Supreme Court of India: Envisaged Role and Actual Working

The Constitution designed the Supreme Court as the interpreter of a written constitution, the final court of appeal for a subcontinent, the umpire of a federation and the enforcer of a bill of rights — then, through Articles 32 and 141, gave it powers no comparable apex court possesses. What it became was not anticipated: an institution that appoints its own judges, supervises administration for years at a stretch, and carries a docket approaching a hundred thousand cases.

The constitutional vision: a court built for a social revolution

The framers did not want a purely juridical court. They had watched the American Supreme Court obstruct the New Deal and the Privy Council behave as a distant imperial arbiter, and they wanted an apex court embedded in the project of transformation rather than standing outside it.

“Judiciary in India will not be a silent spectator rather active participant in India’s social revolution.” — Jawaharlal Nehru

• The judiciary is part of the state for Part IV purposes. Article 36 carries the definition of “the State” in Article 12 into the Directive Principles, which means the courts are themselves addressees of the directives, not merely their adjudicators.
  • The consequence is structural: where the executive and legislature fail to give effect to a directive, the obligation does not evaporate — it lands on the judiciary.
  • Free and compulsory education travelled this route from a directive to a fundamental right through judicial construction before Article 21A and the Right to Education Act, 2009 confirmed it.
  • The right to food was built by the Court out of Article 21 read with Part IV in the long-running food-security litigation, and later given statutory form.
• Article 141 makes the Court a source of law, not merely its expositor. “The law declared by the Supreme Court shall be binding on all courts within the territory of India.”
  • The verb is “declared”, not “interpreted”, and the Court has read it to cover directions filling a legislative vacuum.
  • The clearest instance is Vishaka (1997), where binding guidelines on sexual harassment at the workplace operated as law until Parliament legislated in 2013 — the Court expressly framing them as a stopgap.
• Article 32 makes the remedy itself a fundamental right, which is a design choice with no close parallel — a right to move the apex court directly, unmediated by any lower forum.

“If I was asked to name any particular article in this Constitution as the most important — an article without which this Constitution would be a nullity — I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it.” — B.R. Ambedkar, on Article 32

The five envisaged roles

Envisaged role	Constitutional anchor	What it requires of the Court
Protector of the Constitution	Articles 13, 32, 131, 132, 137	Striking down laws and executive acts that exceed constitutional limits
Guardian of fundamental rights and the rule of law	Articles 32, 21, 14, 226	Acting as a sentinel on the qui vive against arbitrary state power
Federal court	Articles 131, 246, 256, 356	Umpiring Union–state and inter-state disputes as a neutral third party
Active participant in the social revolution	Articles 36, 141, 142	Giving content to Part IV goals the political branches leave unfulfilled
Apex court	Articles 132–136, 145, 146	Final appellate forum and administrative head of an integrated judiciary

• The fifth role is routinely underplayed and is the source of much of the Court’s contemporary difficulty.
  • As the highest court of appeal in an integrated judiciary, the Supreme Court sits above the High Courts and, through them, above the entire district judiciary — a single hierarchy, unlike the American dual-court system.
  • As administrative head, the Court frames its own rules under Article 145, appoints its own officers and servants under Article 146, and — since 1993 — effectively controls appointments to itself and to the High Courts.
  • These two functions pull against each other: the appellate role generates a crushing volume of ordinary litigation, while the constitutional role demands unhurried, collegial, settled deliberation.

Co-governance or sovereignty: what the design implies

• Bhikhu Parekh describes India as a classic case of judicial co-governance — the judiciary is not a check upon governance but a participant in it, exercising functions that in other systems belong to elected organs.
  • The claim is descriptive rather than pejorative: a court operating under Articles 32, 141 and 142 in a system where the other organs underperform will inevitably govern.
• Pratap Bhanu Mehta puts it more sharply as judicial sovereignty — supremacy of the judiciary standing above even the supremacy of the Constitution.
  • In a written-constitution system the constitution is formally supreme, but if “the Constitution is what the judges say it is”, then the practical sovereign is the body that says it.
  • Mehta’s two exhibits are the two places where the Court has gone beyond the constitutional text altogether: the basic structure doctrine, which is not in the document, and the collegium, which is not in the document either.
• The difference between the two formulations matters. Co-governance implies a court sharing power with other institutions; sovereignty implies one that has escaped them.

Composition, strength and organisation (Articles 124–147)

Part V, Chapter IV of the Constitution devotes twenty-four articles to the Union judiciary, and almost every institutional problem the Court now faces can be traced to a choice made in them. The framers left the size of the Court to Parliament, the qualifications broad, the tenure long and the Chief Justiceship unregulated by any rule of selection. Each of those silences has since been filled by practice rather than by law.

Sanctioned strength and its growth

• Article 124(1) fixed the original court at a Chief Justice and not more than seven other judges, leaving Parliament free to increase the number by ordinary law.
  • This is a deliberately flexible design — no constitutional amendment is needed to expand the Court, only a simple majority.
• The sequence of expansions tracks the growth of the docket rather than any theory of the Court’s function.

Year	Sanctioned strength (including CJI)	Trigger
1950	8	Original constitutional figure
1956	11	Rising appellate volume
1960	14	Continued arrears
1978	18	Post-Emergency caseload
1986	26	Expansion of writ and PIL work
2009	31	Docket growth
2019	34	Pendency crossing 60,000
2026	38	Pendency crossing 90,000

• The 2026 increase from 34 to 38 was made first by ordinance in May 2026 and then confirmed by the Supreme Court (Number of Judges) Amendment Act, passed by the Lok Sabha on 3 August 2026 and by the Rajya Sabha shortly after.
  • The stated reason was pendency and efficiency, the same reason given in 2019 — and the sceptical response is the same too, since working strength has consistently lagged sanctioned strength, standing at about 32 judges when the 2026 bill was introduced.
  • Adding judges enlarges the number of two-judge benches, which multiplies the Court’s output but also multiplies the number of voices in which it speaks.

Qualifications, tenure and the Chief Justice

• Article 124(3) prescribes three alternative qualifications: a citizen who has been a High Court judge for five years, or an advocate of a High Court for ten years, or “a distinguished jurist in the opinion of the President”.
  • The distinguished jurist route has never once been used in seventy-six years, which is itself a comment on how narrowly the Court has defined merit — the academy has been excluded entirely.
  • There is no minimum age prescribed and no fixed term; judges hold office until 65 under Article 124(2).
• The Chief Justice of India is appointed by the President, and by unbroken convention since 1977 the senior-most judge is appointed.
  • The convention was broken twice, both times by the executive, and both breaches are treated as the low points of judicial independence in India.
  • The CJI is also the master of the roster — the sole authority to constitute benches and allocate cases, a power the Court has repeatedly affirmed and which is the sharpest live controversy about internal functioning.
  • Justice Surya Kant took oath as the 53rd Chief Justice of India in November 2025, and holds a comparatively long tenure running through 2026 into early 2027 — long enough, unusually, for administrative reform to be attempted.
• Short tenures are structural. Because appointment comes late and retirement is fixed at 65, most judges serve one to six years, and most Chief Justices considerably less.
  • Charles Epp identifies this, together with the fragmentation of the Court into small panels, as a principal cause of incoherence in the Court’s agenda — no judge is present long enough to see a doctrinal line through.

Ad hoc judges, retired judges, seat and benches

• Article 127 permits the CJI, with the President’s consent and after consulting the Chief Justice of the High Court concerned, to appoint a High Court judge as an ad hoc judge of the Supreme Court when there is no quorum.
• Article 128 allows the CJI to request a retired judge of the Supreme Court or a qualified retired High Court judge to sit and act as a judge, with the President’s previous consent and the individual’s consent.
  • Neither provision has been used with any regularity at the Supreme Court, though the parallel provision for High Courts, Article 224A, was revived after the Court’s 2021 directions on High Court arrears.
• Article 130 locates the seat at Delhi, or such other place as the CJI may, with the President’s approval, appoint — a permissive clause that has never been used, and which is the constitutional hook for every proposal for regional benches.
• Article 145(3) requires a minimum of five judges for any case involving a substantial question of law as to the interpretation of the Constitution and for every Article 143 reference.
  • In practice the overwhelming majority of the Court’s work is done by benches of two, which is why the Court is often described as a “polyvocal” institution rather than a single court.

Independence of the judiciary: the guarantees and the record

The Constituent Assembly treated judicial independence as the precondition of everything else the Court was meant to do, and built an unusually dense set of protections. Almost every one of them has held formally while being eroded at the edges by practice — which is the general shape of the design-versus-working story.

Safeguard	Provision	Actual record
Security of tenure	Article 124(2), removal only under 124(4)	Formally intact; no judge has ever been removed
Charged salaries	Articles 125, 146(3) — charged on the Consolidated Fund, not votable	Held; but judicial budgets overall remain a fraction of a per cent of public spending
Salaries not variable to disadvantage	Article 125 proviso	Held, except during a financial emergency under Article 360
No legislative discussion of conduct	Articles 121 and 211	Held, except on a removal motion
Bar on practice after retirement	Article 124(7)	Held in letter; post-retirement appointments hollow it out in substance
Contempt power	Article 129 — Court of Record	Held, and criticised as a shield against criticism
Control over staff and rules	Articles 145, 146	Held
Separation from the executive	Article 50 (Directive Principle)	Achieved in the criminal courts; unsettled at the level of appointments
Jurisdiction cannot be curtailed	Article 138 read with basic structure	Reinforced by L. Chandra Kumar (1997) on judicial review as basic structure

• The removal procedure is deliberately near-impossible. Under Article 124(4) a judge may be removed only by an order of the President following an address by each House, supported by a majority of the total membership of that House and by not less than two-thirds of the members present and voting, on the ground of proved misbehaviour or incapacity.
  • The Judges (Inquiry) Act, 1968 supplies the machinery: a motion signed by 100 members of the Lok Sabha or 50 of the Rajya Sabha, admitted by the Speaker or Chairman, followed by a three-member committee — a Supreme Court judge, a High Court Chief Justice and a distinguished jurist — which must find the charge proved before the motion may be moved.
  • The word “proved” is what makes the procedure judicial rather than political, and it is also what makes it slow.
• The soft pressures are where independence is actually tested.
  • Post-retirement appointments — governorships, tribunal chairmanships, commissions of inquiry, Rajya Sabha nominations — create an incentive structure operating on serving judges. The First Law Commission flagged this as early as the 1950s.
  • Delay in acting on collegium recommendations functions as a veto by inaction, since the government need not refuse a name, only sit on it.
  • Transfers of High Court judges were used punitively during the Emergency and remain a sensitive instrument.

The Constitution armoured the judiciary against every form of pressure it could imagine, and left untouched the two that have actually mattered: what a judge does after 65, and how long a file may sit on a minister’s desk.

The jurisdictions in full

The Court’s jurisdictions were designed as separate compartments, each with its own gate and its own gatekeeper. In working practice they have merged into a single wide entrance, because one of them — special leave — has no gate at all. Setting them out precisely is therefore not a formality: the distinctions carry the whole explanation of why the Court is simultaneously the most powerful and the most overloaded apex court in the world.

Original jurisdiction — Article 131

• Article 131 gives the Court exclusive original jurisdiction over federal disputes: between the Union and one or more states, between the Union and any state on one side and one or more states on the other, and between two or more states.
  • The dispute must involve a question of law or fact on which the existence or extent of a legal right depends — a political grievance is not enough.
  • The jurisdiction is exclusive: no other court may entertain such a suit.
• What Article 131 excludes is as important as what it includes.
  • The proviso excludes disputes arising out of any treaty, agreement, covenant, engagement, sanad or similar instrument entered into before the commencement of the Constitution and still in operation.
  • Article 262 empowers Parliament to bar all courts, including the Supreme Court, from inter-state river water disputes, and Parliament did exactly that in the Inter-State River Water Disputes Act, 1956.
  • Matters referred to the Finance Commission and disputes falling to the Inter-State Council under Article 263 are outside it in practice.
  • Ordinary private-party disputes cannot be routed through Article 131 by dressing a state up as plaintiff.
• The unresolved question: may a state challenge the constitutionality of a central law under Article 131?
  • In State of Madhya Pradesh v. Union of India (2011) a two-judge bench held that Article 131 was not the appropriate forum for such a challenge, and that the proper route was Article 32 or Article 226.
  • In State of Jharkhand v. State of Bihar (2014) another two-judge bench recorded its inability to agree, holding that the plain words of Article 131 cover any dispute between governments involving a legal right, constitutionality included, and referred the conflict to a larger bench.
  • The reference has never been resolved, and it now blocks two politically significant suits — Kerala’s Article 131 suit against the Citizenship (Amendment) Act and Chhattisgarh’s suit against the National Investigation Agency Act.
  • The stake is real: if states may sue the Union directly over central legislation, Article 131 becomes a standing federal remedy; if not, a state must litigate as an ordinary petitioner.

Writ jurisdiction — Article 32, and how it differs from Article 226

• Article 32(1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of fundamental rights, and 32(2) empowers the Court to issue directions, orders or writs — habeas corpus, mandamus, prohibition, certiorari and quo warranto.
  • The remedy is itself a fundamental right, so the Court cannot decline to entertain a genuine Article 32 petition on grounds of convenience.
  • It may be suspended only under Article 359 during a proclaimed Emergency — the provision at the centre of the Court’s worst hour.
• The contrast with the High Courts’ power is a standard confusion and worth stating precisely.

Dimension	Article 32 (Supreme Court)	Article 226 (High Courts)
Purpose	Only enforcement of fundamental rights	Fundamental rights and “for any other purpose” — ordinary legal rights too
Nature	A fundamental right in itself	A constitutional power, not a right of the citizen
Discretion	Court cannot ordinarily refuse	Discretionary
Territorial reach	All-India	Within territorial jurisdiction, or where the cause of action arises
Suspension	Suspendable under Article 359	Not suspendable in the same manner
Scope	Narrower in subject matter	Wider in subject matter, plus superintendence under Article 227

• The frequent error is to assume Article 32 is the wider power because it belongs to the higher court. Article 226 is wider in what it can be used for; Article 32 is stronger in what it guarantees.
• L. Chandra Kumar (1997) held that the power of judicial review vested in the High Courts under Article 226/227 and in the Supreme Court under Article 32 is part of the basic structure and cannot be excluded — which is why tribunal decisions remain reviewable.

Appellate jurisdiction — Articles 132 to 135

• Article 132 — constitutional appeals. An appeal lies from any judgment of a High Court, in civil, criminal or other proceedings, if the High Court certifies under Article 134A that the case involves a substantial question of law as to the interpretation of the Constitution.
• Article 133 — civil appeals. Requires a High Court certificate that the case involves a substantial question of law of general importance which in the High Court’s opinion needs to be decided by the Supreme Court.
• Article 134 — criminal appeals. Lies as of right in three situations: where the High Court has reversed an acquittal and imposed a death sentence; where it has withdrawn a case from a subordinate court and imposed a death sentence; and where it certifies the case fit for appeal.
  • Parliament may enlarge this jurisdiction by law, and did so through the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, which extends the right of appeal to reversals of acquittal resulting in life imprisonment or ten years’ imprisonment.
• Article 134A requires the High Court to consider the question of a certificate on its own motion or on oral application immediately after judgment — a 1972 addition designed to reduce delay.
• Article 135 transferred to the Supreme Court the jurisdiction and powers exercisable by the Federal Court under any pre-Constitution law, so that no forum gap opened at the transition.

Special leave — Article 136, the engine of the docket

• Article 136(1): the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed by any court or tribunal in the territory of India.
  • The only textual exclusion is 136(2) — courts or tribunals constituted under any law relating to the Armed Forces.
  • There is no certificate requirement, no subject-matter limitation, no minimum value, and no bar on the type of proceeding. It is the widest discretionary appellate power vested in any apex court anywhere.
• The Court’s own early position was that the power would be used sparingly. In Pritam Singh (1950) it held that special leave would be granted only in exceptional circumstances where a substantial question of law or grave injustice arose.
  • That restraint has not survived. Special leave petitions now constitute the overwhelming bulk of the Court’s filings, and the “exceptional circumstances” test operates as a formula rather than a filter.
  • Attempts to lay down binding guidelines for the exercise of Article 136 — most notably a two-judge attempt in 2010 — have been resisted precisely because the Court is unwilling to fetter a discretion it regards as constitutionally unfettered.
• The consequence is the central institutional fact about the Court. Because it cannot control its own docket the way the United States Supreme Court can through certiorari, it hears the ordinary appeals of the whole country.
  • Pendency stood at 95,718 cases on 1 August 2026, up from about 90,000 when the current Chief Justice took office, with 7,440 fresh filings against 6,303 disposals in July 2026 alone.
  • Twenty-nine Constitution Bench matters were pending in early 2026 — the cases the Court exists to decide, waiting behind the cases it chose to take.

The widest appellate power in the world has produced the least constitutional court in the world: an apex tribunal too busy hearing appeals to answer the questions only it can answer.

Advisory jurisdiction — Article 143

• Article 143(1) allows the President, where it appears that a question of law or fact has arisen or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court, to refer it, and the Court may report its opinion.
• Article 143(2) deals with disputes arising out of any pre-Constitution treaty, agreement, covenant, engagement, sanad or similar instrument — the category excluded from Article 131 by its proviso. Here the Court shall report its opinion.
• Four features define the jurisdiction’s nature.
  • It is discretionary on both sides under 143(1): the President may refer but need not, and the Court may decline to answer and has done so.
  • It is obligatory under 143(2), where the word is “shall” — the only limb on which the Court has no choice.
  • The opinion is not binding on the President and is not a judgment, so it creates no res judicata; but it carries very great persuasive authority and is invariably acted upon.
  • It is heard by a bench of not fewer than five judges under Article 145(3), and it cannot be used to reopen a matter the Court has already decided — a point the Court made emphatically in the Cauvery reference (1992).

The reference history

Reference	Year	Subject and outcome
In re Delhi Laws Act	1951	Delegated legislation — permissible, but essential legislative functions cannot be delegated
Kerala Education Bill	1958	Minority educational rights under Article 30; regulation permissible, control not
Berubari Union	1960	Cession of territory requires a constitutional amendment, not executive action — produced the Ninth Amendment
Keshav Singh / UP Assembly	1964	Relationship between legislative privileges and fundamental rights; courts not ousted
Sea Customs Act	1963	Article 289 immunity of state property from Union taxation — confined to direct taxes on property and income
Presidential Poll	1974	Presidential election may proceed despite vacancies in state assemblies
Special Courts Bill	1978	Bill establishing courts for Emergency-era offences held broadly valid
Cauvery Water Disputes Tribunal	1992	Karnataka’s ordinance nullifying the Tribunal’s interim order held unconstitutional
Ayodhya (Special Reference No. 1)	1993	The Court declined to answer
Third Judges Case	1998	Reshaped the collegium — CJI plus four senior-most judges
Gujarat Assembly election	2002	Article 174 and the Election Commission’s power to fix poll dates
Punjab Termination of Agreements Act	2004, answered 2016	The Act unilaterally terminating water-sharing agreements held unconstitutional
Natural resources / 2G spectrum	2012	Auction is not the only constitutionally permissible method of allocating natural resources
Assent, withholding and reservation of Bills	2025	Answered 20 November 2025 — see below

• The Ayodhya reference of 1993 is the single best illustration of the jurisdiction’s discretionary character. The President asked whether a Hindu temple or structure had existed at the disputed site before the mosque was built.
  • The Court declined to answer, holding the question superfluous, unnecessary and opposed to secularism, and returned the reference unanswered.
  • It thereby established that Article 143(1) confers a power the Court may refuse to exercise, and that it will refuse where the reference is an attempt to obtain a political settlement in judicial dress.
• The Court has similarly returned other references unanswered, or declined to entertain them where the matter was already sub judice, notably declining to allow the advisory route to be used as a mechanism of appeal against its own decisions.

The 2025 Presidential Reference on assent

This is the most consequential use of Article 143 in a generation, and it turned the advisory jurisdiction from a curiosity into a live instrument of constitutional revision.

• The background was State of Tamil Nadu v. Governor of Tamil Nadu (April 2025), in which a two-judge bench held that a Governor could not indefinitely withhold action on bills, prescribed outer timelines for action under Articles 200 and 201, and treated ten bills as having received “deemed assent”.
• President Droupadi Murmu referred fourteen questions to the Supreme Court under Article 143(1), covering the Governor’s options under Article 200, whether the Governor is bound by ministerial advice, the justiciability of gubernatorial discretion, Article 361 immunity, whether courts may prescribe timelines, and the parallel questions about the President under Article 201.
• A five-judge Constitution Bench headed by Chief Justice B.R. Gavai delivered the opinion on 20 November 2025, and its holdings run against the earlier judgment.
  • Courts cannot prescribe timelines for the exercise of powers under Articles 200 and 201 — that is a matter for the constitutional text, which supplies none.
  • There is no doctrine of “deemed assent” in Indian constitutional law, and Article 142 cannot be used to manufacture one, because one constitutional authority cannot substitute itself for another.
  • Decisions under Articles 200 and 201 are not ordinarily justiciable before enactment, but courts may intervene where there is prolonged, unexplained and indefinite inaction amounting to constitutional deadlock.
  • Two of the fourteen questions were left unanswered, and the opinion is, as always, non-binding.
• Three lessons follow for the jurisdiction itself.
  • An advisory opinion has now been used to displace the reasoning of a prior judgment, which unsettles the comfortable proposition that Article 143 creates no precedent — an opinion of five judges will in practice be followed over a judgment of two.
  • The executive has learned that Article 143 is available as a route to revisit an adverse constitutional ruling without a review or curative petition.
  • The Court’s own limits on Article 142 were tightened by its own hand, which is unusual and significant.

Complete justice — Article 142

• Article 142(1) empowers the Court to pass “such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it”, enforceable throughout India.
  • Article 142(2) supplies ancillary powers over attendance of persons, discovery of documents and punishment for contempt.
• The uses have been extraordinary in range.
  • The Bhopal gas disaster settlement, 1989 was crafted and enforced under Article 142.
  • Ayodhya (2019) used it to direct allotment of an alternative five-acre site — relief no statute provided.
  • Shilpa Sailesh (2023) confirmed that the Court may dissolve a marriage on the ground of irretrievable breakdown, which is not a ground under the Hindu Marriage Act.
  • In the Chandigarh mayoral election case, 2024 the Court used it to set aside a manipulated count and declare the rightful candidate elected, rather than order a fresh poll.
  • It has been used to commute sentences, transfer investigations, and impose environmental measures with no statutory foundation.
• The critique is that “complete justice” is a standard without a boundary.
  • Supreme Court Bar Association (1998) held that Article 142 cannot be used to supplant substantive statutory law or to exercise powers vested in another authority — the Court cannot, for example, debar an advocate, a power belonging to the Bar Council.
  • Earlier, Prem Chand Garg (1963) held that an order under Article 142 cannot be inconsistent with fundamental rights.
  • The deeper objection is that there is no principle by which the citizen can predict when Article 142 will be used, which converts an equitable power into an unreviewable discretion.
  • The 2025 advisory opinion supplies the most authoritative limit yet: Article 142 cannot be used to create a constitutional consequence the text does not provide.

The remaining powers

• Article 129 makes the Supreme Court a Court of Record with power to punish for contempt of itself.
• Article 137 permits review of its own judgments, subject to law and rules — the basis of the curative petition, invented in Rupa Ashok Hurra (2002) as a final remedy after review has failed.
• Article 139A allows transfer and consolidation of cases involving the same questions of law pending before it and one or more High Courts.
• Article 140 allows Parliament to confer supplemental powers; Article 144 obliges all civil and judicial authorities to act in aid of the Supreme Court.
• Article 147 governs interpretation of the Government of India Acts and Orders in Council for the purposes of Articles 132, 133 and 134.

The Court as federal umpire

• The design assumed a neutral arbiter standing above both levels of government, which is why Article 131 vests exclusive jurisdiction and why judges are appointed by neither level acting alone.
• The record is strongest where the dispute is straightforwardly legal and weakest where it is politically charged.
• S.R. Bommai (1994) is the high point. Nine judges held that a proclamation under Article 356 is justiciable, that the satisfaction of the President must rest on relevant material, that a majority must be tested on the floor of the House and not in the Governor’s judgment, and that an assembly may not be dissolved before both Houses of Parliament approve.
  • The judgment declared federalism part of the basic structure, and the frequency of Article 356 proclamations fell sharply afterwards.
  • The silence before Bommai is equally part of the record: Article 356 had been used well over a hundred times between 1950 and 1994, very often against opposition state governments, and the Court had done little.
• Inter-state water disputes show the Court entering by an unlocked side door.
  • Article 262 and Section 11 of the Inter-State River Water Disputes Act, 1956 together bar the jurisdiction of all courts including the Supreme Court.
  • Yet the Court has consistently entertained challenges to tribunal awards under Article 136, on the reasoning that a tribunal is a tribunal within the meaning of that article, and its 2018 Cauvery judgment reallocated shares between Karnataka and Tamil Nadu and directed the framing of a Cauvery management scheme.
  • Whatever progress there has been on the Cauvery is largely the Court’s doing — and it was achieved by circumventing an express constitutional exclusion.
• Other federal interventions of consequence include the litigation over the legislative and administrative powers of the Government of NCT of Delhi, and the ruling that GST Council recommendations are persuasive rather than binding, which read cooperative federalism into a structure the states feared was purely centralising.
• The 2025 Presidential Reference is now the pivot of the federal question, because the Governor’s power to sit on state legislation is the sharpest instrument of central influence over elected state governments — and the Court has held that it will not fix a deadline, while reserving the power to intervene against indefinite inaction.

Guardian of rights: from Gopalan to privacy

The rights record is not a story of steady progress but of collapse and reconstruction. The Court began by reading the liberty clause as narrowly as its text allowed, surrendered altogether when the Emergency tested it, and then rebuilt an expansive jurisprudence whose scope now exceeds anything the framers wrote down. Each phase was a reaction to the one before it.

Phase	Stance	Landmarks
1950–1967	Textual and deferential; procedure over substance	A.K. Gopalan (1950) — Articles 19, 21 and 22 read as watertight compartments
1967–1975	Assertive on property, cautious on liberty	Golaknath, Bank Nationalisation, Privy Purses, Kesavananda (1973)
1975–1977	Collapse	ADM Jabalpur (1976) — no remedy for illegal detention during Emergency
1978–1990s	Reconstruction and expansion	Maneka Gandhi (1978), Sunil Batra, Hussainara Khatoon, Olga Tellis
2000s onward	Dignity and autonomy	Puttaswamy (2017), Navtej Johar (2018), Joseph Shine (2018), Shayara Bano (2017)

• A.K. Gopalan read “procedure established by law” literally, holding that any law duly enacted satisfied Article 21, and that Articles 19, 21 and 22 operated independently of one another.
  • The result was that a preventive detention law could not be tested for reasonableness, only for existence.
• ADM Jabalpur v. Shivkant Shukla (1976) is the darkest hour in the Court’s history. By 4:1, the Court held that during a proclaimed Emergency with Article 21 suspended, no person had any locus to move any court for habeas corpus, even against an illegal detention or a killing.
  • Justice H.R. Khanna’s lone dissent — that the right to life and liberty is not the gift of the Constitution and cannot be extinguished by suspending the remedy — cost him the Chief Justiceship.
  • The judgment was expressly overruled in Puttaswamy (2017), forty-one years later, with the Court calling it seriously flawed.
  • The institutional lesson is uncomfortable: the Court failed precisely when it was needed most, and every subsequent expansion of its powers has been partly an attempt to earn back what it lost then.
• Maneka Gandhi (1978) rebuilt the edifice. It held that procedure established by law must be fair, just and reasonable, not arbitrary or fanciful, and that Articles 14, 19 and 21 form a golden triangle informing one another.
  • The effect was to import substantive due process into the Constitution without the phrase — which the framers had deliberately omitted after Ambedkar’s discussions in the United States.
• The expansion of Article 21 thereafter is the Court’s most consequential body of work: the right to livelihood, shelter, health, clean environment, speedy trial, legal aid, education, food, privacy and dignity were all read into a clause that says only that no person shall be deprived of life or personal liberty except according to procedure established by law.
• The recent equality and autonomy judgments have been decisive in their own field: Puttaswamy on privacy as a fundamental right; Navtej Johar reading down Section 377 to decriminalise consensual same-sex conduct; Joseph Shine striking down adultery as a crime; Shayara Bano invalidating instant triple talaq.
• But declaration is not delivery. The Sabarimala judgment of 2018 was met with organised resistance on the ground and could not be implemented, and a review reference remains pending before a larger bench.
  • Shylashri Shankar and Pratap Bhanu Mehta, studying health and education litigation, found that judges overwhelmingly preferred weak remedies — committees, negotiation channels, status-quo orders — over strong enforcement against the state, and that the Court’s actual influence on health and education policy was indirect and minimal.
  • Their explanation is institutional rather than moral: judges know their orders may not be enforced and know they will not be on the bench long enough to supervise compliance, so they pick battles they can win — typically against private providers rather than against the government.

Rule of law: the electoral and anti-corruption record

• The Court’s most durable contribution outside rights adjudication is the cleaning up of elections, done in partnership with the Election Commission and civil society.
  • The 2002 ruling on candidate disclosure established the voter’s right to know the criminal antecedents, assets and educational qualifications of candidates, and struck down the legislative attempt to reverse it.
  • Lily Thomas (2013) struck down the provision allowing convicted legislators to continue in office pending appeal, making disqualification immediate on conviction.
  • The NOTA option was introduced by judicial direction in 2013; disclosure of criminal antecedents by political parties was mandated in a series of subsequent orders.
  • The electoral bonds scheme was struck down in 2024 as violating the voter’s right to information under Article 19(1)(a) — the most significant intervention in political finance the Court has made.
• On corruption, the Court restructured the CBI’s insulation from political control in Vineet Narain (1997), cancelled 122 telecom licences in the 2G matter in 2012, and cancelled coal block allocations in 2014.
  • These interventions established that executive discretion over public resources is reviewable, which is a genuine addition to Indian administrative law.
• The cumulative effect is trust. Whatever its failures, the Supreme Court is consistently among the institutions Indians report the most confidence in, and much of the legitimacy of the constitutional order rests on that fact rather than on the performance of the elected branches.

The appointment of judges: the longest-running institutional conflict

No question in Indian constitutional practice has consumed more institutional energy than who chooses judges. The Constitution settled it in a single word, “consultation”, and that word has since been interpreted to mean executive primacy, then judicial primacy, then judicial primacy fortified by the basic structure doctrine — with the political branches losing every round and the vacancies mounting regardless.

The text and the first phase

• Article 124(2) provides that judges of the Supreme Court are appointed by the President after consultation with such judges of the Supreme Court and of the High Courts as the President may deem necessary, and that the Chief Justice of India shall always be consulted for appointments other than that of the CJI.
• Article 217 makes parallel provision for High Court judges — consultation with the CJI, the Governor, and the Chief Justice of the High Court.
• The framers chose “consultation” deliberately, rejecting both “concurrence” and an appointments commission. Ambedkar’s stated position was that giving the CJI a veto would be to make him a super-executive, which no single official should be.
• For the first four decades the executive had primacy, and the convention of appointing the senior-most judge as CJI was the main constraint on it — until the executive broke it twice.
  • 1973: after Kesavananda, Justices Shelat, Hegde and Grover were superseded and A.N. Ray appointed CJI. All three resigned.
  • 1977: after the Emergency, Justice H.R. Khanna — the ADM Jabalpur dissenter — was superseded in favour of M.H. Beg. Khanna resigned.
  • Together with the mass punitive transfers of High Court judges during the Emergency, these episodes destroyed the credibility of executive primacy and set the terms of everything that followed.

The three Judges Cases

Case	Year	Holding
S.P. Gupta (First Judges Case)	1981	“Consultation” does not mean “concurrence”; the executive has primacy and may depart from the CJI’s advice for cogent reasons
SCAORA v. Union of India (Second Judges Case)	1993	Overruled the first; consultation means concurrence; the CJI’s opinion, formed collectively with senior colleagues, has primacy — the collegium is born
Special Reference No. 1 (Third Judges Case)	1998	The CJI must act through a collegium of the CJI and the four senior-most judges; a recommendation made without it is not binding on the government

• The collegium is therefore entirely judge-made. No provision of the Constitution mentions it, no statute constitutes it, and no rule governs its procedure.
• The government’s only formal power is to return a recommendation once; if the collegium reiterates, the government is bound — though nothing compels it to act within any time.

The critique of the collegium

• Opacity is the central charge. The collegium deliberates without published minutes, without stated criteria, and historically without reasons for either selection or supersession.

“The process by which a judge is appointed to a superior court is one of the best kept secrets in this country.” — Ruma Pal

• Named jurists across the spectrum have attacked it. Fali S. Nariman, who argued and won the Second Judges Case, later described the outcome as one he regretted; Ruma Pal, a former Supreme Court judge, delivered the most cited indictment; S.S. Sodhi and others have made similar arguments about arbitrariness in selection.
• Nepotism and the “uncle judges” problem — the concentration of appointments among the families and chambers of sitting and former judges — was flagged by the Law Commission in its 230th report and has never been systematically addressed.
• There is no permanent secretariat, no database of eligible candidates, no formal assessment of judgments or professional record, and no institutional memory beyond the individuals in the room.
• Diversity outcomes are poor. Of the High Court appointments made over a recent five-year period, roughly three-quarters were from the general category, with about 3.5 per cent Scheduled Caste, 1.5 per cent Scheduled Tribe, 11.7 per cent Other Backward Classes and 5.5 per cent from religious minorities; women are about 13 to 14 per cent of the higher judiciary.
  • As of early 2026 seven High Courts had no representation at all among the judges of the Supreme Court, while a small number of High Courts have supplied a disproportionate share of Chief Justices.
• Supersession has not disappeared, it has merely changed hands. The collegium itself has departed from seniority in elevations, without publishing reasons — which is the same objection once made against the executive.

The 99th Amendment, the NJAC, and after

• The Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 replaced the collegium with a six-member body: the CJI, the two senior-most Supreme Court judges, the Union Law Minister, and two eminent persons chosen by a committee of the Prime Minister, the CJI and the Leader of the Opposition.
  • Any two members could veto a recommendation, which meant the two eminent persons, or the Law Minister with one of them, could block any name.
  • The amendment passed both Houses almost unanimously and was ratified by more than half the state legislatures — an unusually broad political consensus.
• On 16 October 2015 a five-judge bench struck down both the amendment and the Act by 4:1 in the Fourth Judges Case, holding that primacy of the judiciary in appointments is part of the basic structure and that the veto structure compromised judicial independence.
  • Justice J. Chelameswar dissented, arguing that the collegium’s opacity was itself a threat to independence and that transparency required a broader body.
  • The same bench then invited suggestions to improve the collegium and directed the government to finalise a revised Memorandum of Procedure.
• The Memorandum of Procedure has not been finalised to this day. The unresolved points — a permanent secretariat, criteria of eligibility, and above all the national security veto the government sought — have kept it in draft for over a decade.
  • The practical consequence is a system running on an unrevised pre-2015 memorandum, in which the government’s principal instrument is delay.
• The scale of the resulting vacancy problem is now the central fact about the higher judiciary.
  • As of 1 July 2026, the High Courts had a sanctioned strength of 1,122 against a working strength of 781 — 341 vacancies, or 30.4 per cent.
  • Several High Courts were operating at half strength or worse, with vacancy rates above 40 per cent in Jammu & Kashmir and Ladakh, Jharkhand, Orissa and Calcutta.
  • In the district judiciary, as of 17 July 2026, 7,310 of 30,868 sanctioned posts were vacant — 23.7 per cent.
  • India has about 22 judges per million population, against the 50 per million the Law Commission recommended in 1987 and the Supreme Court endorsed in 2002.

Neither the collegium nor the executive can appoint a judge alone, and both can prevent one from being appointed — which is why a third of the High Court bench is empty.

Judicial accountability

• The Constitution supplies exactly one mechanism — removal — and it has never once succeeded.

Attempt	Year	Outcome
Justice V. Ramaswami	1993	Inquiry committee found misbehaviour proved; the motion failed in the Lok Sabha when the ruling party abstained and it did not secure the required majority
Justice Soumitra Sen	2011	Rajya Sabha passed the motion; he resigned before the Lok Sabha could vote
CJI Dipak Misra	2018	Notice signed by opposition members rejected by the Rajya Sabha Chairman at the admission stage
Justice Yashwant Varma	2025–26	In-house committee and statutory inquiry committee both found against him; proceedings continuing

• The Varma proceedings are the most complete test the procedure has ever received.
  • Cash was discovered at his official residence in Delhi in March 2025 following a fire; an in-house committee constituted by the then Chief Justice reported in May 2025 that he had at least tacit control of the storeroom.
  • His challenge to the in-house procedure was dismissed by the Supreme Court in August 2025, and a further challenge to the Speaker’s inquiry was rejected in January 2026.
  • The Lok Sabha Speaker admitted a removal motion signed by 146 members in August 2025 and constituted a committee under the Judges (Inquiry) Act comprising a Supreme Court judge, a High Court Chief Justice and a senior advocate.
  • That committee’s report, tabled in Parliament in 2026, found the charges proved, holding that the cash was never satisfactorily explained and that evidence had been interfered with. The removal motion itself awaits a vote.
  • Whatever the outcome, the episode has demonstrated that the procedure can be run to completion — and how many years it takes.
• Because removal is nearly unusable, the judiciary built its own machinery.
  • The Restatement of Values of Judicial Life, 1997, adopted by the full court, is a code of conduct covering social conduct, family practice before the same court, acceptance of hospitality and public comment.
  • The in-house procedure, adopted in 1997 and restated in 1999, allows a Chief Justice to constitute a committee of judges to inquire into allegations against a judge, with remedies short of removal — advice, withdrawal of judicial work, or a request to resign.
  • Its weakness is that it produces no enforceable sanction and operates entirely within the judiciary.
• Transparency has advanced through litigation and through the Court’s own resolutions.
  • In Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal (2019), a Constitution Bench held that the office of the Chief Justice of India is a “public authority” under the Right to Information Act, while carving out substantial exemptions for personal information and appointment deliberations.
  • In April 2025 the full court resolved that all judges would declare their assets, and the declarations were published on the Supreme Court’s website from May 2025 — a voluntary step that decades of RTI litigation had failed to secure.
• The contempt power cuts the other way. Article 129 makes the Court a court of record with power to punish contempt of itself, and the Contempt of Courts Act, 1971 retains scandalising the court as criminal contempt.
  • The 2020 conviction of a senior advocate for tweets critical of the judiciary revived the objection that the power operates as a shield against criticism rather than a protection of the administration of justice — an anomaly in a system where the judiciary reviews everyone and no one reviews the judiciary’s public conduct.
• The press conference of January 2018 remains the sharpest internal indictment. Four of the five senior-most judges — Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph — held an unprecedented public conference alleging that the assignment of sensitive cases to selected benches had gone wrong, and warning that democracy itself was at risk if the institution was not set right.
  • The specific grievance was the master-of-the-roster power, which the Court subsequently affirmed belongs exclusively to the Chief Justice.
  • The general grievance — that outcomes may turn on which bench hears a case — has never been answered institutionally.

Assessment: what scholars say

Academic writing on the Court divides less over what it has done than over how to describe an institution that both defends the Constitution and rewrites it. The sympathetic accounts treat judicial expansion as a response to institutional failure elsewhere; the critical ones treat it as an appetite for power dressed as duty; and the empirical work suggests that both may be overstating how much the Court actually changes.

Scholar	Central claim	Evaluative thrust
Granville Austin	The judiciary was designed as an arm of the social revolution, and later took on the “custody of the Constitution”	Broadly sympathetic; treats the Court as one of the seamless web’s three strands
Upendra Baxi	Post-Emergency activism was “judicial populism” and “post-emergency catharsis”; the Court moved from being the Supreme Court of India to the Supreme Court for Indians	Sympathetic but sceptical about the durability of gains
Pratap Bhanu Mehta	India exhibits judicial sovereignty; the Court is politicised, self-perpetuating, paradoxical, and now in a crisis of institutional credibility	Severely critical
Bhikhu Parekh	India is a case of judicial co-governance	Descriptive; the Court is a partner in governing, not a check on it
Shylashri Shankar and Pratap Bhanu Mehta	Judges chose weak remedies and had minimal direct impact on health and education policy	Empirical deflation of the activism thesis
Charles Epp	The Court’s agenda is incoherent because of overload, panel fragmentation and short tenures; rights revolutions need support structures, not just judges	Structural, not moral
Marc Galanter and Jayanth Krishnan	Access to justice is stratified; the poor reach courts rarely and through intermediaries	Access-centred critique
S.P. Sathe	The Court moved from positivism to activism, reconceiving the judicial process as accessible and participatory	Defends the transformation
Zia Mody	The basic structure doctrine was a blessing in disguise; uncertain democracy is preferable to certain authoritarianism	Defends judicial creativity on consequentialist grounds
George Gadbois	Collective biography of every judge appointed between 1950 and 1989 shows a bench drawn from a narrow social and professional stratum, with short average tenures and appointment patterns shaped by seniority and region	Empirical; explains behaviour by recruitment rather than by doctrine
Nick Robinson	The Court is in substance an appellate court under Article 136, its docket concentrated in special leave petitions and geographically skewed toward litigants near Delhi	Deflates the constitutional-court self-image with numbers

Judicial behaviour as a subject in its own right

Judicial behaviour asks a question distinct from constitutional doctrine: not what the law required, but why a particular bench decided as it did. It is the study of judges as actors with backgrounds, incentives and institutional constraints.

• The legal model holds that outcomes follow from text, precedent and reasoning, and that a judge’s identity is irrelevant to the result. It is the profession’s own account of itself.
• The attitudinal model, developed on the American Supreme Court, holds that outcomes track judges’ policy preferences, and predicts votes from ideology better than from doctrine.
• The strategic model treats judges as constrained maximisers — they anticipate the reactions of colleagues, of the government and of the public, and adjust reasoning and remedy accordingly.
• Indian conditions weaken all three in the same way. A bench of two or three judges drawn from a court of more than thirty, sitting on a roster set by the Chief Justice, means the identity of the bench can matter more than the identity of the doctrine.
  • Gadbois’s biographical work established the recruitment base — a socially narrow bench with short average tenures produced by the seniority convention, which leaves little time to build a jurisprudential position.
  • Charles Epp’s finding of an incoherent agenda follows from the same structure: dozens of small benches generating parallel and sometimes conflicting lines of authority.
  • Mehta’s description of judgments as “artefacts of individual judges” is the normative statement of what these empirical accounts describe, and the master of the roster controversy of 2018 is its institutional expression.
• Why it matters for the rule of law. If similarly situated litigants can expect materially different outcomes depending on the bench, the system delivers a rule of judges rather than a rule of law — which is why bench-allocation transparency, larger benches for constitutional questions, and a published listing protocol are accountability demands rather than administrative housekeeping.

Mehta’s four charges, set out

• Politicisation and self-perpetuation. The judiciary is a highly politicised institution that has used political crises to enlarge its own power and burnish its own image, making it a self-perpetuating institution rather than a neutral organ.
• The “promise of uncertainty”. The Court changes its position within short intervals and has never articulated an overarching set of values with which it interprets the Constitution.
  • The result is that judgments become artefacts of individual judges rather than of the institution.
  • What India therefore has, on this account, is not the rule of law but the rule of judges — and litigants know it, which is why there is an observable struggle to have a matter placed before a particular bench.
  • The bench-allocation controversy surrounding the Justice Loya matter, which precipitated the 2018 press conference, is the illustration Mehta relies on.
• A paradoxical institution. Three paradoxes at once.
  • Powerful judgments, limited change on the ground — the gap between declaration and delivery, of which Sabarimala is the clearest recent case.
  • Intervening in other institutions’ work while its own primary function decays — a hundred thousand pending appeals, including capital cases, while the Court supervises administration.
  • Enforcing accountability on every other branch while accepting almost none itself — the asymmetry that perception surveys, including those of Transparency International, have repeatedly registered in placing the judiciary among the institutions Indians consider most corrupt.
• A crisis of institutional credibility. The 2018 press conference, in which four sitting judges described internal anarchy and warned about the future of democracy, is on Mehta’s reading not an aberration but a symptom.

The counter-case

• The Court moved into space the other organs vacated. The expansion of Article 21, the environmental jurisprudence and the food and education litigation all began where administration had failed and no remedy existed.
• A court with Article 32 as a fundamental right cannot decline a remedy on the ground that supplying it is inconvenient or would look like policy-making.
• The Court withdraws where legislatures act — the Vishaka guidelines lapsed the moment Parliament legislated in 2013, which is evidence of a supplementary rather than a supplanting role.
• The basic structure doctrine is the strongest exhibit for the defence. Kesavananda established, by 7:6, that Parliament’s amending power under Article 368 does not extend to destroying the Constitution’s essential features — the Court distinguishing the political sovereignty of a parliament from the popular sovereignty the Constituent Assembly represented.
  • The first school of thought treats it as judicial overreach — a metaphysical doctrine, an open-ended list, judges as philosopher kings, a hanging sword over legislative initiative, and all of it turning on a single vote.
  • The second school, associated with Zia Mody, treats it as a blessing in disguise, without which India would have followed the trajectory of other post-colonial states, and holds that the list should stay open as a safety valve rather than being exhaustively enumerated.
  • The doctrine belongs analytically to the amending power rather than to the institution, but institutionally it is the moment the Court became the final word on the Constitution rather than its final interpreter.

The reform agenda

The reform literature is remarkably stable: most of what is proposed today was proposed by the First Law Commission in the 1950s and by the Malimath Committee decades later. What has changed is the scale of the problem the proposals must now solve, and the recognition that the apex court is not where most of it lives.

The bench and the office

• Equalise the retirement age. Supreme Court judges retire at 65 and High Court judges at 62, and the three-year gap functions as an inducement dangled before High Court judges by both the executive and the collegium. Parity would remove it.
• End post-retirement appointments. The First Law Commission made the point in the 1950s and it has been repeated since: if age renders a person unfit to judge, it cannot simultaneously render them fit to chair a tribunal or a commission; if it does not, the answer is a higher retirement age, not a post-retirement career.
  • A cooling-off period before any government appointment is the most frequently proposed intermediate step.
• Reconsider seniority as the sole criterion for the Chief Justiceship. The office demands leadership and administrative capacity — control of the roster, of listing, of the Court’s administration and of appointments — and seniority guarantees none of it, while also producing tenures of a few months.
  • The First Law Commission recommended merit-based selection; the counter-argument, made ever since the supersessions of 1973 and 1977, is that any discretion here is an invitation to the executive.

Appointments and recruitment

• A reformed appointment mechanism is the unavoidable item. The realistic options are a revised Memorandum of Procedure with binding timelines on the government and published criteria, a permanent independent secretariat maintaining a merit database, or a reconstituted commission that preserves judicial primacy while adding non-judicial voices.
• An All India Judicial Service under Article 312. The route requires only a Rajya Sabha resolution supported by two-thirds of members present and voting, after which Parliament may legislate — no constitutional amendment is needed.
  • The case for it: a single national competitive recruitment would attract better talent, standardise quality, permit reservation-based representation for marginalised communities, and address the shortfall against the 50-judges-per-million benchmark.
  • The case against it: Article 233 vests appointment of district judges in the Governor in consultation with the High Court, so an AIJS erodes High Court control over the subordinate judiciary; language is a genuine obstacle, since trial courts work in regional languages; and states read it as a federalism intrusion.
  • The Supreme Court endorsed the idea in the All India Judges Association litigation, and the government continues to support it, but successive consultations have found most states and most High Courts opposed — which is why it has not moved.

Structure and access

• A National Court of Appeal with regional benches is the standing proposal for the docket problem. The idea is that the Supreme Court sits in Delhi as a constitutional court hearing constitutional and public-law matters, while regional appellate benches absorb the ordinary appellate work now arriving under Article 136.
  • The Law Commission has recommended cassation benches in the four regions; a public interest petition seeking such a court was referred to a Constitution Bench in 2016 and has not been decided.
  • The Court itself has consistently resisted, on the grounds that it would dilute Article 136, fragment the law and create a fifth tier — but the objection sits uneasily with a docket of ninety-five thousand.
• Case and court management. Systematic triage of the pending list would dispose of a large share of matters in minutes with modest cooperation from the prosecution; active management of a suit from filing to resolution, with fixed timetables, is standard practice elsewhere and rare in India.
• Alternative dispute resolution has been built out substantially and remains underused relative to the backlog.
  • The Arbitration and Conciliation Act, 1996, amended repeatedly to curtail judicial interference and impose time limits on awards, governs commercial arbitration.
  • The Mediation Act, 2023 established a statutory framework for institutional mediation with pre-litigation mediation in defined categories.
  • Lok Adalats under the Legal Services Authorities Act, 1987 produce awards with the force of a civil decree that are not appealable; a single National Lok Adalat in May 2026 settled over 2.07 crore cases, of which about 1.88 crore were pre-litigation matters.
  • Gram Nyayalayas under the 2008 Act were envisaged at every intermediate panchayat level — well over ten thousand — but only a few hundred were ever notified and fewer than that function.
• Language. The exclusive use of English in the higher judiciary excludes most litigants from proceedings about their own lives. Article 348 permits regional languages in High Courts with Presidential assent, and the Supreme Court has begun publishing translated judgments in Indian languages, which is a partial answer.
• Technology. The e-Courts Mission Mode Project, now in its third phase, funds digitisation of records, virtual hearings, electronic filing and the National Judicial Data Grid, which for the first time makes pendency measurable in real time.
  • Virtual hearings, adopted out of necessity in 2020, have been retained and have reduced the cost of appearance for litigants and lawyers outside Delhi.
• Cost and complexity. Litigation remains unaffordable for the overwhelming majority; procedural complexity, adjournments and multiple appeals compound it. Legal aid exists but is thinly resourced.

The bottom-up argument

• Justice Madan Lokur’s contention is that the reform debate is aimed at the wrong level. Almost every litigant meets the judicial system at a district court, and that is where the principal problems lie.
  • Infrastructure and facilities at trial-court level are poor — court halls, record rooms, waiting spaces, toilets, digitisation.
  • Nearly 4.8 crore of India’s roughly 5.4 crore pending cases sit in the district judiciary, against about 62 lakh in the High Courts and 95,718 in the Supreme Court.
  • Vacancies of nearly a quarter of sanctioned district judicial posts, with far worse figures in some large states, are the immediate cause.
  • Unless these are addressed, reform at the apex changes nothing for the average litigant.

“Everything has been said already, but as no one listens, we must always begin again.” — André Gide, quoted in the report of the Malimath Committee

Conclusion

The Supreme Court has discharged its envisaged roles unevenly and its unenvisaged ones enthusiastically. As protector of the Constitution it was passive until executive overreach forced it into activity, and it has since been the most consequential institution in Indian constitutional life. As guardian of rights it failed catastrophically in 1976 and has spent five decades rebuilding. As federal court it has been at its most convincing, and as apex court — the role the Constitution actually assigns it — it is failing under a docket its own jurisprudence created.

• The gap between design and practice opened for three reasons, and each suggests its own remedy.
  • Institutional vacuum. The Court expanded because Parliament and the executive contracted; the remedy is not judicial restraint alone but the recovery of the other organs.
  • Uncontrolled jurisdiction. Article 136 gave the Court a power no court can exercise responsibly at scale; the remedy is a structural separation of constitutional from appellate work.
  • Accountability asymmetry. The Court secured its independence and never built the accountability that should have accompanied it; the remedy is transparency in appointments, a workable removal procedure, and rules governing the roster.
• The question is finally about legitimacy. A court that governs must be able to explain, in terms available to citizens, why its power is legitimate — and neither the collegium nor the master-of-the-roster power currently admits of such an explanation.
• What is not in doubt is that the institution matters. The trust the Supreme Court has generated is one of the few resources the Indian constitutional order has not spent, and every argument for reform is ultimately an argument about how not to spend it.