Role Of Supreme Court As A Guardian
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Category: General Law
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ROLE OF SUPREME COURT AS A GUARDIAN
Mohd Shagil Ansari, Aligarh Muslim University, Malappuram Centre Sofiya Naaz, Aligarh Muslim University, Malappuram Centre
INTRODUCTION
“The Supreme Court's only armor is the cloak of public trust; its sole ammunition, the collective hopes of our society”. 1 By virtue of the Regulating Act of 1773, the Supreme court was firstly established in Bengal. To administer the litigant's personal law, the supreme court's jurisdiction was restricted to Calcutta by changes issued in 1781. The supreme court and the Sadar Adalats were combined into three high courts at Bombay, Calcutta, and Madras in 1865. A federal court was established in 1937 as a result of a provision made in the government of India act of 1935. The Supreme Court of India took over the Federal court on January 28, 1950, when India gained independence. The Supreme Court's jurisdiction was broader than the Federal Court that had previously been formed. The Supreme Court serves as the Constitution's final adjudicator and defender.
All Indian courts must abide by the legislation established by the Supreme court has a power of judicial review and judicial activism. WHY THE NEED FOR THE GUARDIAN ARISE?
A man who has promised people employment and a better standard of living during times of extreme crises becomes the Messiah for the People. But after gaining absolute power, he killed and massacred more than six million People for his own hatred and prejudice. The above story is of Hitler of the Nazi regime: "Power tends to corrupt, and absolute power corrupts absolute."2 There are an enormous number of examples where people like Hitler and Napoleon used, misused, and overused the trust of people for their own greed. Aristotle keenly observed human psychology and concluded that if all power goes in a single hand, then there is an absolute possibility that the person will get corrupted. That is why he criticized the concept of 'Philosopher king' given by Plato, he instead empathized "the rule of
1 Irving R. Kaufman
2 Lord Acton
the book". Aristotle believes that "Law must be the final sovereign" but we have seen in the history of the world that even in the rule by the constitution every government tried harder to hijack the independence of judiciary and they got successful too many times in molding the constitution according to their own fiat. To tackle this problem of corruption that aroused out of absolute power, the concept of separation of power comes into the play. The concept of "separation of powers" or "trias politica" was first introduced by Charles de Montesquieu and later adopted by Greece. The Roman Republic extensively utilized this principle in its constitution. The origins of this doctrine can be traced back to Aristotle and Plato, who incorporated it as a fundamental aspect of their philosophical teachings.
3 Separation of powers refers to the distribution of government responsibilities into three branches: legislative, executive, and judicial. According to Article 50, states are obligated to ensure a clear separation between the Judiciary and the Executive. This constitutional distinction prevents any branch of the government from accumulating excessive power. The significance of this principle lies in its emphasis on the need for checks and balances to prevent the misuse of extensive executive authority. Later A. V Dicey developed the principles of 'Rule of law’. The principle of the rule of law aims to prevent the executive from utilizing the laws of the country to suppress or restrict the constitutional freedoms of individuals. Professor A. V. Dicey asserts that the following three principles in order to establish the Rule of law
1. Supremacy of Law
2. Equality before the law
3. Predominance of legal spirit
In the Indian Constitution, the principle of Rule of Law is embraced within the Preamble, which encapsulates the ideals of justice, liberty, and equality. By virtue of these doctrines, the judiciary becomes independent, and only an independent judiciary can act as a guardian. Guardianship and the independence of the judiciary goes hand in hand. The judiciary is responsible for dispensing justice in a fair and impartial manner. An
3 IPLEADERS, https://blog.ipleaders.in/separation-of-powers/ (Last visited on July 8, 2024)
independent judiciary is crucial for safeguarding and upholding fundamental rights, leading to the overall improvement of society. The people of India may lose faith in other organs of the government, but they have a firm belief in the judicial system of the country. Even today, when a dispute arises between people, they say to each other, "See you in court. " Anything can get corrupted, but not the judiciary. 4 THE ATTAINMENT OF IDEAL BALANCE BY THE SUPREME COURT The Supreme Court makes the ideal balance of power by exercising its unique power of Judicial Review. Judicial review is a legal process through which a judge examines the legality of a decision or action taken by a public body. Its origins can be traced back to the landmark U. S. Supreme Court case of 'Marbury v. Madison’5 where the court was empowered to invalidate laws that were incompatible with the constitution.
In India, the power of judicial review is inherent in the higher judiciary and allows for the scrutiny of legislative, executive, and administrative actions of the Parliament and the Legislature. Although the term "judicial review" is not explicitly mentioned in the constitution, it is implied by various articles such as 13, 32, 131, 132, 133, 134, 137, 141, 142, and 144. Judicial review serves two important functions: validating government actions and safeguarding the constitution against any undue encroachments by the government. Through mechanisms like Suo Moto cases and Public Interest Litigation (PIL), where the requirement of Locus Standi (personal interest) has been waived, the judiciary can intervene in public issues even without a complaint from an aggrieved party.
6 The doctrine of Judicial Review is considered a fundamental aspect of the constitution, as established in the case of Indira Gandhi vs Raj Narain7. Landmark cases such as Shankari Prasad v. Union of India,8 Golaknath v. State of Punjab9, and Minerva Mills Case10 have demonstrated the Supreme Court's exercise of judicial review to uphold the rule of law. 4 WRITINGLAW, https://www. writinglaw. com/independence-of-judiciary-in-india/ (last visited on July 8, 2024)
5 5 U.S. (1 Cranch) 137 (1803)
6 DRISHT IAS, https://www.drishtiias.com/daily-news-analysis/judicial-review-1 (Last visited on July 8, 2024)
7 1975 AIR 865
8 1951AIR 458
9 1967 AIR 1643
10 AIR 1980 SC 1789
It is important to note that the power of Judicial Review must be exercised judiciously, as it is a tool for promoting social justice and welfare. Arbitrary use of this power by the courts should be avoided. SUPREME COURT AS A GUARDIAN OF INDIAN CONSTITUTION “A guardian is a person who protects something”. In a legal sense, the supreme court of India has a power and responsibility to act as “watchdog” over the laws made by legislature so that they must not be inconsistent with the very spirit of constitution. Moreover, The Supreme Court is a federal court, the highest court of appeal, the defender of citizens' civil liberties, and the keeper of the Constitution. Its independence is therefore crucial for carrying out the tasks that have been given to it in an efficient manner.
It ought to be unencumbered by the intrusions, demands, and interferences of the executive and the legislative branch. It ought to be permitted to carry out justice without fear or favor. “The Indian constitution includes provisions for the establishment of the Supreme Court in Part V (The Union) and Chapter 6 (The Union Judiciary).
Under Part V, specifically Articles 124 to 147, the constitution addresses the organization, independence, jurisdiction, powers, and procedures of the Supreme Court. According to Article 124(1) of the Indian constitution, the Supreme Court of India consists of the Chief Justice of India (CJI) and, until a larger number is prescribed by Parliament, a maximum of seven other Judges. The jurisdiction of the Supreme Court of India can be broadly classified into original jurisdiction, appellate jurisdiction, and advisory jurisdiction. In addition to these, the Supreme Court possesses various other powers. ”11 What is a Right? A right is something which has a remedy, to be more specific, there can't be any right without the availability of its remedy in case of infringement of that right.
Therefore, the Constitution of India provides a remedy for the infringement of their fundamental rights under Article 32 of the Constitution. An aggrieved party can knock the doors of the Supreme court under Article 32 for the enforcement of his fundamental right. “If I was asked to any particular Article in this Constitution as the most important- an article without which this Constitution would be a nullity- I could not refer to any other Article except 11 DRISHTI IAS, https://www. drishtiias. com/important-institutions/drishti-specials-important-institutionsnational-institutions/supreme-court-of-india (Last visited on July 8, 2024) this one.... It is the very soul of the Constitution and the very heart of it,” 12 The Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of the Supreme Court.
These provisions include regulations on the process of appointing judges, ensuring their secure tenure and stable service conditions. The expenses of the Supreme Court are charged to the consolidated fund. Furthermore, discussions regarding the conduct of judges are restricted, and retired judges are prohibited from practicing law. The Supreme Court possesses the authority to punish for contempt and has the freedom to appoint its staff. Its jurisdiction cannot be restricted, and it remains separate from the Executive branch. 13 CASE LAWS WHERE SUPREME COURT ACTED AS A GUARDIAN There is plethora of case laws where the Supreme Court acts as a guardian and confirms the belief of "The people of India" in an independent and fair judiciary; even the ruling government has faced the music of the law many times.
The cases where the Supreme Court acted as a guardian and protector are as below: Shayara Bano vs Union of India & Others14 Issue Summary: Shayara Bano was divorced by Rizwan Ahmad through the practice of instant triple talaq after 15 years of marriage. A Writ Petition was filed in the Supreme Court to challenge the constitutionality of the Muslim community's practices of polygamy, nikah-halala, and triple talaq. Judgement: Shayara Bano's appeal was supported by the Union of India and women's rights groups such as the Bebaak Collective and the Bhartiya Muslim Mahila Andolan (BMMA). The Supreme Court constituted a constitutional bench of five judges and declared all forms of triple talaq as illegal. Instant triple talaq was deemed unconstitutional, and the practice was banned on August 22, 2017. Offenders could face up to three years of imprisonment. Navtej Singh Johar vs.
Union of India15 Issue Summary: Navtej Johar and other members of the LGBT community petitioned the Supreme Court to strike down Section 377 of the Indian Penal Code, which criminalized same-
12 Dr. B.R. Ambedkar
13 Supra 3
14 2017 9 SCC 1
15 AIR 2018 SC 4321
sex relationships. Judgement: The Supreme Court unanimously struck down Section 377 on September 6, 2018, allowing consenting same-sex relationships. The Court affirmed the right to personal liberty and upheld the fundamental rights of LGBT individuals. However, non-consensual activities and acts involving animals were still considered prohibited under Section 377. Kesavananda Bharati Sripadagalavaru vs. State of Kerala16 Issue Summary: Keshvananda Bharati, the head of Edneer Mutt, filed a case against the Land Reforms Amendment Act of 1969 passed by the Kerala government, which affected his property rights. Judgement: The Supreme Court's 13-judge bench delivered a groundbreaking decision by establishing the doctrine of the basic structure of the Constitution. The Court ruled that while Parliament has the power to amend the Constitution, it cannot abrogate its basic structure.
This case played a crucial role in safeguarding Indian democracy and preserving the essence of the Constitution. Indra Sawhney and Others vs. Union of India & Others17 Issue Summary: Indira Sawhney challenged the Narasimha Rao government's reservation policy, which provided a 10% quota for economically disadvantaged upper caste groups. Judgement: The Supreme Court ruled that reservations based on caste are subject to a 50% cap. The Court upheld reservations for Other Backward Classes (OBCs) in government positions, excluding the creamy layer. It also clarified that promotions would not be subject to reservations under Article 16(4) of the Constitution. The judgement led to the implementation of a 27% reservation for OBCs in the central government. However, the ruling was not consistently followed by subsequent governments, leading to further discussions.
Maneka Gandhi vs Union of India in 197718 Issue Summary: Maneka Gandhi's passport was confiscated by the government, and she filed a petition challenging this action. Judgement: Although the court did not overturn the government's decision, the case set an important precedent for the right to personal liberty under Article 21 of the Constitution. The
16 AIR 1973 SC 1461
17 AIR 1993 SC 477
18 AIR 1978 SC 597
judgement has been cited 215 times in other Supreme Court judgements, symbolizing a shift in legal jurisprudence and the Court's assertiveness in safeguarding fundamental rights. PUTTASWAMYCASE19 As per the Supreme Court, the fundamental right to privacy is recognized and protected under Article 21 and Part III of the Constitution, which guarantees the right to life and personal liberty. ARUNA SHANBAUG CASE20 In the case of Aruna Shanbaug, who remained in a vegetative state for 42 years, the Supreme Court allowed passive euthanasia in specific circumstances, affirming the right to a dignified death. This case prompted changes in India's euthanasia laws. ROMESH THAPAR CASE21 The Supreme Court's ruling in the Romesh Thapar case established that freedom of speech and expression includes the freedom to disseminate ideas, which can only be achieved through circulation.
RECENT CASES Janhit Abhiyan v. Union of India22 The Supreme Court faced a challenge regarding the 103rd Constitutional Amendment Act, which introduced a 10% reservation for the Economic Weaker Section (EWS) within the General Category. The argument made against it was that the amendment violates the Constitution's fundamental right to equality as stated in Article 14 and undermines its basic features. Additionally, critics pointed out that the amendment surpasses the 50% reservation limit established in the Indra Sawhney case. In a split decision of 3:2, the Supreme Court ultimately upheld the constitutionality of the 103rd Amendment and the EWS Reservations. SG Vombatkere vs Union23 The Supreme Court has suspended the colonial sedition law, which is 152 years old, until it is re-evaluated by an appropriate government forum. The Court has directed the Center and states
19 2017 10 SCC 1
20 AIR 2011 SC 1290
21 AIR 1950 SC 124
22 2022 SSC SC 1540
23 2022 WP(C) No.682
not to register any new FIRs invoking this law, as the government is reconsidering it and has not reached a consensus. Budhadev Karmaskar v. State of West Bengal24 In this instance, the highest judicial body acknowledged the status of sex work as an "occupation" and affirmed that sex workers who engage in consensual activities should be granted dignity and equal legal protection. The Court instructed UIDAI to provide sex workers with Adhar Cards by utilizing a prescribed certificate and outlined various measures for their rehabilitation. State of Jharkhand v. Shailendra Kumar Rai25 The ruling of the Supreme Court emphasized that the two-finger test, which lacks scientific validity, should be prohibited from being conducted. The court strongly condemned the test for its foundation on the incorrect notion that sexually active women cannot be victims of rape.
It underlined that dismissing a woman's rape allegation solely on the basis of her sexual history is both patriarchal and discriminatory. X v. Principal Secretary, Health and Family Welfare, Govt of NCT Delhi26 The Supreme Court affirmed that all women have the right to safe and legal abortion. It stated that unmarried women should not be excluded from seeking abortion between 20-24 weeks, as mentioned in Rule 3B of the MTP Rules. Additionally, the Court ruled that marital rape falls under the definition of rape for the purpose of the MTP Rules. Arunachala Gounder v. Ponnusamy27 The Court had to determine the inheritance rights over the self-acquired property of a Hindu male who died intestate before the commencement of the Hindu Succession Act.
After examining ancient texts, commentaries, and judicial precedents, the Court recognized the rights of female heirs, particularly wives and daughters, to inherit self-acquired property or shares from coparcenary property. It affirmed that such rights were acknowledged under customary Hindu Law and judicial pronouncements.
24 2022 SCC 704
25 2022 SCC SC 1494
26 2022 SCC SC 905
27 2022 SC 71
The case Manoj Tibrewal vs. State of Uttar Pradesh & Others (2024)28 The Court criticized the use of property demolitions as a form of punishment, particularly noting that such actions often targeted vulnerable communities. It ruled that such practices, carried out without adhering to proper legal procedures, violated fundamental rights, including the right to life (Article 21) and the right to property (Article 300A) under the Constitution. This landmark ruling reinforces constitutional safeguards against arbitrary executive actions. In the Delhi-NCR Air Pollution Case29, the Supreme Court addressed a public interest litigation concerning hazardous air quality levels in the region. The Court highlighted the government's failure to take adequate measures to curb pollution, identifying this inaction as a breach of the fundamental right to life under Article 21 of the Constitution.
The Court instructed authorities to enforce immediate and robust actions under the Graded Response Action Plan (GRAP), including halting non-essential vehicles and suspending inperson schooling during critical pollution phases. It also directed state governments to take strict actions against stubble burning, which is a major contributor to the pollution crisis.
CONCLUSION
The rule of law requires that the government be subject to the law rather than the law be subject to the government30. We have seen so far that the Supreme Court has protected the constitution and Fundamental rights of individuals from becoming hoaxes. Throughout its history, the Supreme Court has consistently exhibited its commitment to preserving the constitutional values and protecting the rights of citizens. Its pivotal role in interpreting the Constitution, resolving conflicts, and checking the excesses of the executive and legislative branches has cemented its position as the ultimate arbiter of constitutional matters. One of the key strengths of the Supreme Court lies in its power of judicial review, which allows it to examine the constitutionality of laws and governmental actions.
This power acts as a vital safeguard against potential infringements on fundamental rights and liberties, ensuring that the principles of equality, justice, and fairness are upheld. By striking down unconstitutional laws and policies, the Supreme Court serves as a crucial check on the abuse of power and helps
28 (2024 INSC 863)
29 2024
30 Prof. Wade
maintain the delicate balance of powers within the Indian democracy. Moreover, the Supreme Court's independence and impartiality are essential in ensuring the integrity of the judicial process. The appointment of judges through a transparent and meritbased system, coupled with the Court's adherence to due process and fair trial principles, instills public confidence in the judiciary. This trust plays a crucial role in upholding the rule of law and preserving the democratic essence of the country. As a guardian, the Supreme Court has the power and responsibility to establish a state where people have the fear of the law but not the fear of politicians. A check and balance by the judiciary is necessary for a healthy and pure democratic society.