The achievements and failures of the Supreme Court of India of the past fifty-one years

The Twenty First century saw the country faced with several legal problems. Some of them have been created by incorrect interpretation of the Constitution. The question of `Reservation` on the basis of cast or creed is one of them, which has been simmering for long. Another is government subsidy or grants to religious functions like the Haj Subsidy. Another gamut of problems arise out of the government policy regarding education and so called minority institutions out of the control of the government under false notion of `secularism`. The Kashmir problem has defied all solutions till today and is a festering wound in body politic. We do not still have an integrated nationality. The dream of the Constituent Assembly and the Constitution has still to be realized. How could it happen? The articles contained herein examine the vexed questions in the background of the law. Incidentally they have suggested legal solutions to the current burning problems.

The achievements and failures of the Supreme Court of India of the past fifty-one years. It is a collection of articles about some of its landmark judgments. These articles are meant for lawyers, judges and students and teachers of the law faculties, as well as for non-professionals. Often they shed a new light on problems of law and on concepts of jurisprudence and the basic ideas that go to form a just society. Incidentally, they deal with legal problems confronting modern India, of interest not only to persons concerned with law, but also to the general public.

The constitution of India draws extensively from Western legal traditions in its outline of the principles of liberal democracy. It is distinguished from many Western constitutions, however, in its elaboration of principles reflecting the aspirations to end the inequities of traditional social relations and enhance the social welfare of the population. According to constitutional scholar Granville Austin, probably no other nation's constitution "has provided so much impetus toward changing and rebuilding society for the common good." Since its enactment, the constitution has fostered a steady concentration of power in the central government--especially the Office of the Prime Minister. This centralization has occurred in the face of the increasing assertiveness of an array of ethnic and caste groups across Indian society. Increasingly, the government has responded to the resulting tensions by resorting to the formidable array of authoritarian powers provided by the constitution. Together with the public's perception of pervasive corruption among India's politicians, the state's centralization of authority and increasing resort to coercive power have eroded its legitimacy. However, a new assertiveness shown by the Supreme Court and the Election Commission suggests that the remaining checks and balances among the country's political institutions continue to support the resilience of Indian democracy.
Adopted after some two and one-half years of deliberation by the Constituent Assembly that also acted as India's first legislature, the constitution was put into effect on January 26, 1950. Bhimrao Ramji (B.R.) Ambedkar, a Dalit who earned a law degree from Columbia University, chaired the drafting committee of the constitution and shepherded it through Constituent Assembly debates. Supporters of independent India's founding father, Mohandas Karamchand (Mahatma) Gandhi, backed measures that would form a decentralized polity with strong local administration--known as panchayat (pl., panchayats)--in a system known as panchayati raj , that is rule by panchayats . However, the support of more modernist leaders, such as Jawaharlal Nehru, ultimately led to a parliamentary government and a federal system with a strong central government (see Nehru's Legacy, ch. 1). Following a British parliamentary pattern, the constitution embodies the Fundamental Rights, which are similar to the United States Bill of Rights, and a Supreme Court similar to that of the United States. It creates a "sovereign democratic republic" called India, or Bharat (after the legendary king of the Mahabharata ), which "shall be a Union of States." India is a federal system in which residual powers of legislation remain with the central government, similar to that in Canada. The constitution provides detailed lists dividing up powers between central and state governments as in Australia, and it elaborates a set of Directive Principles of State Policy as does the Irish constitution.
The 395 articles and ten appendixes, known as schedules, in the constitution make it one of the longest and most detailed in the world. Schedules can be added to the constitution by amendment. The ten schedules in force cover the designations of the states and union territories; the emoluments for high-level officials; forms of oaths; allocation of the number of seats in the Rajya Sabha (Council of States--the upper house of Parliament) per state or territory; provisions for the administration and control of Scheduled Areas and Scheduled Tribes; provisions for the administration of tribal areas in Assam; the union (meaning central government), state, and concurrent (dual) lists of responsibilities; the official languages; land and tenure reforms; and the association of Sikkim with India.
The Indian constitution is also one of the most frequently amended constitutions in the world. The first amendment came only a year after the adoption of the constitution and instituted numerous minor changes. Many more amendments followed, and through June 1995 the constitution had been amended seventy-seven times, a rate of almost two amendments per year since 1950. Most of the constitution can be amended after a quorum of more than half of the members of each house in Parliament passes an amendment with a two-thirds majority vote. Articles pertaining to the distribution of legislative authority between the central and state governments must also be approved by 50 percent of the state legislatures.