Origin and Evolution of the Supreme Court of India

The Supreme Court of Judicature at Fort William, Calcutta was founded by an Act of Parliament in 1774. 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. 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 Sadar Adalats in Presidency towns which had acted as the highest court in their respective regions. These new High Courts had the distinction of being the highest Courts for all cases till the creation of 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 appeal against judgements of the High Courts.

The Supreme Court of India came into being on 28 January 1950. 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.

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 Sadar Adalats in Presidency towns which had acted as the highest court in their respective regions. These new High Courts had the distinction of being the highest Courts for all cases till the creation of 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 appeal against judgements of the High Courts.

The Supreme Court of India came into being on 28 January 1950. 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 origin of the idea of the supreme court dates back to Vedic law in ancient India.

History

The concept of Dharma or law in ancient India was inspired by the Vedas which contained rules of conduct and rites and compiled in Dharma Sutras, were practiced in a number of branches of the Vedic schools. Their principal contents address the duties of people at various stages of life, the rights and duties of the kings and juridical matters. These were basis of Hindu Law. The earliest document throwing light on the theory of jurisprudence, which forms part of practical governance, is the Artha Sastra of Kautilya dating back to circa 300 B.C.

 The third chapter deals with Vyavahara i.e. transactions between two or more parties or Vivada or disputation. During the first seven centuries of Christian era, there evolved a number of Dharma sastras which dealt extensively with Manu, Yajnavalkya, Narda and Parashara smiritis etc. In medieval India, the religious leaders endeavoured to transform Islam into a religion of law, but as custodian of justice, the rulers made the Sharia, a court subservient to their sovereign power. Theoretically the rulers had to be obedient to the Sharia and history speaks about certain cases where sovereigns unresistingly submitted to the Qazi’s decision. The rulers sat in a Court known as Mazalim (complaints). According to Ibn Battuta, Muhammad bin Tughalaq, ruler of Tughalaq dynasty, heard complaints each Monday and Thursday. From 13th century onwards, an officer known as Amir-i- dad presided over the secular Court in sultan’s absence. He was also responsible for implementing Qazis’ decisions and for drawing their attention to the cases which constituted miscarriage of justice. The Muftis were the expert on Sharia law and gave Fatwas (formal legal rulings) on disputes referred to them by members of the public or qazis. The Chief Judge of the sultanate was known as the qazi –i- mamalik also known as the qazi- ul- quzat. During Mughals period the secular judge was known as Mir- adl . He acted as a judge on the Emperor’s behalf. He was required to make impartial and personal inquiries. He was also responsible for implementing qazi’s decisions. Emperor Akbar also appointed two officers, called tui-begis, to supervise the adherence to the law and fixed a nominal amount as their fee. The same system was followed till British took over the power of India. The promulgation of Regulating Act of 1773 by the King of England paved the way for establishment of the Supreme Court of Judicature at Calcutta. The Letters of Patent was issued on 26 March 1774 to establish the Supreme Court of Judicature at Calcutta, as a Court of Record, with full power & authority to hear and determine all complaints for any crimes and also to 2 entertain, hear and determine any suits or actions against any of His Majesty’s subjects in Bengal, Bihar and Orissa. The Supreme Courts at Madras and Bombay was established by King George – III on 26 December 1800 and on 8 December 1823 respectively. The India 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 Sadar Adalats in Presidency towns. These High Courts had the distinction of being the highest Courts for all cases till the creation of 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 appeal against Judgements from High Courts. After India attained independence in 1947, the Constitution of India came into being on 26 January 1950. The Supreme Court of India also came into existence and its first sitting was held on 28 January 1950. The law declared by the Supreme Court is binding on all Courts within the territory of India. It has power of judicial review – to strike down the legislative and executive action contrary to the provisions and the scheme of the constitution, the distribution of power between Union and States or inimical to the fundamental rights guaranteed by the Constitution. 3 In formative years, the Apex Court met from 10 to 12 in the morning and then 2 to 4 in the afternoon for 28 days in a year. Today, it has enormous task and meeting for 190 days in a year.

Journey towards preserving democracy

The threat to democracy in India came in form of emergency in the year (1975-1977). The independence of judiciary was severely curtailed during the Indian Emergency  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 emergency. Justices A.N. Ray, P. N. Bhagwati, Y. V. Chandrachud, and M.H. Beg, stated in the majority decision:

(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

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.” 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. 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 the Minerva Mills case (1980).

Through various other important judgments, the supreme court played a very vital role in preserving the democracy and checking the power of legislature.

Conclusion

The societies in the beginning were rudimentary and so were the laws of the societies. Laws have grown with the growth of society. This establishes a relationship between law and society, where law is an instrument of social change, and as Pound would put it law must be stable, but it must not stand still. To comprehend, understand, and appreciate the present legal system adequately, it is necessary to acquire a back-ground knowledge of the course of growth and development of the legal history.

 A peculiar feature of the legal development in India was that for long the government endeavoured to create a system of courts without ever attempting to develop a body of law.  Development of Supreme Court had been a vast and gradual process. From Vedic era to medieval era and then to British era the court has seen various sort of developments. Its role in preserving the democratic values in India has been commendable. The interpretation of the constitution so as to keep the country and its democracy preserve has been the aim of the Supreme Court.

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