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Upping the Ante

As the centre’s calls for reforms in the system get strident, questions of primacy of the executive over the judiciary have raised concerns. Objections by the executive betray a sense of insecurity.
04:21 PM Jan 21, 2023 IST | India Legal
upping the ante
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By Sanjay Raman Sinha

The row between the judiciary and the centre took a new turn after Vice President Jagdeep Dhankhar criticised the former for the Kesavananda Bharati case verdict which delineated the basic structure doctrine. Dhankhar held that the verdict set a bad precedent as it put a curb on the powers of the Parliament to amend the Constitution. In the same breath, he criticised the scrapping of the National Judicial Appointments Commission (NJAC) Act in 2015 by the Supreme Court. This comment gains traction in the light of Law Minister Kiren Rijiju’s subsequent insistence to include a government nominee in the collegium.

Rijiju tweeted: “I hope you honour Court’s direction! This is precise follow-up action of the direction of Supreme Court Constitution Bench while striking down the National Judicial Appointment Commission Act. The SC Constitution Bench had directed to restructure the MoP of the collegium system.’’

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At this point, the big development was the Supreme Court collegium’s stand on the five lawyers it had recommended for benches of different High Courts. The top court has reiterated its decision on the elevation recommendations and has made public government and its own responses on three of those. The collegium has made it public that it will not back down on these recommendations.

Meanwhile, the vice-president and law minister’s proposition ruffled political feathers. In response to the tweet, Delhi Chief Minister Arvind Kejriwal said: “This is extremely dangerous. There should be absolutely no government interference in judicial appointments.”

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Dhankhar’s statement where he disagreed with the Supreme Court ruling which said that Parliament can amend the Constitution, but not its basic structure was criticised by Congress leader P Chidambaram. He tweeted: “The Hon’ble Chairman of the Rajya Sabha is wrong when he says that Parliament is supreme. It is the Constitution that is supreme. The basic structure doctrine was evolved in order to prevent a majoritarian-driven assault on the foundational principles of the Constitution.”

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Former Supreme Court judge Justice MK Sharma told India Legal: “The judgment was delivered in 1973. Now, after 50 years, questioning it is not proper. The verdict is a statute and as long as it is not overruled, it cannot be said to be wrong. The decision was rendered in 1973, and later on during the Emergency even the judiciary was attacked. I remember a statement then of LK Advani where he said: ‘When the media was asked to bend, it crawled.’ The same thing would definitely happen if we accept the current proposition.”

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It is a fact that the apex court scrapped laws which went against the basic structure doctrine. In 1973, the Kesavananda Bharati verdict enunciated the basic structure doctrine, asserting the primacy of the Constitution. It held that the Constitution cannot be amended if it goes against the grain of the basic structure.  

A major test of the doctrine took place in 1975 when the Congress government brought in the 39th Amendment, which was passed during the Emergency and sought to place the election of the president, vice-president, prime minister and the Speaker of the Lok Sabha beyond the pale of judicial review.

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In 1971, political leader Raj Narain challenged Prime Minister Indira Gandhi’s election by filing a petition in the Allahabad High Court. As the Court struck down the election, she challenged the verdict in the Supreme Court. While she got a conditional stay from the Court, she brought in the 39th Amendment granting herself immunity from any election result verdict.

In Indira Nehru Gandhi vs Raj Narain (1975), the Supreme Court applied the basic structure doctrine to strike down Clause (4) of Article 329-A, which was inserted by the 39th Amendment. Later on in the Minerva Mills case of 1990, the Court declared void two changes made to the Constitution by the 42nd Amendment. The Court declared them to be in violation of the basic structure. It added judicial review as an element of the basic structure. 

In essence, basic structure is a shield which the judiciary has been using to protect the majoritarian overdrive to change the essence of the Constitution. To question the Kesavananda verdict now is a politically coloured move fraught with danger.

Former law secretary PK Malhotra told India Legal: “All the powers of the legislature as well as the judiciary are provided by the Constitution. The Constitution is framed by ‘we, the people of India’. With respect to the statement made by the vice-president, he is an experienced and learned member of the Bar, but judgments should be challenged and overruled through due process of law following well established judicial mechanisms. Not abiding with the Supreme Court’s judgment will lead to an unhealthy constitutional democracy.”

The doctrine’s constitutional basis was first developed in Golaknath case of 1967 and later reworked in the Kesavananda case. Over the years, laws and executive actions have been subjected to the basic structure review. It is no gainsay that the doctrine has provided rigour to the judicial review process. However, the doctrine has been used sparingly as only five laws have been scrapped against the doctrine’s scrutiny. Yet, objections and reservations raised by the executive betray a sense of insecurity. Perhaps a more clear exposition and enumeration of the doctrine will help. But as it has evolved with time, a natural evolution would also be more proper.

Prof Dr Ranbir Singh, former vice chancellor, NLU, Delhi, told India Legal: “In the case of Kesavananda Bharati vs State of Kerala, Chief Justice SM Sikri gave an illustrative list of features that qualified as a ‘basic structure’ of the Constitution. This included features such as supremacy of the Constitution, separation of powers, republican and democratic forms of government, parliamentary democracy, secularism, federalism, fundamental rights, mandate to build a welfare state and unity and integrity of the nation amongst others. Being a judicial innovation, the lack of a clear and unambiguous definition in the text of the law is not surprising. Nevertheless, it would not be in the interest of a deliberative and inclusive democracy to have an exhaustive list of features which could be listed as a basic structure of the Constitution. That will necessarily have to be interpreted in the social, political and constitutional context of the time.”

Another point of conflict between the judiciary and the executive of the day is of judicial appointments. In 2014, the Parliament enacted two legislations establishing the NJAC: the Constitution (Ninety-ninth Amendment) Act and the National Judicial Appointments Commission. Act (NJAC Act).

The Ninety-ninth Amendment via Article 124A provided that the NJAC would consist of the chief justice of India, the next two seniormost judges of the Supreme Court, the law minister and “two eminent persons”. Here, the government worked itself into the decision making body of judicial appointments. 

On October 16, 2015, the Supreme Court gave a landmark judgment in Supreme Court Advocates-on-Record Association vs Union of India wherein it held unconstitutional the Ninety-ninth Amendment and the accompanying legislation which established a National Judicial Appointments Commission. Here again, the basic doctrine was invoked. 

Incidentally, in no democracy is the power to appoint judges fully with the judiciary. In India, the judiciary wrested this power in a series of cases known as the “Three Judges” cases. Here, the power to appoint judges was progressively transferred to the judiciary. The wider context of the judges’ cases was the tug-of war between the judiciary and the executive to gain supremacy.

The bitter experience of the Emergency and the manipulation of judges was a wakeup call for the judiciary to ramp up its citadel. Mass transfer of judges and irrational superseding had created resentment.  

The 1981 First Judges case gave an opportunity to the judiciary to recover lost ground. The successive two cases made the judiciary supreme in matters of judicial appointments. The Second Judges case gave back primacy to the judiciary. It held that “consultation” would mean “concurrence” with the judiciary. The Third Judges case crystallised the collegium system in its present form. Here, too, the basic structure doctrine of separation of powers came into play.

In India, the conflict between the judiciary and the government has always been low key and the manner of criticism, reverential. But now a change of tone and tenor is being perceived from the side of the government. 

As demands for more intervention in judicial appointments are being made by the executive and powers to curb amendment powers of the government questioned, a similar saga is unfolding in Israel where the new right wing government is trying to push reforms which would make it easier for parliament to overturn Supreme Court rulings and control judicial appointments. This has led to mass protests by Israeli citizens.

Today, as the judiciary faces an onslaught from the government for lack of transparency of the collegium system, it has a chance to once again mend its systems to make the appointment process more transparent and rigorous. 

Malhotra held: “The appointment of the Election Commissioner requires transparency, so why not judicial appointments? What are the procedures and qualifications that are to be considered? These need to spelt out. When the Supreme Court struck down the NJAC Act, it had stated that certain changes are needed in the collegium system. So changes should be made for the better.” 

Also Read: SC Collegium reiterates stand on 5 lawyers

Over the years, the judiciary has taken on the government on thorny political issues and in the process, not only asserted its supremacy, but affirmed its status as the guardian of constitutional values. However, this time, it will be interesting to see how the judiciary tides over this constant onslaught for institutional change.

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