The PPT is on Supreme Court

1. The Supreme Court of India – Its
Formation

2. Introduction
 During colonial regime, despite Indians in the
government, laws were not responsible to them.
Courts and laws served colonial interests.
 Constituent Assembly – Judiciary – ‘An arm of social
revolution’ – to overcome colonial oppression
 CA consumed considerable time in discussing
(Primary considerations) – (a) Independence of the
courts; (b) powers of supreme Court; and (c) Judicial
review. Uphold the constitution
 CA believed that – for judiciary ‘to remain bright courts
must be above reproach, free from coercion and from
political influence’.

3. Subsidiary Questions before the
CA
 “Should jurisdiction of the Supreme Court be
confined to ‘federal’ issues as had been the case
under the 1935 Act? Or should it have original
and appellate jurisdiction in a wide variety of civil
and criminal matters? Should India have a dual
system of courts, state and federal, as in the
United States? Or should the Constitution retain
the unified structure of High Courts surmounted
by a Federal Court embodied in the 1935 Act?
How centralized should the judiciary be?”

4. Detaching Past
 Did not begin fresh, Britishers established ‘well-
constructed and smoothly functioning judicial
system’ which could be adapted by the CA.
 But adapting the provisions was not a matter of
copying from 1935 Act, “CA had to ask
themselves which of the provisions should be
retained and if retained how they should be
modified and how the jurisdiction and powers of
the courts should be widened to meet the needs
of an independent state.”

5. The Supreme Court
 The first reference to a Supreme Court for India
appears in the Nehru Report 1928. Suggested
changes in the colonial judiciary, in particular to
establish SC with original jurisdiction.
 At that time, Judicial system consisted of inferior
courts and High Courts, of which the High Courts in
Calcutta, Madras and Bombay were the most
important. Appeal from the three courts went to
‘Judicial Committee of the Privy Council in England’.
 Simon Commission to the Joint Parliamentary
Committee rejected the proposal to entrust absolute
authority to the Federal Court (SC), retained the
powers of Privy Council.
 Sapru Committee in 1945 dealt with the shortcoming
of FC, as it did not exercise its Original Jurisdiction.

6. Setting the Agenda
 The Advisory Committee’s Report on Fundamental
Rights – demanded powerful Supreme Court with
absolute to secure FRs effectively.
 Constituted an Ad hoc Committee of 5 members (B N
Rau, Munshi, Ayyar, B L Mitter and S Varadachariar)
to draft the powers of Supreme Court.
 Ad hoc committed in its report bestowed the power of
judicial review to the SC.
 Judicial Review, according to Munshi and Ayyar,
needed to safeguard FRs including to decide the
Constitutionality of the laws – an vital feature of the
Written Constitution.
 The Union Constitution Committee upon receipt of
report retained major suggestions except manner of
choosing the justices.

7. Before the CA
 The judicial provisions of the Draft Constitution
were debated for the several times in 1948.
 Major issues related with the enlargement of
Supreme Courts power to Criminal case, and
nature of judicial review.
 By entrusting wide jurisdictions to the Supreme
Court both in federal matters, original jurisdiction
in FRs – ‘Citadel of Justice’. But CA greatly
‘circumscribed the judiciary’s power of review in
‘Right to Property’ and ‘Personal Liberty’;
obliterated in the Emergency Provisions.
 CA ‘had created an idol and then fettered at least
one of its arms’.

8. A Dictum
 Ayyar mentions – “ While there can be no two
opinions on the need for the maintenance of judicial
independence, both for the safeguarding of individual
liberty and the proper working of the Constitution, it is
also necessary to keep in view one important
principle. The doctrine of independence is not be
raised too the level of a dogma so as to enable the
judiciary to function as a kind of super-Legislature or
super –Executive. The Judiciary is there to interpret
the Constitution or adjudicate upon the rights between
the parties concerned. As has been pointed out
recently in a leading decision of the supreme Court of
the United States the Judiciary as much as the
Congress and the executive is depending for its

9. Securing Independence
 After securing the powers of judiciary, the next
question was how to retain the independence of
the judiciary? How to keep judiciary out of
politics?
 Major considerations for judicial independence in
CA focused on – salary, removal, and tenure
 Draft Constitution – Salaries fixed by the
President in consultation with CJI.
 CJI Kania wrote letter to the Nehru about the
relationship between Executive and Judiciary. On
appointment he recommended no intervention of
the provincial Home Ministry.