Democracy evolves through the guiding presence of an independent and progressive judiciary.
A judiciary undertakes interpretation of the law, clarifying statutes and their meaning to the case at hand (Munroe Eagles, Christopher Holoman, Larry Johnston, 2004).
When meanings clash, courts uphold the framework of basic law and the constitution that prevails in the land. The Supreme Court has helped shape a progressive India.
The Constitution of India does not specifically guarantee the freedom of the press as fundamental right (RK Ramazani, Robert Fatton, 2004). However, the Supreme Court has held this right as implicit in the freedom of speech.
Similarly, the right to travel abroad and the right to privacy have been held to have been spelt out from the expression of ‘personal liberty’ in Article 21 of the Constitution.
More recently, it struck down the ‘draconian provisions’ of Section 66a of the Information Technology Act (widely misused to arrest individuals writing critical comments online) as unconstitutional (Shreya Singhal vs Union of India, 2015) while ruling that the provisions were ‘open ended and unconstitutionally vague’.
The court continues to help push India away from its feudalistic heritage, particularly with regards to women and children. The landmark Sheela Barse vs State of Maharashtra (1983) dealt with the issue of custodial violence against women in prisons, leading to separate police lock-ups for women convicts.
The court directed all states to identify children being forced into labour, particularly in Sivakasi’s firework factories, and came out with schemes for their rehabilitation (MC Mehta vs State of Tamil Nadu, 1996).
In the ABC vs State of NCT (2015) judgment (Justice Vikramajit Sen), the SC held that an unwed mother could apply to become the sole guardian of a child, gaining a birth certificate, without giving any notice to the father of the child or disclosing his identity.
With violence against women rising, the SC has issued a strongly worded judgement that in the case of rape or attempted rape, the concept of compromise or settlement simply does not arise (State of MP vs Madanlal, 2015). It has acted as bulwark against institutional corruption and price-gouging.
In Feb 2012, in two landmark judgements, the SC strengthened the CVC mandate by ruling that any citizen had the right to seek prosecution of any official accused of corruption within a given time-frame. Justices GS Singhvi and Asok Kumar Ganguly stated that ‘copies of reports of the investigation conducted by the CBI and other agencies (in the 2G case) shall be made available to the CVC in sealed envelopes’.
The Coal Scam judgement (ML Sharma vs Principal Secretary, 2013) led to the de-allocation of 214 coal blocks, with their allocation declared ‘illegal and arbitrary’. Another set of PILs, filed separately by Subramanian Swamy and Centre for Public Interest Litigation (Prashant Bushan), challenged the 2008 allocation of 2G spectrum licences.
The court scrapped 122 2G licences, imposing fines and criticised policy decisions taken to use a ‘first come first served’ methodology to allocate natural resources.
In 2013, the SC rejected a patent plea by Novartis AG for cancer drug Glivec, providing massive relief to over 2.8 million cancer patients in India and bolstering the argument for cheaper life-saving drugs.
Equally significant, the court has recognised the right to a negative vote for the electorate, with voters now gaining a ‘none of the above’ option if they don’t feel that any of the candidates deserve a vote.
The court has held that the right to reject a candidate is a fundamental expression of free speech and expression. The apex court continues to push for a fair and sustainable society. It asked the Centre to create a ‘third gender’ status for transgenders while granting them OBC status, instead of forcing them to write male or female against their gender (National Legal Service Authority Vs Union of India, 2014).
Such rulings help shape social mores – IRDA has recently approved LIC’s proposal to include the third gender option in its proposal forms. It has sought to constitutionalise environmental issues, by enforcing directive principals of Article 21, establishing the right to a healthy environment as a citizen’s fundamental right.
It has vociferously defended these rights, issuing notices and directives to various central and state governments while establishing the ‘polluter pays’ principle and the public trust doctrine (Kamal Nath vs MC Mehta).
An order from the Supreme Court helped preserve the Delhi Ridge by declaring it a ‘Reserved Forest’, while similar efforts led to a ban on tourism in core areas of tiger reserves. The apex court continues to champion the use of new tools for the heaving masses to access a fair process and seek justice.
In 1979, the SC, drawn by the efforts of advocate Kapila Hingorani, dealt with newspaper reports that highlighted the plight of Bihar’s undertrial prisoners — many of them had served longer pretrial detention sentence than the period they could have been imprisoned for (Suzanne Sherry, 2013).
Such cases led to the evolution of the Public Interest Litigation (PIL), a ‘strategic arm of the legal aid movement’ (Justice PN Bhagwati, 1982), enabling the disadvantaged and marginalised to gain access to the SC.
This antidote for the ‘excess of democracy’, the apex court retains the power to strike down actions of central and state legislatures that violate the Constitution.
The SC has historically prevented legislative majority rule from sliding into majority tyranny (Suzanne Sherry, 2013). With such progressive judgments, this bulwark of democracy remains a champion of human rights and a symbol of hope for a liberal and tolerant India.