By Professor Satya Narayan Misra* in Bhubaneswar, September 28, 2025: The book that is making waves, is “Incomplete Justice” edited by Justice Murlidhar, which captures contribution from many luminaries like Indira Jaisingh, Sai Nath, Gautam Bhatia & Justice Lokur, where they reflect how has the Supreme Court at the stroke of 75 fared in terms of accountability, transparency and its responsibility to law and people. Most importantly they analyse court’s role as a counter majoritarian institution, balancing between judicial activism with accountability to values of liberty, equality, fraternity and dignity.

The Supreme Court is admittedly the last lamppost of hope for people of India against State as a Leviathan, whose powerful arms often deny citizens their primordial rights like right to freedom, life, liberty, religious practice, dietary habits, sartorial choice, through the specious provision of ‘reasonable restriction’. In particular, how religious minority is being protected in the majoritarian Hindu ethos, to safeguard the concept of India as a secular statehas become major remits of the Supreme Court. Finally, how it balances rights of citizens with the mandate before the state to promote a welfare, inclusive and egalitarian society is a challenge before every Supreme Court judge.

As we look at the Supreme Court since its inception we notice that the 50s witnessed a conservative court, which interpreted the Constitution mechanically, without going in to its soul. The preventive detention of AK Gopalan was upheld in 1950 citing that Article 22 has no correlation with right to freedom (19) or right to life (21). In Champakam Dorairajan Case (1951), the Court struck down reservation of seats for backward classes by giving primacy to Fundamental Right (Article 29(2)) over directive principle (Article 46). Both these propositions were altered through judgements of Justice Bhagawati (1975) & Minerva Mills judgement in 1980.

The 60s saw the joust between full bench of Golak Nath (1967) which firewalled Part III from Parliamentary amendment and the Keshavanand Case (1973) that permitted amendment of fundamental rights, without the basic structure being pummelled or defaced. Fundamental pillars like Democracy, Republicanism, Secularism, Federalism, separation of powers and independence of judiciary have been identified as unalterable & Supreme Court has anointed itself as the rightful guardian.

The basic structure doctrine led to supersession of judges in 1973, because they were not committed to the philosophy of the party in power. The spectre of fear continued during the emergency years when 4 judges in ADM Jabalpur Case (1976) agreed that right to life can be suspended during emergency.

The lone dissenter was HR Khanna, who held that arbitrary detention without fair trial is an anathema to natural rights and right to freedom and rule of law. The Puttaswamy Judgement in 2018 finally upheld the dissenting voice of Khanna unanimously. Justice Khanna was superseded by Justice Beg as CJI, but he remains the bench mark for any judge who evinced courage to speak against authoritarian writ of party in power.

The SP Gupta Case (1981) which upheld that locus standi in a public interest case ceases, triggered a series of PILs with environmentalists like MC Mehta successfully pleading against pollution in the Ganges (Green Justice), Sheela Barse bringing out atrocities committed against under trial children and women in the 80s , ushering prison reforms. Olga Tellis in 1986 could stop demolition of dwelling of slum dwellers in Bombay by arguing that right to livelihood is inherent in right to life. The Shah Bano Case in 1985 brought out why equal rights for maintenance of Muslim women in terms of S125 of CrPC must be enforced, ushering the demand for Uniform Civil Code.

The 90s saw Vishakha Rani Case, in 1997 which has become a template and law against sexual harassment of women in the public. The Unnikrishnan Case (1993) has ensured that school education is now a Fundamental Right to Life and part o RTE Act. The other notable judgements in the 90s were Bommai Case (1994) which introduced floor test, Indra Sawney Case (1993) that upheld OBC reservation and set a 50% limit for reservation.

In 2000s, the important judgements have been striking down NJAC Act (2015), striking down sections in IPC dealing with adultery and decriminalising homosexuality (2018), Shreya Singhal Case (2015) upholding free speech in electronic form. In 2024, the Electoral Bond Scheme was struck down as it promoted opacity and ran contrary to the fundamental right of voters to have complete information.

Judicial Review, a bequest from Marbury Vs Madison (1803) remains the most potent power of the highest court of judicature in India. ‘The judiciary is like oxygen in the air. It is not enough that judges are independent of the executive, but must have noble quality of mind and heart & above all courage’, wrote Fali Nariman.

Justice Khanna took the lead and many have expanded the scope of life and freedom and in recent times called the bluff in cases involving sedition & allowed journalists like Vardarajan the right to express their opinion on OP Sindoor. There is a near unanimity of opinion that striking down the NJAC Act in 2015 and persisting with an opaque collegium system puts n a huge question mark over Supreme Court’s quest for objectivity and impartiality. Justice Nagarathna has made her dissent on this public.

In matter of ‘bail the norm and jail the exception’, the inconsistency of the court is palpable, as it shows partiality towards the powerful and punishes those who are labelled as Urban Naxals. In the Ayodhya case, the full bench clearly erred in depending on faith and not on evidence to handover the site to the Hindus.

As Justice Cardozo wrote “The greatest tide that engulf the rest of men do not turn aside in their course and pass the judges by”. Most judges in India seem to echo the Cordozo concern.’ Like all living institution, the Supreme Court will earn respect by speaking the truth’, said Setalvad, our first Attorney General when the Supreme Court was inaugurated in 1950. The judges should hopefully speak truth to power,’ without fear or favour, affection or ill will’, an oath they take while assuming office.

*Professor Misra teaches Constitutional Law