Privy Council To Supreme Court: Continuity, Sovereignty And The Evolution Of India's Apex Court

On 26^th January, India commemorates the 76th anniversary of the commencement of its Constitution. Contrary to a layman's perspective, the new Constitution did not give birth to a completely new regime, but it blew a new and independent soul into a pre-existing administrative and judicial skeleton, thereby inheriting (with necessary modifications) the system as it existed under the Government of India Act 1935 and its predecessors. Therefore, while the Constitution signified sovereignty, it also embraced overall continuity of the earlier setup in order to ensure a smooth transition. This continuity was also reflected in the judicial institutions, which remained as they stood on the eve of independence, with only the Supreme Court replacing the Federal Court.

For more than a century, until the twilight years of the British Raj in 1937, India had no indigenous apex court. The Privy Council, which sat some 4000 miles away in London, was in effect, India's court of last resort. Formally styled as “His Majesty's Most Honourable Privy Council”, it is a large advisory body to the British Monarch, and its sub-committee, known as the “Judicial Committee of the Privy Council”, was the court of final resort for the British Empire. Formally established in 1833 and continued until 1949, when its jurisdiction over India was abolished, the Privy Council decided several thousand Indian cases, many of which laid down the basis of Indian law and are still considered landmark precedents.

While today, Indian courts have plethora of judicial pronouncements to their benefit, the Privy Council judges were bereft of such an advantage as Indian law was still in its nascent stages. Being guided by English common law, they sought to apply it to Indian circumstances, and while undertaking such an exercise, they had to often refer to original Arabic, Persian or Sanskrit authorities to resolve complex questions of Hindu and Muslim personal laws, be it the significance of custom in Hindu coparcenary property^[1], or the permanent nature of Waqf^[2]. However, the scope of appeals to the Privy Council was limited. Civil Appeals could lie for suits valued at least Rs. 10,000/- and involving a substantial question of law, while criminal appeals were rare, only upon a manifest and grave violation of legal process or principles of natural justice. Over the period of time, the Privy Council judges earned a reputation of being fair, impartial and highly efficient.

The earliest demand for a Supreme Court in India came from the eminent jurist Sir Hari Singh Gour, who, in 1921, 1922 and 1925, introduced several resolutions in the Central Legislative Assembly for this cause. His proposals primarily reasoned on the great distance between India and London, and Privy Council's very limited scope of criminal appeals. However, he did not propose for the abolition of Privy Council's jurisdiction, but to complement it with a parallel Indian Supreme Court, and the litigant could approach either of them. Gour's proposals were opposed in the Assembly by several members including the President who ruled that the Indian legislature did not have a power to establish such a court, and the then Law Member Sir Tej Bahadur Sapru who suggested postponement of this debate until public opinion had been ascertained.

One of the most staunch critics of the idea was Pandit Motilal Nehru who thought it unfeasible to have a Supreme Court in India due to non-separation of government's executive and judicial functions and the existence of racial discrimination. Mahatma Gandhi, Muhammad Ali Jinnah and later on Sapru strongly supported Gour's proposals. In 1927, Sir Sankaran Nair moved a similar resolution in the Council of State. The Nehru Report of 1928 provided for establishing a Supreme Court which would almost replace the Privy Council. During the Second Round Table Conference in 1932, the Federal Structure Committee mooted the proposal of a Federal Court with an original jurisdiction in disputes between the Federation and a Province/Princely State or between Provinces/Princely States inter se, along with an appellate jurisdiction. Privy Council's power to grant special leave to appeal was retained.

At the same time, a debate emerged as to the establishment of a Federal Court versus that of a Supreme Court. British Indian delegates in the Conference proposed that the Federal Court should sit in two divisions, one dealing with original jurisdiction of Federal disputes, and the other one responsible for hearing appeals from Provincial High Courts. Delegates of Princely States, however, opposed this idea. They were of the view that Federal Court and Supreme Court should be two separate courts, the former being an all-India court while the latter's jurisdiction being confined to British India. By the time of the Third Round Table Conference in 1932, the proposal for a Federal Court had been agreed upon while that for a Supreme Court remained pending. Majority of British Indian delegates (including Sapru) wanted both a combined Federal Court and Supreme Court. Some delegates such as Sir Nripendra Sarcar opposed a Supreme Court and were in favour of continuation of the Privy Council's appellate jurisdiction due to its impartiality.

British Government was, although, not opposed to the idea of a Supreme Court and reduction of Privy Council's jurisdiction, but it was critical of the urgency and believed that such a court could be established in future by the Indian Legislature. This view was reflected in the famous White Paper of 1933. Following this, the British Parliament appointed a Joint Committee on Indian Constitutional Reform which debated the Federal Court-Supreme Court question at length. Sir Samuel Hoare, Secretary of State for India and a member of the Joint Committee suggested instead of establishing a separate Supreme Court, the Indian Legislature could be given the power to extend the Federal Court's jurisdiction.^[3] In its 1934 Report^[4], the Joint Committee accepted Hoare's recommendations.

Accordingly, the Government of India Act 1935 established a Federal Court with original and appellate jurisdiction over disputes relating to Provinces and Provincial High Courts (in matters involving interpretation of the 1935 Act). However, it had limited jurisdiction over federated Princely States and their High Courts which remained a prerogative of the Princely Ruler. Appeals to the Privy Council, both from the Federal Court as well as directly from the High Courts (in cases not involving interpretation of the 1935 Act) were retained. However, no appeal lied to the Federal Court in cases of interpretation of federal laws and the same was left to the High Courts. In spite of this, the 1935 Act brought some uniformity as it provided that judgments of Privy Council and Federal Court in matters of federal laws would be binding.

Upon independence in 1947, the Federal Court witnessed a seamless transition to the newly independent Dominion, as the Federal Court Order 1947 provided for division of the Court into Federal Courts of India and Pakistan, respectively, and for continuity in all other matters. As the Constituent Assembly drafted India's new Constitution, the Federal Court continued to work under the ambit of the 1935 Act, until it was replaced by the Supreme Court.

Interestingly, upon independence, even as there was an immediate transfer of power and complete sovereignty of the Indian executive and legislature, the relationship of the Privy Council in respect of the Federal Court and High Courts remained unaffected. This shifted in December 1947 with the Federal Court (Enlargement of Jurisdiction) Act, which enlarged the Federal Court's appellate jurisdiction by empowering it to entertain regular civil appeals from Indian High Courts, and no direct civil appeal (from a High Court) could be filed before the Privy Council. However, the Privy Council still retained its jurisdiction to hear civil appeals from the Federal Court as well as direct criminal appeals (by way of special leave) from the High Courts.

The final measure which sealed the fate of the Privy Council with India came in October 1949 with the enactment of the Abolition of Privy Council Jurisdiction Act, which ended the Privy Council's jurisdiction appellate over India and vested it in the Federal Court. Pending appeals before the Privy Council were to be transferred to the Federal Court, except those wherein the Privy Council had reserved judgment or where His Majesty's Order-in-Council had not been issued yet, as provided in the savings clause of the Act. This effectively marked the end of Privy Council's more than a century old Indian saga in India, during which it had decided thousands of cases.

As stated above, the people of India greatly trusted the Privy Council and the Federal Court, and when they were succeeded by the Supreme Court on 26^th January 1950, they left a legacy which lasts to this day.

Article 374 of the Indian Constitution gave the Supreme Court the same authority as the Federal Court, and its rulings became legally binding throughout the country. It also guaranteed the Supreme Court's continuity by elevating current Federal Court judges to the position of Supreme Court judges, transferring pending cases, and upholding earlier Federal Court rulings as though they had been rendered by the Supreme Court.

Under the new Constitution, the allegiance of the judges merely shifted from the crown to the very constitution adopted by the people of India, ensuring a smooth transition. A small number of British judges even remained in India. Justice O.H. Mootham, for instance, was appointed a Judge of the Allahabad High Court in 1946 and continued to serve post-independence and eventually retired as Chief Justice in 1961.

In his article, Abhinav Chandrachud also noted that "collaborators" connected to the previous government are frequently tried and punished when regimes drastically shift. But as we've seen, this wasn't the case in India. This suggests that Indian constitutionalism developed through absorption and recalibration rather than exclusion.

After gaining independence, few former colonies still chose to maintain ties with the Privy Council as their last court of appeal. Appeals to the Privy Council are still allowed in independent countries including Antigua and Barbuda, Mauritius, and Brunei, usually in compliance with constitutional clauses that allow departure under specific circumstances.In contrast, India chose complete judicial autonomy based on its constitution. Severance of ties with the Privy Council were, therefore, not out of mistrust but was a political necessity.

Colonial institutions were, thus, not abruptly dismantled at the very moment of attaining sovereignty, rather, they were domesticated. The Privy Council and the Federal Court, though imperial in origin, left behind a jurisprudence that Indian courts neither disowned nor discredited. Post-independence, judges built a new constitutional vessel upon the keel and ribs that they had inherited from the past.

1. Collector of Madura v Moottoo Ramalinga Sathupathy, (1868) 12 Moo. I.A. 397 (PC) ↑

2. Jewun Doss Sahoo v. Shah Kubeer-Ood-Deen, (1840) 2 Moo. I.A. 390 (PC) ↑

3. Joint Committee on Indian Constitutional Reform: Minutes of Evidence, Vol. ii-B, Parliamentary Papers, VII (1932-1933), p. 1241. ↑

4. Parliamentary Papers, V1 (1933-1934). Paragraphs 322-330 pertain to the structure of the central judiciary. ↑