Amol Chitale1

The story of evolution of the concept of an all India judicial tribunal and  its ultimate culmination in the form of the Supreme Court of India, ticks all the boxes of a Hero's journey as propounded by Joseph Campbell in his seminal work on comparative mythology called the "The Hero with a Thousand Faces". Campbell has discussed his theory of the mythological structure of the journey of the archetypal hero found in world myths. Campbell outlines the Hero's Journey, a universal motif of adventure and transformation that runs through virtually all of the world's mythic traditions. The hero sets out on a journey to acquire some object or attain some sort of divine wisdom. This can be something material (like Arthur's quest for the Holy Grail) or something with far greater spiritual weight (like the Buddha's journey to find ultimate enlightenment). The hero undergoes great trials and tribulations during the course of their quest, undergoes a spiritual (and sometimes literal) death and rebirth, and transforms into an entirely new being. They gain new powers, and with those powers, achieve their goal—they receive the ultimate boon. They then return home to share this heavenly reward with their people—and in doing so, redeem all mankind. The essential feature, the basic common denominator of mythology, is the monomyth. It is the core structure of the myths, the journey that all heroes must undergo. It involves three rites of passage—separation, initiation and return. The pattern of the hero's journey usually follows this cycle: a separation from the world he or she has always known (embarking on the quest), gaining some spiritual or other-worldly power, and a return in which they share the boon of the new power with humanity.2

The Call to Adventure.

The first step in the hero's journey is the beginning of the process of change which may be caused by accident or a deliberate change of circumstances. As per Campbell's analysis a Herald appears to announce the beginning of such a journey.3 In the journey of the Supreme Court, Sir Hari Singh Gour was the Herald.

Sir Hari Singh Gour the legal genius much celebrated for his outstanding commentary on the Indian Penal Code, has also the distinction of not just mooting the idea of an all India Judicial tribunal but also relentlessly pursuing it. As a member of the Central Legislative Assembly, Shri Hari Singh Gour on 26th March 1921 moved a resolution for the establishment of a Supreme Court in India. It read thus:

"This Assembly recommends to the Governor General in Council to be so pleased as to take early steps to establish a Court of Ultimate Appeal in India for the trial of Civil Appeals now determined by the Privy Council in England and as the court of final appeal against convictions for serious offences occasioning the failure of justice."

Victor Hugo the French poet and novelist had said that, nothing is more powerful than an idea whose time has come. Demand for an all India judicial tribunal was an idea whose time had come. The final Appellate Authority for the Courts in British India was the Judicial Committee of the Privy Council. Besides the challenges of cost and distance resulting in delay in resolution of disputes by the Judicial Committee of the Privy Council, the need for an all India Judicial tribunal was felt and justified for various other reasons. It was felt that the Judicial Committee of the Privy Council was not well equipped to deal with the issues pertaining to Hindu Law and Muhammadan law. In fact Mohammed Ali Jinnah, while supporting the resolution for establishment of Supreme Court of India, observed that the Privy Council had on several occasions absolutely murdered Hindu law and slaughtered Muhammedan law. It was felt that ignorance of the local customs and usages severely hampered the resolution of matters relating to Hindu Law and Muhammaden Law by the Judicial Committee of the Privy Council.

Despite it's invaluable contribution to development of Indian jurisprudence, the Judicial Committee of the Privy Council was not seen as an independent Court or a Tribunal but merely as an advisory body constituted and intended to advise the King in his capacity as the highest Tribunal for his dominion. Where the rights of the citizen were concerned, the Privy Council performed the role of an instrument of colonial control4. This lack of independent judicial character of the Judicial Committee of the Privy Council was cited to justify the demand of establishment of a judicial tribunal for India.

Another practical concern which gave a significant imputes to the demand for establishment of a judicial tribunal for India was the severely restricted appellate jurisdiction of the Judicial Committee of the Privy Council.  Civil Appeals governed by the Code of Civil Procedure, 1908 were restricted to suits in which atleast 10,000 rupees were involved and, if the order or decree appealed from, affirmed the decision of the court immediately below, the Appeal also had to involve some substantial question of law. Special Leave to appeal in criminal cases was granted very rarely. The Privy Council was of the view that the Judicial Committee of the Privy Council was not a Court of Criminal Appeal.  Thus a need for more inclusive appellate forum was felt.

Another facet which was highlighted by Sir Hari Singh Gour in 1925 while re introducing Resolution for establishment of Supreme Court in Central Legislative Assembly, was that, numerous matters of disputes between the Executive and the Legislature were decided by the Executive alone and thus there was a need of an impartial tribunal for deciding such disputes. At the same time the disputes between the Centre and the Provinces, between Centre and the States and the Provinces and States interse were also decided by the Government of India even when it was a party to the dispute. Thus the need for judicial Review by an independent judicial body was felt.

Federal laws which were applicable throughout the area of federation were interpreted differently by the judicial forums in various states and provinces. These varied interpretations of the same law led to wide spread uncertainty and a strong need was felt for a judicial forum which would bring about uniformity in interpretation of the federal laws.

An All India Judicial tribunal, independent of any external subordination, was viewed as one of the facets of independence from the British rule during the movement for independence of our country. It was advocated that the constitutional picture could not be regarded as complete if it did not provide every Indian with a complete right of appeal within his own country.

The stage thus having been set for the journey, the idea was propelled into to the next orbit.

Refusal of the call.

Explaining the next step Campbell explains that the hero often first refuses the call to adventure. In psychoanalysis terms, this reflects the clinging to infantile needs for security. The mother and father are the figures preventing true growth and transformation.5 The idea of establishment of a all India judicial tribunal mooted by Sir Hari Singh Gour also had to go through the "refusal of the call syndrome" and for some very valid reasons.

 

The possibility of not having judicial talent, both at the Bar and on the Bench of the proposed Supreme Court, as comparable to that of the Judicial Committee of the Privy Council was a cause of concern. It was felt that the proposed Supreme Court would not be able to match the high standards set by the Judicial Committee of the Privy Council. One of the members of the Assembly opposed the Court as suggested by Sir Hari Singh Gour on the ground that such a court will be a mere travesty on the Privy Council, lacking alike in dignity and in its glorious traditions and its calm and detached atmosphere.

The most eminent critic of the proposed Supreme Court, however, was Pandit Motilal Nehru, who observed that "in a country where the executive and judicial functions are combined, where a controversy has been raging for years past over the separation of these two functions without any results, a country where there are radical discriminations in the administration of criminal justice, it is not a country to have a Supreme Court within its own borders. A distance of six or seven thousand miles between the highest court of appeal and the Government of India is none too long."

The establishment of the Supreme Court was also opposed on the ground of expenditure which will have to be incurred on its establishment and its functioning. It was argued that such court established with the tax payers money would be used only by the rich and powerful to get their disputes resolved.  It was projected as a luxury which would be used by the rich at the expense of the poor. It was also felt that the proper time for setting up a Supreme Court would come when the country attains complete independence.

One very interesting objection to the establishment of the Supreme Court was that establishment of such court would affect the independence of High Courts. It was argued that the judges of High Court, in order to get elevated to the Supreme Court, would give judgment in favour of the establishment responsible for their elevation.

Supernatural Aid.

For those who have not refused the call, the first encounter of the hero-journey is with the protective figure who provides the adventurer with amulets against the dragon forces he is about to pass. Campbell states that what such a figure represents is the benign, protecting power of destiny. Having responded to his own call, and continuing to follow courageously as the consequences unfold, the hero finds all the forces of the unconscious at his side. 6

When the idea of the Supreme Court mooted by Sir Hari Singh Gour was not finding support from many quarters, "supernatural aid" came in the form of Mohandas Karamchand Gandhi. In the year 1926 the Gour resolution received support from a significant quarter when M.K.Gandhi observed that "it has been a painful surprise to me observe opposition to Sir Hari Singh's very mild and very innocent proposal, but we have lost all confidence in ourselves." Gandhiji added "I have some little experience of the Privy Council cases, and it is my firm belief that the members of the Privy Council are not free from political bias and on highly intricate matters of custom , in spite of all their labours, they often make egregious blunders. The Gour resolution was also supported by the distinguished liberal Tej Bahadur Sapru in the year 1926. Mrs. Annie Besant had also supported the idea of establishment of the Supreme Court in the Commonwealth of India bill which was present unsuccessfully upon the House of Commons in the year 1925 and again in 1927. Sir Shankaran Nair a former High Court judge, for the first time, moved a "Resolution re Establishment of a Supreme Court" in the Council of States.

The demand for an all India judicial tribunal received a major boost when the Committee constituted by the All Parties Conference to consider and determine the principles of the Constitution for India, in its report dated 10th August 1928 recommended establishment of the Supreme Court of India.  The report made detailed recommendations in respect of the appointment of judges and the jurisdiction of the Supreme Court. The Supreme Court was to have original jurisdiction to decide matters referred to it by the Governor General in Council, matters between provinces and matters arising under the constitution and involving its interpretation. The Supreme Court was to exercise its appellate jurisdiction as prescribed by the Parliament.  Though finality in respect of decisions of the Supreme Court was recommended, the report also recommended appeal to the King in Council in cases where the Supreme Court certified that the case ought to be determined by the King in Council. As luck would have it, the Chairman of the Committee was Shri. Motilal Nehru.

All these "protective figures" provided the idea of establishment of the Supreme Court with amulets against the dragon forces and kept the idea alive.

The crossing of the first threshold.

Once set off on an adventure, the hero encounters a point where they are further away from the world of comfort and familiarity than they have ever been before. This aspect of the heroic monomyth, writes Campbell, parallels the dangers and uncertainties of growing out of childhood and away from the protection of one's parents.7

The debate on the idea of the Supreme Court not only travelled far off physically from the Central Legislative Assembly and Council of State in India to the Round Table Conference at London, but also conceptually over the fundamental nature of the Court/s to be established.

An announcement was made by the representatives of Indian States in the Indian Round Table Conference in London in November 1930 that the States were prepared to federate with British India provided that the proposed federation was independent of British Control. This announcement necessitated a formation of a Federal Court, for which all the delegates agreed.  However this event also introduced a conflict in respect of the nature of jurisdiction to be exercised by such Judicial tribunal.

The issue of establishment of an all India judicial tribunal was thoroughly discussed in the third session of the Round Table Conference held during 17th November 1932 to 24th December 1932.

In introducing the discussion, Sir Tej Sapru referred to the fact that general agreement had been reached in previous discussions that some sort of a Federal Court was necessary to interpret the constitution and to decide constitutional disputes between the Federation and the Provinces and between the units of the Federation. He suggested that in the interests, both of economy and efficiency, there must be only one Court which might sit in two divisions for the decision of Federal issues and of appeals from High Courts in India respectively. He and his colleagues wanted both a Federal and a Supreme Court but not two separate Courts. As regards Criminal appeals, his view was that appeals to the Supreme Court should be allowed only in cases of capital sentences and then under certain well-defined conditions. He felt that the new constitution would not be complete without both, a Federal and a Supreme Court.8

Sir Akbar Hyadri, expressing the general view of the States delegation, stated that it was essential that the Federal Court should be a separate and distinct entity. According to him a Federal Court was a constitutional necessity, while a Supreme Court was not a matter of immediate importance, and, in any case, was the concern of British India alone. In his opinion a Federal Court was a Federal essential and the question of a Supreme Court on the other hand was merely a question of supplementing the judicial system of British India. The opposition of the States delegation to formation of a combined Federal and Supreme Court was premised on the basis that the same was seen as attempt by the Central Government to encroach on their domain of State sovereignty.9  The States delegation was also apprehensive that the combining of the Federal and Supreme Court would burden the Court with matters falling within the jurisdiction of the Supreme Court and the same would affect the effective functioning of the Federal Court's jurisdiction.

Sir Tej Sapru did not agree with the conception of a Federal Court as put forward by Sir Akbar Hydari and insisted that that the Statute should provide for the constitutional powers and functions of a Federal and Supreme Court, the latter as a final Court of Appeal for British India. Attempt was made by Sir Maurice Gwyer and Sir Claud Schuster to resolve the said dispute by proposing that the Civil Appellate Jurisdiction of the Supreme Court be restricted by increasing substantially the value of the subject matter of appeals which could be brought before the Supreme Court. Establishment of an independent Court of Criminal Appeal for British India was also suggested to reduce the work load of the combined Federal Court and the Supreme Court. 10

However as the difference of opinion could not be resolved it was decided that it would be of no advantage to appoint a Committee of the Conference to consider the question further.11

The three sessions of the Indian Roundtable Conference resulted in widespread agreement among the parties involved that the Federal court was imperative to interpret the new Constitution and to serve as a forum for the decision of disputes between the Federation and its constituent units. On the other hand, the conference reports indicate seemingly irreconcilable differences of opinion over the question of the supreme appellate tribunal for British India. However one thing was certain. The idea of establishment of an all India judicial tribunal had "crossed the first threshold".

The Belly of the Whale

In many myths, Campbell writes, after the hero passes the first threshold and its initial challenges to his physical and psycho spiritual person, he is  immediately swallowed, either symbolically or literally. There, in the belly of the beast that consumed him, the hero again achieves new depths of courage, fights his way out, and emerges with a strong sense of physical, psycho spiritual power.12

The Government of India Act, 1935 was the "belly of the whale" in which the idea of establishment of an all India judicial tribunal fell into.

The seeds of diminished authority of the appellate jurisdiction of the proposed Supreme Court were sown by the Joint Committee on Indian Constitutional Reforms constituted in 1933. Sir Samuel Hoare, the Secretary of State for India proposed a unified Federal and Supreme Court and suggested that in addition to original jurisdiction of the Federal Court to decide disputes between the Federation and its constituent units, the Appellate Jurisdiction of the Federal Court be extended to include cases involving interpretation of federal laws so as to secure uniformity in their interpretation. He also advocated that Appeals from High Court decisions in Criminal matters shall not be considered by the Supreme Court but a separate Court of Appeal be established for the same. The Suggestion of Sir Samuel Hoare to empower the Federal Court to hear appeals from State and Provincial High Court decisions relating to interpretation of  federal laws  was acceptable to the States only on the condition that such decisions of the Federal Court would only be in the nature of an opinion and not binding on the states. The report of the Joint Committee on Indian Constitutional Reform was published in November 1934. It was recommended that if the Federal Legislature decided to establish a Court of Appeal for British India this would most conveniently be affected by an extension of the jurisdiction of the Federal Court. It was also recommended that the appellate jurisdiction of the Federal Court be extended to include the interpretation by State and Provincial High Courts of Federal laws. However the States were given a choice to submit to the appellate jurisdiction of the Federal Court.

The deliberations and the discussions in respect of establishment of an All India Judicial tribunal fructified in the form of the Government of India Act 1935. Part IX consisting of sections 200 to 218 dealt with the Federal Court. Though the demand of the States for a separate Supreme Court, distinct form a Federal Court was not accepted, the Jurisdiction of the Federal Court in regards to the states was severely restricted.

The Federal Court was conferred with Original Jurisdiction to decide any disputes between the Federation and any of the Provinces or any of the Federated States, concerning the interpretation of the Government of India Act, 1935. The Act separately dealt with the Appellate Jurisdiction of the Federal Court in respect of High Courts in British India on the one hand and High Court in Federated States, on the other. As far as High Courts in British India were concerned, the Federal Court was given the authority to hear appeals from any judgment, decree or final order passed by such courts, subject to a certificate issued by the High Court stating that a substantial question of law relating to interpretation of the Government of India Act, 1935 was involved in the case. A provision was also made to prefer appeal to the Federal Court by seeking it's Leave to Appeal where such certificate was not issued by the High Court. Direct Appeal from the High Court to the Privy Council were barred. The Federal Legislature was empowered to enact a law for expanding the appellate jurisdiction of the Federal Court in respect of High Courts in British India, permitting Appeals to be filed in the Federal Court without certificate of the High Court. The Caveat imposed on the legislative power of the Federal Legislation was that the value of the disputes involved in such appeals should be more than 15,000/- Rupees and the leave to Appeal was granted by the Federal Court.

While dealing with the Appellate jurisdiction of the Federal Court over the High Court in Federated States, the Government of India Act, 1935 treaded cautiously and provided for safeguards to dispel any apprehension of the Federated States that the Federal Court was in any manner an attempt to encroach on their Sovereignty. An appeal from the decision of the High Court in the Federated State lay before the Federal Court only if it pertained to the question of interpretation of the Government of India Act, 1935. The exercise of the such appellate jurisdiction by the Federal Court was further circumscribed to the extent permissible by the instrument of accession or the provisions of agreement entered into by such Federated States in relation to the administration in that State of a law of the Federal Legislature. An appeal to the Federal Court was to be by way of special case to be stated for the opinion of the Federal Court by the High Court of the Federated State. Where in any case the Federal Court required a special case to be stated or re-stated by, or remit a case to, or order a stay of execution in a case from, a High Court in a Federated State, or require the aid of the civil or judicial authorities in a Federated State, the Federal Court was required to cause letters of request in that behalf to be sent to the Ruler of the State, and the Ruler then forwarded such communication to the High Court or to any judicial or civil authority as the circumstances required. The Law declared by the Federal Court was though binding on all courts in British India, however in respect of the Federated States, the law declared by the Federal Court, only pertaining to the application and interpretation of the 1935 Act or any matter with respect to which the Federal Legislature had power to make laws in relation to the Federated State, was binding on such Federated State.

The Government of India Act, 1935 did not give a character of Supreme Appellate Authority to the Federal Court by making it's decision appealable to the Pricy Council. The decisions of British Indian High Court, were still appealable to the Privy Council, in certain circumstances. The Federal Court was also not a court of criminal appeal. Besides the opposition of the states to the establishment of a Supreme Court for British India, there were a couple of factors responsible for a creation of a diminished all India Judicial tribunal under the 1935 Act. However greater strides in the direction of judicial autonomy were not affected by the Government of India Act of 1935 largely because the demand for change or reform in the higher judicial structure was not accorded a prominent place on the agenda of the Indian nationalist demands. That greater significance was attached to other more primary institutional and political reforms explains in part this attitude of the nationalist leaders. But it seems that equally as important factor was the high regard in which the Privy Council was held by Indian leaders of this period. 13

The road of Trials

This is a stage of heroes journey, Campbell writes, in which he encounters the series of challenges that must be overcome in order for his journey to continue.14 The journey of the Federal Court from its day of establishment on 1st October 1937 to 26th January 1950,  when the Federal Court was replaced by the present Supreme Court of India, was the phase where various limitations of the Federal Courts Jurisdiction came to fore. However despite those limitations, the Federal Court performed yeoman service in strengthening the concept of an all India Judicial tribunal.

The Federal Court was inaugurated on 1st October 1937 with Justice Sir Maurice Gwyer as its Chief Justice and Justice Sir Shah Muhamad Sulaiman and Mukund Ramrao Jayakar as puisne judges. During the ten years in which the British were responsible for appointing judges of the Federal Court, the Chief Justice was always English and the puisne judges at all times a Muslim and a Hindu.15  The Federal Court in it's existence of about more than 12 years gave 135 decisions and 4 advisory opinions. The Court was in session on an average of less than 30 days per year. This paucity of judicial business is explained largely in view of the very limited powers conferred upon the Federal Court by the 1935 Act. The other major factor responsible for the limited role played by the Federal Court during its existence was the non formation of the anticipated federation which was the reason for establishment of the Federal Court. The court was given an exclusive original jurisdiction in disputes between the Central Government and the constituent units, but the failure of the all India Federation to come into being meant that the full scope of this jurisdiction was never exercised. The Federal Court was called upon only 3 times to exercise its original jurisdiction. None of the three decisions handed down by the Federal Court in exercise of it's original jurisdiction merit classification as either of great public importance or of long term significance. The Federal Court also had an advisory jurisdiction, but was called upon only four times for advisory opinions. The court exercised a limited constitutional appellate jurisdiction which accounted for over 90% of the cases which were decided by the Federal Court.

Section 205 of the 1935 Act made a provision for an appeal to the Federal Court from any judgement, decree or final order of the High Court in British India, if the High Court certified that the case involved a substantial question of law as to the interpretation of the 1935 Act. In the absence of a certificate, the Federal Court was unable to interfere since it possessed no inherent powers which would give it a revisional jurisdiction over the High Court decisions. Under section 205 the Federal Court possessed no inherent power to entertain an application for special leave to appeal from cases in which the High Court had refused to issue a certificate. Furthermore, should the High Court refuse the certificate, the Federal Court had no authority to investigate the reasons for such refusal. There was no obligation on part of the High Court to offer reasons which prompted this refusal. The limitations on its jurisdiction were further augmented by the Federal Court itself by criticizing certain High Courts on a number of occasions for granting certificates which the Federal Court believed should not have been issued.16

However, the Federal Court on various occasions made efforts to enlarge its jurisdiction by liberally interpreting the provisions of the 1935 Act. The Federal Court held that the words "judgment, decree or final order" contained in section 205 of the 1935 Act, did not limit its appellate jurisdiction to civil cases, for it could hear criminal appeals also. The 1935 Act had made no provision for the exercise of any criminal appellate jurisdiction by the Federal Court.17

In many appeals which reached the Federal Court the constitutional issue was so obscure and remote as to cause one to conclude that the raising of "constitutional issue" in the High Court was often a tactic employed by a clever counsel who wanted his case heard by other forum. As a result, a number of "constitutional appeals" were hardly such, for often a constitutional issue was raised only in order to secure an appeal to the Federal Court. Furthermore, in some of the cases which reached the Federal Court under section 205, counsel for the appellant did not even raise in the Federal Court the constitutional issue which was very basis of the appeal from the High Court decision, and instead argued other points of law and fact. Implicitly, the Federal Court approved of this tactic and, in a very real sense, encouraged it from the very outset. As a result, the Federal Court decided civil and criminal appeals in which the raising of the constitutional issue served only to blur the line which delimited the boundaries of the respective jurisdiction of the Federal Court and Privy Council. In other words there were cases in which the Federal Court virtually exercised jurisdiction allotted to the Privy Council, i.e., appeals were decided by the Indian Tribunal which, except for an obscure constitutional issue, otherwise would have gone from the High Court to the Privy Council.18

Despite the various, inherent and self imposed limitations, on its jurisdiction, the Federal Court decided cases involving great public importance concerning the validity of the sedition, preventive detention and special criminal Court ordinances and legislation promulgated or passed during World War II by the Governor  General and the Central Legislature. All the important ordinances and enactments which owed their existing to the war in Europe and Asia or to the nationalist movement in the subcontinent were tested before the Federal Court under its constitutional appellate jurisdiction. In the celebrated case of Keshav Talpade versus The King Emperor19, (later reversed by the Privy Council.) Rule 26 of the Defence of India Rules, which authorised detention without trial, was held to be ultra vires the rulemaking powers conferred on the executive by the Defence of India Act. However merely six days after this decision, the Governor general promulgated an ordinance, the effect of which was to extend the rulemaking power of the central government under the Defence Of India Act so as to cover the terms of rule 26 thus nullifying the decision of the Federal Court. The decision of the Federal Court declaring invalid the Special Criminal Courts Ordinance (II of 1943) also met the same fate. However, it is essential to observe that though these decisions thwarted the executive only temporarily, in no instance did the executive ignore or disregard the decision of the Federal Court. On the contrary, each decision was accepted as binding upon the executive, and the judicially determined effects in these measures were corrected or rectified by subsequent ordinances.20

In the wake of Independence and the partition of the subcontinent there was communal violence and widespread criminal and otherwise disruptive activities. In an effort to cope with these and related problems, many of the provinces of independent India passed or promulgated public safety or public order enactments and ordinances, all of which utilised the device of preventive detention. The validity of several of these measures was tested before the Federal Court. The Federal Court also dealt with legislations pertaining to agrarian problems faced by agricultural tenants, whose validity was impugned by various vested interests. However in the majority of such cases the Federal Court did not find anything unconstitutional about these enactments.21

The role of Federal Court during this critical period in modern Indian history, though clearly limited, should not be underestimated. Its decision did cause the alien rulers to be less oblivious of the rule of law and accordingly, less arbitrary than they otherwise would have been. No government, alien or indigenous, relishes frequent court rulings that its measures are arbitrary and unconstitutional. The fact that only on 4 occasions the Privy Council granted Special Leave to appeal against the decisions of the Federal Court clearly goes to show that the statutory subordination of the Federal Court to the Privy Council did not mean, in practice, that the Privy Council treated the Federal Court as an inferior tribunal whose decisions required frequent scrutiny and revision. The Privy Council was content to accept the vast majority of Federal Court rulings as sound and proper decisions. Thus, for all practical purposes, the Federal Court, within the limited sphere of its jurisdiction, was a supreme judicial tribunal, and it statutory subordination to the Privy Council was certainly not a crucial factor in an assessment of its role.22

Atonement with father.

Encounter with the father is a symbol of initiation- of leaving youth and safety behind. When the child outgrows the safety of the mother's breast and turns to face the world of specialized adult action, it passes, spiritually into the sphere of the father.  This stage of a Hero's journey, as Campbell indicates, is a key point in the transformation of the Hero from a being composed of physical/worldly desires and impulses into a being with the ability to shape those impulses in order to accomplish spiritual ends. The Hero is on a journey towards unification with the source of all things.23

The Judicial Committee of the Privy Council was the guiding light a pole star for the development of legal system in India under the British Rule. The immense faith in its impartiality and excellence, which the judicial Committee of the Privy Council enjoyed, was reflected in the fact that all attempts for having an all India Judicial tribunal, never sought a total disassociation or disconnection from the Judicial Committee of the Privy Council. The Judicial Committee of the Privy Council epitomised the "safety of the mother's breast" to the infant idea of an all India Judicial tribunal.

The Abolition of Privy Council Jurisdiction Act, 1949 cut the umbilical cord between the Judicial Committee of the Privy Council and Indian Judicial System. Sections 208 and 218 of the Government of India Act, 1935 were repelled and from the appointed day, the jurisdiction of His Majesty in Council over any court or tribunal within the territory of India was barred. From the appointed day, the Federal Court, in addition to the jurisdiction conferred on it by the Government of India Act, 1935, and the Federal Court (Enlargement of Jurisdiction) Act, 1947, was conferred the same jurisdiction to entertain and dispose of Indian appeals and petitions as His Majesty in Council had immediately before the appointed day.

On the one hand the Indian judicial system was in a way orphaned and robbed of its guiding light because of this disassociation from the Judicial Committee of the Privy Council, while on the other hand it gave an opportunity to the said system to develop itself into a robust mechanism of dispensation of justice. Thus the idea of all India judicial tribunal had outgrown the safety of the mother's breast and was ready to face the world of specialized adult action.

Apotheosis.

Apotheosis is the highest point in the development of something. In this stage seemingly opposite characteristics or traits are infact both parts of one whole.  Integration of apparently opposing forces. Campbell argues that that there is no difference between life and transcendence, that the one is in the other and that the one leads to other.24

Impending independence of the Country turned out to be the key point for the transcendence of the idea of all India Judicial tribunal. This was the time when the Federal Court gave way to the Supreme Court or rather Federal Court lead to Supreme Court. The laying down of the path, on which the Court was to stride in independent India, had begun much prior to the actual date of independence. The Constituent Assembly appointed a 5 member Committee to prepare a report regarding changes which should be made in the central judiciary, after independence. Taking note of the jurisdictional limitations of the Federal Court and its impact on its functioning, the Committee in its report dated 21/05/1947 suggested that the jurisdiction and powers of the successor to the Federal Court should be much broader than the jurisdiction and powers then being exercised by the Federal Court. The Committee then went on to define the contours of the jurisdiction of the Supreme Court much on the same lines as is provided for in the Constitution of India. The recommendations of the Ad Hoc Committee were endorsed by the Union Constitution Committee in its Report submitted on 21/07/1947. The said report was discussed in the Constituent Assembly.

The Constituent Assembly debates reveal that the issue of Union Judiciary was exhaustively debated. More than the nature of Jurisdiction which the Supreme Court would exercise, the debate revolved around the independence of judiciary. Mr. K.T. Shah initiating the debate argued that it was of the utmost importance that the Judiciary, which is the main bulwark of civil liberties, should be completely separate from and independent of the Executive, whether by direct or by indirect influence. In order to maintain the independence of judiciary, the power to appoint judges was crucial. Mahboob Ali Baig Sahib Bahadur pointed out that under the proposed constitution the President would be the constitutional Head of the executive. And the constitution envisages what is called a parliamentary democracy. So the President would be guided by the Prime Minister or the Council of Ministers who are necessarily drawn from a political party. Therefore the decision of the President would be necessarily influenced by party considerations. It is therefore necessary that the concurrence of the Chief Justice is made a pre-requisite for the appointment of a Judge of the Supreme Court in order to guard against party influences that may be brought to bear upon the appointment of Judges.  Dr. B.R. Ambedkar opposed the said view and observed that "those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent, person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that is also a dangerous proposition." Mr. K.T. Shah, to maintain the independence of the judiciary, also suggested that whether during his tenure of office, or in the ordinary course of judgeship or even on retirement, there should be a constitutional prohibition against his employment in any executive office, so that no temptation should be available to a judge for greater emoluments, or greater prestige which would in any way affect his independence as a judge.

Age of retirement of the Supreme Court judges took a considerable time of the Constituent Assembly. Jaspat Roy Kapoor arguing for retirement of judges at the age of 60 submitted that "sometimes, we have found High Court Judges-and I say this with due respect to them-we have found them sleeping and snoring when the learned advocate is going on speaking." Countering the said argument, Pt. Jawaharlal Nehru gave the example of Einstein and stated that "I do not know what his age is, but certainly it should be far above sixty; and Einstein is still the greatest scientist of the age. Is any government going to tell him, "Because you are sixty, we cannot use you, you make your experiments privately"?"

The issue of qualification for appointment of Supreme Court judges was discussed and besides the category of High Court Judges and Advocates a third category of "distinguished jurist" was added from which appointments to the post of Supreme Court judge can be made. The issue of seat of the Supreme Court, payment of salary of judges, their pension, procedure of removal etc also engaged the attention of the Constituent Assembly.

Having attained its highest point, the actual transcendence of the idea of the all India judicial tribunal happened on 26th November 1949 when the Constituent Assembly adopted the Constitution of India, and it came into effect on 26 January 1950.

The ultimate boon

Ultimate goal of the hero's journey states Campbell is a connection with the eternal. The ultimate boon manifests as the hard won prize given to the striving hero. Ultimate point in a hero's journey is the union of the life of the spirit with the life of the flesh.25

The journey of the idea of an all India judicial tribunal finally culminated in the form of the Supreme Court of India, "the ultimate boon". On the 28th of January, 1950, two days after India became a Sovereign Democratic Republic, the Supreme Court came into being. The inauguration took place in the Chamber of Princes in the Parliament building which also housed India's Parliament, consisting of the Council of States and the House of the People. It was here, in this Chamber of Princes, that the Federal Court of India had sat for 12 years between 1937 and 1950. This was to be the home of the Supreme Court for years that were to follow until the Supreme Court acquired its own present premises.

High Expectation and faith was reposed in the judiciary by the framers of the constitution. The Judiciary was seen as an extension of the Fundamental rights guaranteed in the Constitution for it was the Courts, that would give the Rights force. The judiciary was to be the arm of social revolution, upholding the equality that the Indians had longed for during the colonial days. The Courts were also idealized because, as guardians of the Constitution, they would be the expression of the new law created by Indians for Indians. The Courts were therefore widely considered one of the most tangible evidences of independence.26

Over the years the Supreme Court has not only lived up to the expectations but has often surpassed it. However on some occasions it has failed in its endeavour to live up to the lofty standards set by itself. Though the journey of the Supreme Court is not within the scope of the present work, however the author is tempted to quote Shri Gobind Das27 who has succinctly captured the said journey in the following words;

"The Court has throughout sought to be a defender of the rights of the people against excesses of the executive. Faced with a liberal and enlightened executive it sought to cooperate with it, confronted with an aggressive and bellicose one the courts stepped aside, and when the executive was weak or negligent the courts were obliged to step in to ensure that the needs of the people were met. Vicissitudes in the fortunes of successive executives perpetually required the court to readjust its position, and often the Court's approach was dependant on the leadership of the Court" .

The Court will keep facing new challenges and will keep rising to meet those challenges. However the grundnorm for the Court is to ensure, that the majesty of the constitution reverberates across the lengths and breadths of our motherland, it bubbles from our rivers and oceans, it boomerangs from our hills and mountains, it serenades our households from the trees, it sprouts from our institutions of learning, it tolls from our sanctums of prayer and to those who bear the responsibility of leadership, let it be a constant irritant.28 Only then the Supreme Court will continue to be the ultimate boon.

Footnotes

1. The Author is a practicing advocate in the Supreme Court of India. The Author would like to acknowledge that the article is based on the contents of George H. Gadbois, Jr.  Supreme Court of India The Beginnings. Edited and Introduced by Vikram Raghavan and Vasujith Ram, Oxford University Press and The Hero with a Thousand Faces, by Joseph Campbell.

2. Book Summary: The Hero with a Thousand Faces, by Joseph Campbell.   www.shortform.com

3. http://warriormindcoach.com

4. Jinnah's case for a Supreme Court. A.G. Noorani, Frontline, Print edition, October 23, 2009

5. http://warriormindcoach.com

6. http://warriormindcoach.com

7. http://warriormindcoach.com

8. Report presented by the Secretary of State for India to Parliament by Command of His Majesty January, 1933 on Indian Roundtable Conference (Third Session) 17th November 1932 to 24th December 1932.

9. Ibid

10. Ibid

11. Ibid

12. http://warriormindcoach.com

13. George H. Gadbois, Jr.  Supreme Court of India The Beginnings. Edited and Introduced by Vikram Raghavan and Vasujith Ram, Oxford University Press.

14. http://warriormindcoach.com

15. The Federal Court of India: 1937-1950 George H. Gadbois, Jr. The Indian Law Institute.

16. Ibid.

17.  Ibid

18.  Ibid

19. (1943) F.C.R. 49

20. The Federal Court of India: 1937-1950 George H. Gadbois, Jr. The Indian Law Institute.

21. Ibid.

22. Ibid

23. http://warriormindcoach.com

24. http://warriormindcoach.com

25. http://warriormindcoach.com

26. The Indian Constitution-Cornerstone of a Nation, Granville Austin, Oxford University Press.

27. The Supreme Court: An Overview, Gobind Das, Supreme but not Infallible, Oxford University Press.

28. Observations of Chief Justice David Kenai Maraga of Kenya's Supreme Court in the case of Raila Amolo Odinga (2017).

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