India’s transition to a democratic republic led to the creation of what is now known as the Supreme Court today, one of the highest powers to make judicial decisions in India. Any dispute involving the government in India is overlooked by the Supreme Court, as it has the power of jurisdiction in those cases. Although, it was not originally a people’s court, it is slowly transitioning into one that serves in the best interest of the public. In part one of this essay, I will describe the creation and history that lead to the establishment of the Supreme Court of India and the relative structure and autonomy of the court. In part two of this essay, I argue that although the government may not always agree with the decisions that the Supreme Court has made in expanding their rights on religious freedom, however the Supreme Court works in favor of protecting the freedom of religion.
After the British rule in India, there was a large historical impact on the government and legal system. The King of England had created a stepping stone for the Supreme Court in India and helped establish the Supreme Courts in Calcutta, Madras, and Bombay. As a result, India become a sovereign democratic republic. India had finally attained independence in 1947, shortly after becoming a sovereign democratic republic. Which then led to the creation of the Constitution of India.
The Constitution was drafted using other democracies as examples and was created in the hopes to promote social welfare. The Constitution was established and came into full force on the 26th of January in 1950, which was the same day that the Supreme Court came into existence (Supreme Court of India History). The Supreme Court in India imitates the Supreme Court of the United States and is similar in its function. The inauguration of the court was on January 28th and they commenced that the sittings would be in a part of the parliament house.
The relative structure of the Court began with only having 8 judges in 1950, however throughout the years this number has increased drastically. The Supreme Court now encompasses a Chief Justice and 28 judges. They are appointed by the President of India and are almost always seniors sitting from the high courts in India. However, there are certain requirements they have to adhere to before they can be appointed. In order to be eligible to be appointed, an individual must be a citizen of India and must have been: “at least five years, a Judge of a High Court or of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years or he must be, in the opinion of the President, a distinguished jurist” (Supreme Court of India History). As the number of judges increased throughout the years, they began adding more benches.
The Court is set up in a manner in which the judges are seated based upon subject matter, which is appointed by the chief justice. The arrangement of the benches is dependent on whether they are resolving a dispute or controversy. If the matter at hand is not a dispute, then they sit in benches of two or three. If there is a dispute then they sit in benches of five or more when they are required.
When a case or dispute is brought to the court, the Supreme Court is the one that has the ability to state whether it is constitutional or unconstitutional. The process to remove the judges is a lengthy one. The judge in the Supreme Court can only be removed if the president addresses this to each member of the? House of the Parliament and it is supported by the majority. If less than two-thirds of the members vote and present it to the president in the same session on the grounds of misbehavior or they were physically incapable to be a judge, then they will be removed. If they are removed they are prohibited from practicing any type of law in India. The justices are only able to serve until the age of sixty-five. This is specified in the Constitution under article 124 which states that: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the president may deem necessary for the purpose and shall hold office until he attains the age of sixty-five” ("The Constitution of India", 1950). This also portrays the importance and the power that the president is given within the court itself.
The separation of powers within the Supreme Court is somewhat similar to that of the United States. It works in a checks and balances system in order to make sure one branch doesn’t have too much power over the others. However, in the constitution it is stated in article 32 that “parliament may by law empower any other court to exercise within the legal limits of the jurisdiction any of the powers exercisable by the Supreme Court” ("The Constitution of India", 1950). In other words, they are able to give certain powers that the Supreme Court has to other courts when necessary. However, the president is at the head of all decisions that would occur, and if he appoints an order to a certain branch then they are in charge and given the power to make the decisions.
The Supreme Court of India is capable of judicial review. Meaning that they are able to mark the actions of the legislative as unconstitutional based upon what is written in the constitution of India. The Supreme Court, was not known as a people’s court originally since they would not accept cases that were not made by high courts or subordinate courts. However, they have recently began taking cases that are of public interest and are brought by individuals and groups of individuals. Many of the cases that were considered public interest cases have become important “landmark” cases.
An example of this was a case that involved a girl named Mathura who had been taken to the police station after attempting to elope with her boyfriend. As her family waited outside while she was being questioned, the police officers raped her. After taking the issue to the high court, Mathura was blamed for being a liar and was unable to prove whether she had given consent or not. After appealing, the High Court reversed the decision and sentenced the officers to jail time. The Supreme Court then overturned the decision of the High Court. The Supreme Court argued that she had not caused enough commotion during and after the incident and that there was no valid proof that the act was performed without the consent of Mathura. This case caused an immense uproar among the citizens of India. People demanded that the Court needed to take some sort of initiative in creating laws prohibiting rape.
The verdict of this case caused India to enact a new amendment that would assist in amending the rape section of the Indian Penal Code and assist in promoting their anti-rape campaign ("Social Action for Women? Public Interest Litigation in India's Supreme Court", 2002) This was just one case that led to the transformation and creation of various landmark cases. Although, the Supreme Court was not originally meant to give access to the public, it did, however, take cases that were of public interest to change this to an extent. This means that the Supreme Court of India is capable of concrete review by ordinary court as well as concrete review by individuals, only if it is of public interest.
After India’s independence, there had been many questions about where the state stood with religious matters. Whether the state would intervene when it came to religious matters and if there would be a separation between the state and religious institutions. In the Indian Constitution, Article 25 assures that individuals are guaranteed freedom of religion but also asserts that the state is able to intervene in religious institutions. The court has impacted politics due to its expansion of various laws and rights. One of the largest expansions that India has allowed was the freedom of religion. In India, religion is a very important concept to individuals. In the Constitution, it is stated in Article 25 that “subject to public order, morality, and health, all persons are equally entitled to freedom of conscience and the right to freely to profess, practice and propagate religion” ("The Constitution of India", 1950). When the constitution had been created, there had been restrictions that had been written regarding religion and the practice of it. Within the Constitution the state wanted to provide individuals with the right that would encourage more peace and order within the state and individuals. However, if there is any disunity or controversy caused by individuals they are able to fully remove the article. When article 25 was enacted they had specifically made this an anti-conversion law, in order to prohibit forceful conversions and allow people to practice their faith at their own will.
The Supreme Court of India has actively making decisions about cases involving religious freedom. Specifically, a recent case labeled as “Love Jihad” was a controversial one regarding the Supreme Court’s decision favoring the freedom of religion. It was a fairly recent case where a Hindu woman Hadiya had converted to Islam in order to marry her husband. Hadiya, had converted to Islam in January 2016 and this resulted in her father filing a case at the court claiming that the Islamic state was attempting to force this conversion so that she could help them fight Syria or be used as a sex slave. However, Hadiya later married her husband, Shafin Jahan which further caused more issues with her father. Subsequently, the high court had annulled their marriage stating that “a girl aged 24 years is weak and vulnerable, capable of being exploited” ("Couple Can Reunite in ‘Love Jihad’ Case, India’s Supreme Court Rules", 2018) After the high courts’ decision, she was then placed under the custody of her parents and was forcibly converted back to Hinduism. Soon after, Hadiya’s husband Shafin was being investigated by India’s National Investigation Agency, searching for links to radical Islamist groups.
After two years of fighting for her right to stay married with her husband, the Supreme Court made a decision asserting the freedom of religion and the freedom of a citizen to be able to choose who they can marry. However, the Bharatiya Janata Party (BJP) was not very happy about this since Hadiya’s father had filed a complaint stating his daughter was forced to convert. The BJP Party had strictly made anti-conversion laws that were enacted which prohibit the conversion of religion without the consent of the government. This law was enacted in order to prevent any conversion that was “carried out by force, fraud, or other inducements” ("State Anti-Conversion Laws in India", 2018) The decision that was made by the Supreme Court in favor of Hadiya, caused some political controversy. The case itself was labeled “Love Jihad” by right-wing Hindu Nationalists claiming that “India’s minority Muslims will take over the country by persuading Hindu women to marry them and convert to Islam” ("Couple Can Reunite in ‘Love Jihad’ Case, India’s Supreme Court Rules", 2018).
The Supreme Court has been seen actively making many decisions regarding religion that cause a lot of political controversy. Another case that involved the decision of the Supreme Court was the Sabarimala case. Hindu priests had banned women from entering the temple in Kerala. This went against the rules promised to individuals in the constitution such as the freedom of equality (Article 14), Prohibition of discrimination (Article 15) and the freedom of religion (Article 25). In the case, the Hindu priests denied women of menstrual age from entering the temple. This ban has been practiced for many years banning women between the age of 10 and below the age of 50, since it was considered the “menstruating age”. After the ban was held for 27 years, the Supreme Court finally lifted the ban saying that “discrimination of women on any grounds, even religious is unconstitutional” (Taneja, 2018). This case caused a lot of protests among women because they said they were being discriminated against. This case provides a good example how the Supreme Court participates in political matters as well as protects the freedom of religion in India.