University of Washington

The Supreme Court of India: Social Activism Through

McKenzie Templeton
POL S 367: Section AB
5/22/2013

As a nation that has liberated itself from colonial rule and has suffered human rights
violations at the hands of the British, India grants considerable policy-making power, albeit

indirectly, to its Supreme Court, the guardian of fundamental rights. The Court is essentially an
instrument of social activism and the will of the Indian people through a system of concrete
review modeled after the British. It has policy-making powers, as it has proclaimed itself as the
protector of fundamental rights, widely interpreting individual liberties outlined in the
Constitution. The Court continuously resolves legal inequalities between men and women
concerning rape trials, when virtually no legislation has been introduced to eliminate this
discrimination. I argue that the Supreme Court of India derives its power from interpretation of
fundamental rights of the Constitution, as this allows for: social activism through wide access,
dominance over other governmental branches and broad jurisdiction, and independent,
progressive justices. The Courts judicial activism is demonstrated by its dedication to gender
justice and to reforming the criminal justice system in regards to the protection of rape victims
and the sentencing of the perpetrators.
I present the historical context of the Court and explain how the Supreme Court of India
was able to secure its judicial strength and review powers by submitting to other branches of
government. In describing how the Court wields political authority by protecting fundamental
rights, I examine: the Court as it sets legal precedent, access, jurisdiction and influence over
other branches of the Indian government, and the political bias of justices. I explore these factors
with cases relating to rape law in India and examine the extent of the Courts political power in
each case. First, I explain how the Supreme Court of India is able to set precedent by settling
questions of constitutionality and preventing future violation of individual rights with new legal
requirements. Second, I relate access to the caseload of the Supreme Court, observing that wide
access to the Court ensures cases involving inequality or social injustice from marginalized
populations. This allows the Court to defend fundamental rights and behave as activists in

inspiring new legislation for the future protection of these populations. Third, I examine the
power of the Court in relation to the other branches of the Indian government and the effect of its
binding rulings on the lower regional courts. Finally, I study the autonomy of the Supreme Court
justices and their tendency to substitute a strict interpretation of the Constitution with their own
political preferences. I argue that the liberality of the decisions of the justices concerning gender
justice in rape trials has increased with time. I then examine their ability to exercise discretion in
these types of cases.
I. Historical Context
The judicial restraint of the Supreme Court of India in its incipiency is what ultimately
allowed it to consolidate power and become dominant over Indias other branches of
government. After decolonization, the highest courts in India assumed the role of British colonial
powers in interpreting the constitution and overseeing local rules. The judicial infrastructure was
already in place after independence, as the Federal Court of India was established in 1937 and
Sir Maurice Gwyer was inaugurated as Chief Justice of India under the Government of India Act
in 1935 (Anand 2000: 381). Thus, the jurisdiction of the courts was discussed prior to the
emergence of India as a new nation, including its ability to expound and define the provisions of
the Constitutional Act and declare the validity and invalidity of the statues (381).
In the transition from colonization to independence, the Supreme Court took on a
passive role in interpreting the constitution and checking other branches of government, in
spite of its extensive powers and the declared function of the Supreme Court of protecting
fundamental rights (Ginsburg 2003: 97). It was because of this inactiveness that the Supreme
Court of India was not limited in its review, or even dismantled, by the executive. After the
Supreme Court of India was formed in 1950 by the President Prasad, Attorney General Setalvad

and Chief Justice Kania were concerned with the Courts independence and the possibility of the
Supreme Courts overstepping its jurisdiction as a super-legislature or super-executive (Anand
2004: 3). Thus, the Supreme Court restrained itself from challenging the transgressions of the
executive and legislature it its early stages of existence. Indira Gandhis governments attack on
the court exemplifies the limitations that the Supreme Court imposed on itself. When the
government controlled appointment to the Court and restricted its ability to review amendments
for constitutional agreement in the emergency rule of Gandhi in 1975, the Supreme Court
succumbed to its political will (Ginsburg 2003: 97). Yet in what Epp terms as the Courts
second ideological era, the Supreme Court of India attempted to restore its relationship with
the public by committing itself to judicial activism, as well as to equality and due process, after
the abuses of the Emergency powers ended (85). Therefore, the restraint of the Court in its
infancy does not suggest that it is institutionally weak, but that it was strategic in that it was able
to reaffirm its judicial presence and become bolder in limiting the actions of the executive once
Emergency rule had ended.
II. Political Impact of Supreme Court: The Court as Protector of Individual Rights
The Supreme Court of India is able to broadly defend the rights of women in rape cases
and inspire new procedures for ensuring the safety of women, as well as empower the individual
to seek justice, in that the Court defines itself as the guardian of individual rights. Therefore, the
Court is successful in establishing precedent and new legal practices for resolving cases, while
preventing them from arising in the first place. Article 13 declares that laws that are inconsistent
with fundamental rights are void, with the Supreme Court as the interpreter of unconstitutionality
(Indian Constitution, Art 13). This power is granted in Article 32 of the Constitution, which
states that the Supreme Court enforces these rights and may interpret the Constitution in order to

resolve a case containing a question of constitutionality (Art 32). That is to say, unlike in the U.S,
the Indian Constitution explicitly confers the Supreme Court with the power of judicial review.
With this power of interpretation, the Supreme Court is able to expand the meaning of language
of the constitution on a regular basis and achieve certain social goals as an independent body. In
addition, the Supreme Court is at the apex of the judicial hierarchy to which individuals may
appeal to if their case has been wrongly decided.
III. Political Impact of the Supreme Court of India: Access
The Supreme Court has also improved its accessibility for individuals and has created a
constitutional right to legal aid in criminal cases (Epp 1998: 85). This accessibility is
exemplified by the fact that the Supreme Court has discarded its traditional conservative
approach of considering the antecedents of the woman and has moved to grant the complainant
the following: right to representation, right to counseling, and compensation. Article 32 of the
Indian Constitution also provides for public- interest litigation (Indian Constitution, Art 32). This
measure effectively opened standing for individuals or groups bringing cases that would also
concern the rights of the general public, creating a Supreme Court mechanism for social action
and uplifting disadvantaged groups of Indian society (Epp 1998: 86). Moreover, the Supreme
Court effectively offers expansive forms of relief, such as injunctions and orders of payment of
compensation (Templeman 2000: 51). Any social action group or individual with a case
containing a violation of a fundamental right is able to approach the Supreme Court. This open
access inevitably results in a ruling in favor of the Complainant and the creation of new laws or
an expansion of rights, in accordance with the progressive behavior of the Court. Thus, the
Supreme Court of India is a great equalizer, elevating the condition of the groups that are socially
and economically deprived in Indian society.

A judgment in which the Court set a precedent, upheld the rights of the victim, and
ensured the victims access to protection and legal aid was in the landmark case of Delhi
Domestic Working Womens Forum v. the Union of India and others (1993). The case involved
the rape of six women by soldiers traveling by Muri Express (Bhat 2003: 4). The case invoked
Article 32 of the Constitution and resulted in the right of the Complainant in cases of sexual
assault to legal representation and compensation provided by the Criminal Injuries
Compensation Board, considering both the physical and psychological trauma of the victim and
her incurrence of financial difficulties (5). I argue that this judgment had lasting legal effects in
that it established permanent parameters for rape cases while guaranteeing access to legal aid and
financial assistance to virtually all victims of rape, regardless of caste, creed, or even gender.
IV. Political Impact of the Supreme Court: Independence from Governmental Branches
The Supreme Court is at the apex of the Indian judicial system as the interpreter of the
Constitution and the protector of fundamental rights, therefore the Court exerts considerable
control over other branches of government. Article 124 of the Indian Constitution establishes the
Supreme Court while Article 141 assures that the law declared by the Supreme Court shall be
binding on all courts (Indian Constitution, Art 124, 141). The Supreme Court also has the power
to issue directions, orders, or writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari as proclaimed in Article 32 of the Constitution (Indian Constitution, Art
32). This power gives the Supreme Court ample opportunity to expand the scope of fundamental
rights, establishes the jurisdiction of lower courts, and openly allows the Supreme Court to
control of actions of the legislative and executive by examining the constitutionality of
legislative activities. Furthermore, the Supreme Court of India has broad jurisdiction, including:
original jurisdiction over disputes between the government and states; appellate jurisdiction over

criminal and civil cases; advisory jurisdiction over any question of law referred to by the
President; and finally special jurisdiction over any judgment made by an ordinary court or
tribunal (Epp 1998: 82). As a result, the Indian Supreme Court is empowered to make a decision
on any matter related to Indian politics or social climate.
The Supreme Court is essentially the court of last resort and the highest appellate court as
the head of Indias judicial system, compelling inferior courts to conform to its political will and
to its interpretations. There are eighteen High Courts beneath the Supreme Court that are the
apex of each states judicial administration with the power to issue directions, orders, and writs.
Additionally, each state has its own judicial district, civil courts of original jurisdiction, overseen
by a District and Sessions Judge with the power to try all offenses. Finally, below these courts
are courts of civil jurisdiction. (Jurist: University of Pittsburg School of Law). Although the
Indian judicial system seems relatively decentralized, the Supreme Court is still above a
hierarchy of subordinate courts in a single unified system. And although these lower courts are
based regionally, they are bound by the rulings of the Supreme Court and their autonomy is
resultantly restricted.
The Supreme Court also effectively secures its independence from other branches of
government in that it safeguards the Constitution from a Parliament determined to amend it.
Article 368 allows Parliament to amend the Constitution by a Bill that passes with a majority
vote of all members from each House and at least a two-thirds majority of members of the House
that are present and voting (Templeman 2000: 54). This power of the legislature may appear to
surpass that of the Supreme Court, but the Court ultimately decided to limit it. For example, an
amendment cannot interfere with fundamental rights or the structure of the Constitution,
including rule of law, which confers the power of determining the constitutionality of statutes to

the judiciary (54). By ruling on cases that involve the legislatures attempts to override the
review powers of the Court, the Supreme Court has protected its role as the sole interpreter of the
Constitution and preserver of fundamental rights.
The Supreme Court has worked to expand the legal definition of rape, which is binding
on all lower courts, in order to realize gender justice at all levels of sexual harassment. The case
Tukaram v. State of Maharashtra (1979) amended Sec. 375 of the Indian Penal Code, 1860,
which originally stated that only penetration constitutes rape and that a man who has sexual
intercourse with his wife not less than 15 years of age is not rape (Malik 1996: 50). The
definition was expanded by the Court to include circumstances like fraud, misrepresentation, and
intimidation, and Sections 376 A, B, C, D were added to include situations where the female is
rendered helpless and the man is able to take advantage of her position (50). In this instance, the
Supreme Court successfully created a new legal definition for rape and reformed Indian criminal
law in the process. This new definition is also binding on all lower courts, requiring these
regional courts to reexamine cases referred to them pertaining to rape and reevaluate sentences
for the perpetrators in compliance with the Supreme Courts interpretation.
In another case, the Court defined its role in examining the constitutionality of the actions
of its own government and public servants, asserting that those who enforce the law in Indian
society are not above it. The Indian government increasingly relies on its internal forces for
governance, such as the police and the army, and has expanded its security in recent years. The
national and state level police and security forces routinely abuse this power by violating the
rights of women through sexual harassment and abuse as well as through their inaction when
these crimes are reported. It has also been proven that police take women into custody in order to
rape them (Epp 1998: 75). The case State of Maharashtra v. Madhukar Narayan Mandikar

(1990) represents the Supreme Courts judicial force and its ability to establish a binding
standard within Indian courts while sentencing its nations own law enforcement. The defendant
in the case was a police officer who, in uniform, had tried to force a woman of an allegedly easy
virtue to have sex with him. When he was dismissed by the police tribunal, he referred his case
to the High Court, which ruled in his favor. The Government of Maharashtra then referred the
case to the Supreme Court, which reversed the decision of the High Court and upheld
Mandikars complaint (Bhat 2003: 20). This case reveals that the Supreme Court of India is
politically active in that it controls the behaviors of law enforcement in order to protect the
fundamental rights of its populace and diminish the widespread corruption and protection for
perpetrators of sexual harassment and rape crimes within the government.
V. Political Impact of Supreme Court: The Judges
The Justices of the Supreme Court of India are independent from other branches of
government and, as a result, are empowered to base their decisions from their own political
biases and ideas on social liberality. According to Article 124, the President selects twenty-five
Judges after consultation with the judiciary through professional appointment, or the process in
which only one appointing authority is required (Indian Constitution, Art 124). A Supreme Court
Judge must also have served on a High Court of an Indian state. Judges must retire by age sixtyfive, and they can only be removed from office by an order from the President that is passed by a
two-thirds majority of Parliament (Art 124). Furthermore, Article 125 states that Judges have the
security of tenure and are entitled to certain privileges, such as leave of absence and pension.
(Indian Constitution, Art 125). The difficulty of other governmental branches in removing the
Judges of the Supreme Court inevitably results in an increasing amount of decisions based on
individual will and each judges conceptions of social justice.

The tendency of Indian Supreme Court Judges to substitute personal preferences over
strict interpretation of constitutional law is evident in the amount of conflict involved in Supreme
Court decision-making. This conflict is the outcome of three factors: the large caseload of the
Court that reflects wide access, the division of the Court into small panels for deciding cases, and
the relatively short terms served by judges because of fixed retirement ages and appointment at a
late age in a judges career (Epp 1998: 83). All these factors suggest that the Supreme Court of
India is institutionally strong in that decisions are based on practices that ensure a difference of
perspective and comprehensive discussion of the constitutionality of a case. Although the arrival
of decisions by the Supreme Court is inefficient, the decisions themselves are representative of
the Supreme Courts autonomy. This process, and the fact that the decisions are not always
unanimous, reveals that the Court is not constrained by the political will of the executive or the
legislature. Rather, Supreme Court Judges serve as social activists by founding their decisions on
their own liberal attitudes, exposed in their frequent rulings in favor of the individual in cases
concerning fundamental rights and their construction of value-loaded phrases in Articles 19
and 21 of the Indian Constitution (Chakrabarty 2000: 94).
The recent anti-rape laws passed in March of 2013 after the brutal gang-rape of a twentythree year old medical student in New Delhi demonstrate the influence of judges in their ability
to advise the legislature, thereby expanding the policy-making powers of the Indian Supreme
Court. The government organized a panel of former Supreme Court judges called the Justice
Verma Committee, which was responsible for reviewing current laws on violence against
women, as well as for reform recommendation of the Indian Penal Code, 1860 (BBC News, 27
March 2013, p.1). Under the Criminal Law Amendment Bill (2013), the panel of judges
expanded anti-rape law to include stalking, which may lead to sexual assault, violence and

10

disrobing, voyeurism, and that the absence of a physical struggle does not amount to consent.
The new law also encompassed tougher punishments for the perpetrators, increasing the length
of their sentences and introducing the death penalty for the crime. Furthermore, there is
compulsory jail time for police officers and public servants who fail to register a complaint or
who have even committed sexual crimes themselves. In this case, the judges of the Supreme
Court engaged directly in political activity and policy creation after their retirement, implying
that the judges had referred to their personal, preconceived ideas on fundamental rights, as well
as political and social values, during their service. This case also validates that Supreme Court
Judges are also widely recognized as figures that are capable of resolving national social and
political issues while fulfilling public demand.
The Supreme Court of India ultimately serves as a tool for individuals or social action
organizations to demand change within their diverse and highly unequal society. The Court
actively assumes responsibility for protecting the fundamental rights of Indian citizens through
precedent, open access to individuals, supremacy over other branches of government and lower
courts through binding interpretation, and through judges who often perceive themselves as the
defenders of Indias moral fiber and of individual rights. Although the Supreme Court is at the
apex of the judicial hierarchy, it also involves itself in the political realm in limiting the actions
of the executive and legislature, in addition to widely interpreting fundamental rights enshrined
in the Indian Constitution.

Bibliography
-Anand, Adarsh S. Judicial Review in International Perspective. Ed. Mads T. Andenaes and
-Duncan Fairgrieve. Vol. 2. The Hague: Kluwer Law International, 2000. Web.
11

-Bhat, Aparna. Supreme Court on Rape Trials: A Manual of Best Practices of the Supreme Court.
New Delhi: Combat Law Publications, 2003. Print.
-Biswas, Soutik. "Explaining India's New Anti-Rape Laws." BBC 27 Mar. 2013: n. pag. Print.
-Chakrabarty, Manas. Judicial Behaviour and Decision-Making of the Supreme Court of India.
New Delhi: Deep & Deep, 2000. Print.
-Epp, Charles R. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative
Perspective. Chicago: University of Chicago, 1998. Print.
-Ginsburg, Tom. Judicial Review in New Democracies: Constitutional Courts in Asian Cases.
Cambridge, UK: Cambridge UP, 2003. Print.
-"India: Indian Law, Legal Research, Human Rights." JURIST. University of Pittsburgh School
of Law, n.d. Web. 23 May 2013.
-Malik, Sumeet. "New Trends in Rape Law." The Student Advocate 8 (1996): 49-55. HeinOnline.
Web.
-Templeman. Supreme But Not Infallible: Essays in Honor of the Supreme Court of India. Ed.
-B.N. Kirpal and Ashok H. Desai. New Delhi: Oxford UP, 2000. Print.
-Verma, S. P., and A. S. Anand. Indian Judicial System: Need and Directions of Reforms. New
Delhi: Kanishka Distributors, 2004. Print.
Cases Listed
-Delhi Domestic Working Womens Forum v. the Union of India and others, Supreme Court of
India (1993).
-Tukaram v. State of Maharashtra, Supreme Court of India (1979)
-State of Maharashtra v. Madhukar Narayan Mandikar, Supreme Court of India, (1990)

Constitutions
-The Constitution of India, Articles 13, 32, 124, 125, 141
http://www.constitution.org/cons/india/const.html (accessed 13 May 2013)

12