East India Company to the Crown had invited numerous changes. Indian High Courts Act 1861 was introduced by the Crown. It further led to the establishment of High Courts at Lahore, Allahabad, Patna and Nagpur. Additionally, the Supreme Courts established at Bombay, Bengal and Madras were replaced by the High Courts. The aggrieved could appeal from these High Courts to the Privy Council. Privy Council was declared as the ‘court of appeal’.

The Privy Council had contributed immensely towards the solidification of Indian Legal System. This ‘court of appeal’ had consolidated the precedents under the fundamentals of the common law. In the past, the members of the Constituent Assembly had paid homage to the Privy Council on various occasions. The Veteran lawyer and statesman K.M Munshi had described, the role of Privy Council as a ‘great unifying force’.

There are various drawbacks related to the Privy Council. It is often considered as unreachable as it was very costly as well as in terms of location (it sat only in London). The judges in the Privy Council were not very well versed with the socio-cultural setting; the disputes were primarily rooted to the subcontinent. This, in the end, resulted in the establishment of the Federal Court in the first-half of the twentieth century.

4. The Shift from Privy Council to the Supreme Court.

The Privy Council was very expensive as well as inaccessible, so the demand for the establishment of the ‘Federal Court’ started growing. Consequently, there led to the enactment of the Government of India Act 1935, which established the Federal Court. Part Ⅸ of the Act stated that Federal Court would be the court of appeals against all the judgments of the Privy Council. The judgments of the Federal Court would be binding on all the other High Courts.

The Government of India Act 1935 stated that the Federal Legislature could make amendments in order to supplement the powers of the Federal Legislature. This act, in numerous ways, had paved the way for the formation of the Supreme Court. The enactment of the Enlargement of the Jurisdiction Act had abolished appeals from the various High Courts to the Privy Council.

With the enactment of the Abolition of the Privy Council Jurisdiction Act on 24th September 1949, the legacy of the Privy Council was completely abolished. The judgements from the Federal Court could not be appealed to the Privy Council. The last Indian appeal disposed of by the Privy Council was the N.S Krishnaswani Ayyangar V Perumal Goundman (Privy Council Appeal No 11 of 1949).

The Constitution of India finally replaced the Federal Court with the Supreme Court of India. On 26th November 1949, the Constitution of India was ratified. However, it came into force on the 26th of January 1950. The inaugural ceremony of the Supreme Court of India took place on the 28th January 1950, after two days of the Constitution being effective. H.J Kania was the first Chief Justice of India.

5. Conclusion

The Supreme Court, after its inauguration on 28th January, began to sit in a part of the Parliament House. However, the court shifted to the new building (also the present building) in 1958.  The building of the Supreme Court is designed in a manner that highlights the scales of justice.  The Supreme Court is structured into two wings- The East Wing and the West Wing. The Chief Justice’s hall is considered as one of the largest courtrooms with its location being the Centre of the Central Wing.

As per the original Constitution of 1950 in India, the system of justice included a Chief Justice and seven other judges in the Supreme Court of India and it did give powers to the Parliament to increase the number of judges. In the beginning, the Chief Justice of India and all the other judges sat in the Supreme Court to hear the legal cases which came before them. But as the work of the court increased, and the number of cases increased, and arrears began to accumulate, the Parliament passed a law to increase the number of judges from 8 in 1950 to 11 in 1956, 14 in 1960, and 18 in 1978 and 26 in 1986. When the number of judges was increased, they sat in small benches of two or three and used to sit in large benches of five only when they had to settle a dispute or difference of opinion or controversy in the court.

As of now, the Supreme Court of India consists of the Chief Justice of India and 30 other judges, the President of the country appoints. The judge of the Supreme Court retires when he attains the age of 65. The eligibility to become a judge of the Supreme Court includes being a citizen of India, being a judge of High Court of two or more such Courts in succession for at least five years, or an advocate of High Court of two or more such Courts in succession for at least ten years. A person can also be a Supreme Court judge if he is a distinguished or eminent jurist in the judgment of the President of the country. In the Constitution of India, provisions also exist for the appointment of a judge of the High Court to become the ad-hoc judge of the Supreme Court of India and for the retired judges of the High Court or Supreme Court to sit and act as judges of that court. 

To ensure the separation of Supreme Court judges in all the ways possible, the Constitution has created many ways of doing it. Till an order of the President is passed after an address in each house of the Parliament supported by at least two-thirds of the members present and voting and a majority of the total membership of that house and presented to the President of India in the same session for such removal on the basis of proved gross misbehavior or misconduct or incapacity, the Supreme Court judge cannot be removed from his office. Any Supreme Court judge or ex- Supreme Court judge is not allowed to practice in any court of the country or before any authority in the country.

English is the language used for proceedings of the Supreme Court of India. The Supreme Court Rules, 1966, which are framed under article 145 of the Constitution, provide a framework to regulate the procedures and practice of the Supreme Court of India.

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