Book contents
- Frontmatter
- Contents
- Foreword
- Editors' Note
- Introduction
- 1 The Inadequacy of Judicial Enforcement of Constitutional Rights Provisions to Rectify Economic Inequality, and the Inevitability of the Attempt
- 2 The Interplay of Law and Politics in India
- 3 Beating the Backlog: Reforms in Administration of Justice in India
- 4 Judicial Review: Perspectives and Reflections for the Twenty-First Century
- 5 When ‘Creeping Jurisdiction’ Goes Awry: The Social Action Litigation to Ban Surrogacy
- 6 Judicial Review and the Democratic Judge
- 7 Judicial Review: A Tool to Shape Constitutional Jurisprudence
- 8 The Baxian Bioscope on Indian Judicial Process
- 9 Judicial Activism, Courts, and Constitutional Revolutions: The Israeli Case
- 10 Democracy, Constitution, and Judicial Review: A Critique
- 11 A Minor Jurisprudence of Pathos: Upendra Baxi as Teacher and Writer
- 12 The Need for Reinventing the Supreme Court as a Constitutional Court
- 13 Appointment of ‘Distinguished Jurists’ as Judges in the Supreme Court of India: A Critical Analysis
- 14 Judicial Dissent and Judicial Review: A Functional Analysis
- 15 The Power of Judicial Review: Judicial Chutzpah or Judicial Desideratum
- 16 Judicial Review of Legislations by Tribunals in India: Law, Problems, and Perspectives
- 17 Criminalization of Membership of Terrorist Organizations in India and the United States of America: Human Rights Concerns
- 18 Article 142 of the Indian Constitution: On the Thin Line between Judicial Activism and Restraint
- 19 Sketching the Limits of Article 142 of the Constitution of India: A Constitutional Necessity
- 20 Constitutional Morality and Judges of the Supreme Court
- About the Contributors
- Index
12 - The Need for Reinventing the Supreme Court as a Constitutional Court
Published online by Cambridge University Press: 23 January 2020
- Frontmatter
- Contents
- Foreword
- Editors' Note
- Introduction
- 1 The Inadequacy of Judicial Enforcement of Constitutional Rights Provisions to Rectify Economic Inequality, and the Inevitability of the Attempt
- 2 The Interplay of Law and Politics in India
- 3 Beating the Backlog: Reforms in Administration of Justice in India
- 4 Judicial Review: Perspectives and Reflections for the Twenty-First Century
- 5 When ‘Creeping Jurisdiction’ Goes Awry: The Social Action Litigation to Ban Surrogacy
- 6 Judicial Review and the Democratic Judge
- 7 Judicial Review: A Tool to Shape Constitutional Jurisprudence
- 8 The Baxian Bioscope on Indian Judicial Process
- 9 Judicial Activism, Courts, and Constitutional Revolutions: The Israeli Case
- 10 Democracy, Constitution, and Judicial Review: A Critique
- 11 A Minor Jurisprudence of Pathos: Upendra Baxi as Teacher and Writer
- 12 The Need for Reinventing the Supreme Court as a Constitutional Court
- 13 Appointment of ‘Distinguished Jurists’ as Judges in the Supreme Court of India: A Critical Analysis
- 14 Judicial Dissent and Judicial Review: A Functional Analysis
- 15 The Power of Judicial Review: Judicial Chutzpah or Judicial Desideratum
- 16 Judicial Review of Legislations by Tribunals in India: Law, Problems, and Perspectives
- 17 Criminalization of Membership of Terrorist Organizations in India and the United States of America: Human Rights Concerns
- 18 Article 142 of the Indian Constitution: On the Thin Line between Judicial Activism and Restraint
- 19 Sketching the Limits of Article 142 of the Constitution of India: A Constitutional Necessity
- 20 Constitutional Morality and Judges of the Supreme Court
- About the Contributors
- Index
Summary
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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- Judicial Review , pp. 225 - 235Publisher: Cambridge University PressPrint publication year: 2020