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  • Print publication year: 2020
  • Online publication date: January 2020

12 - The Need for Reinventing the Supreme Court as a Constitutional Court


Under the Indian Constitution, the Supreme Court has been assigned the duty of exercising judicial review as ‘a constitutional safety valve to check uprising against all forms of institutional tyranny and oppression’. This chapter looks at the history of the Supreme Court, and the structure of the Indian judicial system, to argue that the performance of this task has been severely undermined by heavy backlog, transforming the Supreme Court from a constitutional court to a Court of Appeals. For the Supreme Court to reinvent itself as a constitutional court exercising judicial review, there is an urgent need for a creation of an intermediate Court of Appeals.

History of the Supreme Court

The true predecessor of the Supreme Court of India was the Privy Council, the highest Court of Appeals for the colonies and later for the Commonwealth. For territories of the East India Company and later the Crown in India, it exercised appellate functions since 1726, after the mayor's courts (later replaced by the Supreme Courts at Calcutta, Madras, and Bombay) were established. It had appellate jurisdiction over the sadar diwani adalat and the sadar nizamat adalat as well.

Formally called the Judicial Committee of the Privy Council after the Judicial Committee Act of 1833 was enacted, in its 200 years of jurisdiction over British India, it contributed tremendously to the entrenchment of the common law system and the rule of law in India, and in developing fundamental principles of law that are relied upon and followed by the Supreme Court.

Its appellate jurisdiction was extremely limited, and the Privy Council was reluctant to intervene in most of the cases. Civil appeals from India were restricted to suits with a value of at least 10,000 rupees, and in case it was an appeal against concurring judgments of the lower courts, the appeal also had to involve a substantial question of law. Special leave to appeal in criminal cases was also granted sparingly, with the Privy Council making it clear that it was not a Court of Criminal Appeal.

The Government of India Act, 1919, introduced limited self-governance in India. As India slowly marched towards more autonomy, demands of a Supreme Court or a Federal Court in the country were made.

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