January 5, 2023

Judiciocratic Veto: The Mystery of Elevation, Designation and Basic Structure Doctrine

Written By: Ayush Anand & Shubhendu Anand

Introduction.  

Under the Indian Constitution, legislature, judiciary and the executives are the three pillars of the State. It is based upon certain doctrines which has established rule of law based modern democratic societies. Some of the examples of such principles are a). Separation of power, b). Doctrine of check and balance and c). Transparency in the state affairs.

To keep a check on three pillars of the government it has been provided with an accountability mechanism amongst each other. Executive is accountable to the legislature and judiciary both. Judiciary is also accountable to the legislature. Similarly, the power of the legislature is also checked by the judiciary as it cannot make any law which is ultra-vires. But finally, it is only the legislature which has been made accountable to the people which has elected it to rule over them. Therefore, judiciary and executive both are accountable for the legislature and ultimately, it is only the legislature which is answerable to the people.

The focus of this article is on two aspects: One, is the Parliament fulfilling its role with respect to the judiciary and two, whether the Supreme Court is meeting its mandate with due observance of the above said basic democratic principles of the governance model adopted in our Constitution?

 24th Amendment

Article 368 as adopted by the Constituent Assembly was debated as Draft Article 304 of the Constitution on 17th September 1949. After debating this provision, it was adopted without any change.[1] Article 368 has been through three amendments: the 7th, 24th and 42nd Amendments. These were necessitated to maintain the supremacy of the Parliament in view of some judgments passed by the Supreme Court curtailing power of the Parliament to amend the Constitution. The 24th Amendment stated: (i) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.”[2]

The power to amend gives the Constitution the capacity to cater to the changing needs of society and to evolve organically. The wide powers given by the 24th amendment thus gave Parliament the power to overcome the judgment passed by the Supreme Court in Golaknath Case (1967). The Constituent Assembly debates indicate that the original framers of the constitution were well aware of the consequences of having a rigid Constitution. It was never their intent that the Supreme Court should be the final arbiter to decide whether an amendment made under Article 368 is valid or otherwise on Constitutional parameters. At that time, Members were even against allowing State Governments any say in exercise of this power by the Parliament, but in deference to the federal structure of the state, ratification by state clause was accepted by all.

Basic Structure Doctrine

Rigid Constitution comes with its own problems as seen by the example of the Constitution of the Republic of Ireland, which requires the consent of the people through Constitutional Referendum, before any amendment can be made.[3] Considering the vastness and population of India, a referendum clause would have been counterproductive, which is why this power has been left to be exercised by the elected Parliament, without any limitation. Hence the ratio laid down in Golaknath Case that Parliament cannot amend Part III of the Constitution was overruled in 1972 in the Kesavananda Bharati case[4] by affirming the Constituent power of the Parliament under Article 368 and that the Act made under Article 368 is not a ‘law’ as mentioned under Article 13. However, the Kesavananda Bharati case also introduced the doctrine of the Basic Structure of the Indian Constitution, and held that this cannot be abrogated, even by a Constitutional Amendment.

What constitutes the Basic Structure now includes an ever-expanding list, which the Supreme Court has taken upon itself to determine, on a case to case to basis. In this series, independence of judiciary was also recognised as a basic feature of the Constitution under the doctrine of Separation of Power in Second Judges Case of 1993, i.e., SCAORA Vs. UOI[5].

Appointment of Judges

Vide Article 124, every judge of the Supreme Court is to be appointed by the President after consultation with the Chief Justice of the Supreme Court as the President may deem necessary for the purpose. In First Judges case of 1982, i.e., S. P. Gupta Vs. UOI[6], the Supreme Court, held that under Article 124, the word “consultation” does not mean concurrence. The President was thus not bound to make a decision based on the consultation of the Supreme Court. This meant that the appointment of judges is a function to be exercised by the President (through executive) as per the principle of natural justice that no one should be the judge on his own cause for accountability of the judges under the Doctrine of Checks and Balances.

However, this majority view was overruled in SCAORA Vs. UOI (supra), also known as the ‘Second Judges Case’, wherein a nine-judge bench overruled the decision given in S. P. Gupta case (supra) and gave primacy to the Chief Justice of India (CJI) over the President on appointment of judges and transfer matters by holding that the word ‘consultation would not lessen the primary role of the CJI in judicial appointments and started interpreting it as concurrence by relying upon the doctrine of separation of power and independence of judiciary. This has later been formalised in the form of Collegium System in 1998 in Third Judges case and since then, the five senior most judges in the Supreme Court are appointing judges of the Supreme Court and High Courts and having the final say in transfer matters also. Therefore, elevation to the bench from the bar since 1993 has become the sole function of the senior most judges of the Supreme Court or Juristocrats of the Supreme Court. It must be noted that this practice of judges appointing judges is unique to India and exists in no other country.

Invention of Basic Structure Doctrine: Permissible Limit of Amendment

In a constitution which makes no separate provision of total revision but simply prescribes the machinery to amend the Constitution, can such power of amendment include the power to make total revision and substitute the Constitution by another? The Supreme Court, by inventing the concept of ‘un-amendability of the basic structures’ by way of interpretation has held that certain essential parts of our Constitution are so basic that its amendment will change the character of the Constitution itself and hence cannot be amended and that Parliament does not enjoy absolute Constituent Power under Article 368 for this purpose.

But what if the Constitution was required to be amended fundamentally. How would we go about amending the same, without a formal procedure? Some countries have overcome this problem by providing separate provisions for revision in their Constitution. The Constitution of Switzerland provides for referendum before initiating partial amendment or repeal/total revision of the Constitution. The Constitution of West Germany (1949) has a provision that states that if the existing constitution of 1949 is to be replaced in toto or to be replaced by new one, it can be done only by a plebiscite of the ‘German people’ while the partial amendment is left by Article 79 in the hands of Federal Legislature. However, the basic principles contained in Arts. 1-20 are not subject to any amendement. Traces of the Doctrine of Basic Structure adopted by the Supreme Court of India and the necessity behind such adoption can be found here. On the scope of Art. 79(3) it was held by the German Court that The purpose of Art. 79 para 3 is a check of the legislators amending the Constitution to prevent both abolition of the substance or basis of the existing constitutional order, by the formal legal means of amendment and abuse of the Constitution to legalise a totalitarian regime.”

In the Indian Constitution such power is deliberately absent, and it is not a mistake. The Supreme Court can bar any amendment to the Constitution which it deems to be affecting the basic structure of the Constitution. But what if such an amendment was required? Will it not be the prerogative of the people of India to decide the same by referendum and not the Supreme Court? The judiciary cannot be the final authority to decide on our Polity. This is a matter that can only be exercised by the true representative of people.

The Conflict of two Doctrines

In Keshvananda case, Sikri, C.J. held that the doctrine of basic structure will act as a safety valve against the arbitrary use of amending power by Parliament. This certainly serves a great purpose in safeguarding the freedom and liberty of the citizen in a case of a totalitarian regime like the emergency imposed by the Indira Gandhi government for 21 months between 1975-1977. But what if the courts start applying the principle of doctrine of basic structure in every case against the popular will of the country and starts interfering with the power of legislature in violation of doctrine of separation of power itself under the garb of independence of judiciary? Should not the Doctrine of Checks and Balances apply to the judiciary too?

Additionally, what constitutes ‘independence of Judiciary’ and when can we say that such independence is being violated or will be violated? Is the judiciary immune to follow the fundamental basics of a rule of law based democratic country, which is the very foundation of its power? Will this not lead to a new form of aristocracy in our country where juristrocrats will have a veto power on deciding the polity & broad policy of the nation?

The Supreme Court itself has already held in Keshavananda Case, State of Bihar V. Bal Mukund Sah,[7] and then in I R Coelho V. State of Tamil Nadu[8], that the ‘Principle of Separation of Powers between Legislature, Judiciary and Executive is part of ‘basic structure’. It is hence apparent that these two doctrines are in severe conflict with each other.

Legislation should always be a business of political will of the people in a democratic political society. If the judiciary also starts legislating, then it will not only make law more confusing but would also amount to breach of doctrine of Separation of Power as held in a judgment in the year 2020 in the case of Dr. Ashwini Kumar Vs. UOI & Anr[9]. This can but lead to ‘judicial aristocracy’ where law starts emanating from a selected few intellectual of the Constitutional Courts.

Parliament, working under the Constitution, cannot also change the basic element of the same such as substituting democracy with monarchy or the federalism enshrined in our Constitution as rightly observed by the Sikri C.J. in Keshvananda case. What is needed then is a fine and calibrated balance between judicial powers barring Parliament from making specific new amendments to the Constitution. However, in all other cases, they must have the power to legislate on behalf of the citizen as per their will and their need, which is very essential for organic stable growth of the society and law.

Today what constitutes those certain basic features of Constitution, which are un-amendable and for which Parliament can’t exercise its power, is uncertain and confusing which can only be decided on case-to-case basis as per the satisfaction of the Supreme Court. In Ashok Kumar Thakur V. Union of India (2008) 6 SCC 1; the Court observed that to determine if a constitutional amendment violates the basic structure, a two-step Effect Testas laid down in I. R. Coelho case is to be applied on a case-by-case basis and it has to be examined in each individual case keeping in mind the scheme of the Constitution…”. So, today it’s a complete judicial discretion to hold any amendment in Constitution valid or invalid on the basis of doctrine of basic structure. How then do we deal with judicial reforms, which are a pressing need today?

Brief History

Judicial interpretation of the powers vested in Article 368 first came to the fore in 1951, within a year of the Constitution coming into force, when the Constitution (First Amendment) Act was passed. The amendment sought to curtail the Right to Property guaranteed by Article 31. Its constitutionality was challenged and the matter was decided by a 5 Judge bench of the Supreme Court in Sankari Prasad Singh Deo v. Union of India[10]. The judgement held that Fundamental Rights are also subject to the amending power of the Parliament under Article 368. The Court distinguished between the Ordinary Legislative Power and Constituent Power and held that this is a constituent power and not ordinary legislative power. The judgement went on to state that…the terms of article 368 are perfectly general and empower Parliament to amend the Constitution, without any exception whatever. Subsequently, in Sajjan Singh V. State of Rajasthan[11], the Apex Court, in a majority judgement, held that ‘amendment’ includes any change and not necessarily a change by way of improvement. Hence it would include repeal or substitution.

This issue was again considered when the 17th amendment was challenged and heard before an eleven Judge bench in Golak Nath V. State of Punjab (1967) 2 SCR 762;  though the majority did not give categorical answer regarding the scope of Art. 368, a view was expressed (obiter) by some Judges that it should not go to ‘the extent of abrogating the present Constitution and substituting it by an entirely new one. In this case it was held that no provision of Part III or Fundamental Rights can be altered by an amendment under Article 368. Thereafter, to provide solution and overcome the difficulty caused due by the Golaknath case for enabling agrarian reforms & to bring right to property outside the ambit of fundamental rights, the ambit of the amending power under Art. 368 was sought to be clarified by enacting the Constitution (24th Amendment) Act, 1971 which, inter alia, inserted cl. (1) in Art. 368, containing the words amend by way of addition, variation or repeal any provision…’ The validity of this Amendment Act was unanimously upheld by the Special Bench in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

The language used by the several Judges who constituted the majority in the Keshavananda case was not identical. The common ratio however was that the limitation to the power conferred by Art. 368 came from the very meaning of the word ‘amend’. Justice Khanna observed in Para 1427: The words amendment of this Constitution” and the Constitution shall stand amended” in Article 368 show that what is amended is the existing Constitution and what emerges as a result of amendment is not a new and different Constitution but the existing Constitution though in an amended form. The language of Article 368 thus lends support to the conclusion that one cannot, while acting under that article, repeal the existing Constitution and replace it by a new Constitution.” 

Similarly, the limitation of the amending power was observed by Justice Mathew in Para 1567 as also by other judges. Justice Mathew summed up his conclusion in Para 1162, stating that… Parliament could under Article 368 amend Article 13 and also the fundamental rights, and though the power of amendment under Article 368 is wide, it is not wide enough to totally abrogate or what would amount to an abrogation or emasculating or destroying in a way as would amount to abrogation of any of the fundamental rights or other essential elements of the basic structure of the Constitution and destroy its identity. Within these limits, Parliament can amend every article. In this view of the scope of the amending power in Article 368, I hold the Twenty-fourth Amendment valid, for it has the same amending power as it existed before the amendment.”

However, contrary to the above majority view, another proposition, advanced by some other Judges (Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud JJ.) though in minority, negates any implied restriction to be imposed on the powers of the Parliament with respect to Article 368 and held it as against the wish of the framers of our Constitution. Ratio of the arguments can be summarised as observed by Justice Dwivedi in Para 1888 as under:

The grants of legislative power are ordinarily accorded the widest amplitude. A fortiori, the constituent power in Article 368 should receive the same hospitable construction. The word amendment” should be so construed as to fructify the purpose underlying Article 368. The framers of the Constitution have enacted Article 368 for several reasons. 

  • First, the working of the Constitution may reveal errors and omissions which could not be foreseen by them. Article 368 was designed to repair those errors and omissions.
  • Second, the Court’s construction of the Constitution may not correspond with the Constitution-makers’ intention or may make the process of orderly government difficult.
  • Third, the Constituent Assembly which framed the Constitution was not elected on adult franchise and was in fact not fully representative of the entire people. Fourth, at the apex of all human rights is the right of self-preservation. People collectively have a similar right of self-preservation. Self-preservation implies mutation, that is, adaptation, to the changing environment. It is in the nature of man to adjust himself to the changing social, economic and political conditions in the country. Without such adaptation the people decays (sic) and there can be no progress.

Justice Dwivedi, after analysing Constituent Assembly Debates and Constitutional Jurisprudence worldwide against the implied limitation being imposed on Article 368 in the form of basic structure, observed that Article 368 is the master, not the slave of the other provisions. Acting under Article 368, Parliament is the creator, not the creature of the Constitution for the organic and natural growth of the society as per the need of every generation. Para 1890 goes on to state: It is difficult to believe that those who had fought for freedom to change the social and political organisation of their time would deny the identical freedom to their descendants to change the social, economic and political organization of their times. The denial of power to make radical changes in the Constitution to the future generation would invite the danger of extraordinary constitutional changes of the Constitution.

The Doctrine of Basic Structure

With a narrow margin of 7:6, it was held in the Keshvanandas Case that there are certain basic features of the Constitution which are un-amendable and Parliament can’t exercise its power under Article 368 on similar line as of Constituent Assembly to amend Basic Structures of the Constitution’ and it can only be done by replacing the existing Constitution. Three modes have been suggested to replace the existing Constitution or amend the basic features: (a) Complete Revolution (b) Parliament converting itself into a Constituent Assembly & (c) Referendum/Plebiscite.

After Keshvanandas Case the scope of Parliamentary Power to amend the Constitution under Art. 368 have been curtailed and came under the purview of judicial scrutiny, whether it is violative of basic structure of the Constitution or not.  According to Sikri, C.J. the ‘basic structure’ was built on the basic foundation i.e. the freedom and dignity of individual; He observed in (As per Shelat & Grover JJ.)

Para 582. ….. If the historical background, the preamble, the entire scheme of the Constitution, relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure. (These cannot be catalogued but can only be illustrated):

(1) The supremacy of the Constitution.

(2) Republican and Democratic form of government and sovereignty of the country.

(3) Secular and federal character of the Constitution.

(4) Demarcation of power between the Legislature, the executive and the judiciary.

(5) The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV.

(6) The unity and the integrity of the Nation. 

After Golak Nath Case no fundamental right could be taken away or abridged. But After Keshvanandas Case it is for the Court to decide whether a fundamental right is a basic structure or not. In Indira Gandhi V. Raj Narain (AIR 1975 SC 2299), the Supreme Court added the following features as ‘basic structure’ to the list of basic features laid down in Keshvanandas Case:          

  1. Rule of Law
  2. Judicial Review
  3. Democracy, which implies free and fair elections
  4. Jurisdiction of Supreme Court under Article 32.

Further in Minerva Mills Ltd. V. UOI (AIR 1980 SC 1789); the Hon’ble Supreme Court by 4:1 majority struck down clauses (4) & (5) of Art. 368 brought by 42nd Amendment Act, 1976 to overcome the doctrine of basic structure. It has been struck down on the ground that these clauses destroyed the essential feature of basic structure of the Constitution. The Court held that the following are also the basic features of the Constitution:

  1. Limited power of Parliament to amend the Constitution
  2. Harmony and Balance between fundamental rights and directive principles
  3. Fundamental rights in certain cases
  4. Power of judicial review in certain cases.

Doctrine of Basic Structure as it Stands Today

After the re-affirmation and extension of the applicability of the doctrine of Basic Structure in the Minerva Mills Case, it is now evident that so long as the decision in Keshvanandas Case is not overturned by another full bench of the Supreme Court, any amendment of the Constitution is liable to be interfered with by the Court on the ground that it affects one or other of the basic features of the Constitution.

Independence of Judiciary and Collegium system for appointment of Judges

In a recent case challenging the Constitutional validity of 99th amendment to the Constitution which paved the way for NJAC, Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1; the Supreme Court has struck down the amendment brought with overwhelming political consensus to bring transparency in judicial appointments as an alternative to collegium system on the basis of violation of independence of judiciary being one of the basic structure of the Constitution by majority of 4:1. It has held indirectly that collegium system is a basic feature of our Constitution! But it is flying on the face of the doctrine of Separation of Power, the Doctrine of Check and Balance and transparency in all public affairs of the State including judicial appointments.

However, the dissenting view delivered by Justice Chelameshwar also held independence of Judiciary as a part of basic structure but observed that the 99th Amendment was not violative of any of such basic features of the Constitution and indeed was necessary for increasing the efficiency and accountability of the Judiciary. In his dissenting view Chelameshwar J. precisely tried to balance both conflicting doctrines in Para 1212: Primacy of the opinion of judiciary in the matter of judicial appointments is not the only means for the establishment of an independent and efficient judiciary. There is abundance of opinion (in discerning and responsible quarters of the civil society in the legal fraternity, jurists, political theorists and scholars) that primacy to the opinion of judiciary is not a normative or constitutional fundamental for establishment of an independent and efficient judiciary…” 

Judicial Reform: The Mystery of Elevation and Designation

On careful analysis the minority view taken by Justice Chelmeshwar appears more correct. Independence of judiciary will not be compromised if the executive or parliament have a say in the appointment process. On the contrary, it will increase transparency and confidence of the people in its process. The 99th Amendment with the National Judicial Accountability Bill was brought to fill the legislative vacuum created after adoption of the Collegium System to codify the process of appointment of judges. The common aspiration of the people was in its support to start with this judicial reform as there were allegations regarding methods being adopted for elevation of few selected classes of the advocates to the Constitutional Courts.

Opacity in the issue of representation among the judges is a matter of great concern, which can easily be assuaged by adopting basic democratic principles adopted to establish the Rule of Law for executive and legislative wing of the State. The issue of designation as senior advocate by the Constitutional Courts is also marred with doubts of favoritism. To become a senior advocate, there is an impression that one has to be very close and known to the judges. Differentiation in the legal profession, as created under the British System between Barristers (UK law Graduates) and Vakils (Indian law Graduates), continues today under Advocates Act, 1961, as Senior Advocates and Advocates.

Today, overall, the Constitutional Courts are rightly under the accusations of opacity and favoritism to give good career prospects to a few selected class, which is continuing to enjoy the independence of judiciary in their own benefit. Therefore, the mystery of elevation to the benches and designation as a senior advocate by the Juristocrats needs to be solved. In judicial appointments and designations both we should start applying the legal principle propounded by Lord Hewart, the then Chief Justice of England in Rex Vs. Sussex (1924) “Justice must not be done but also be seen to be done”, with respect to fairness and transparency in elevation and designations.

Conclusion

In the light of the above discussion, it can be said that the basic structure doctrine lays down a vague and uncertain test. Can anything be called ‘basic’ which is not prone to any definite definition and of which even its creator is not sure about its contour? Further, the basic rational behind an amending provision in any Constitution is to provide an opportunity to the future generations to make suitable adjustments in it and thus bypass the fear of revolt/Constitutional breakdown. If this is the position, then how can it be assumed that certain basic provisions of the Constitution would never require amendment?

History has seen primarily three forms of government, viz monarchy or autocratic dictatorial regimes, aristocratic forms of government, and democratic governance models. Occasionally, in the timeline of history, we find one form of government yielding to another. Inefficient and bad democratic model of governance during the times of Socrates resulted in the rise of autocratic empires in Europe following the teachings of Aristotle. Monarchy of China and Czars of Russia succumbed ultimately to the communist models of governance in China and in the then USSR. Similarly, colonial imperialism gave way to the modern democratic rule-based governance model in USA and Bharat. Which system is better over the other is hugely contested, the entire cold war being based on these fault lines. Even today, it plays a crucial role when we see continuous reflux in the polarity of the world. But history is testament to the fact that conversion from one governance model to the another, is invariably due to bad governance, inability to provide stability and justice and failure to meet the popular will of the people.

We need to avoid the apparent conflict between the Judiciary and Legislature. The reconciliation between ‘Basic Structure Doctrine’ and ‘Doctrine of Separation of Powers’ can only be achieved if the different organs of the State adopt the ‘Doctrine of Self Restraint’. The institutions which enjoy infinite power can only maintain such power if such institutions can preserve its dignity and respect in a democratic society in the long run. Arbitrary and wanton exercise of such extraordinary powers may in future limit the scope of such power itself.

Author Brief Bio: Ayush Anand & Shubhendu Anand are Advocates, Supreme Court of India.

References: 

[1] https://www.constitutionofindia.net/constitution_of_india/amendment_of_the_constitution/articles/Article%20368

[2] See Section 3 of the Constitution (Twenty-fourth Amendment) Act, 1971

[3]https://www.citizensinformation.ie/en/government_in_ireland/irish_constitution_1/constitution_introduction.html

[4] (1973) 4 SCC 225

[5] (1993) 4 SCC 441)

[6] AIR 1982 SC 149

[7]  (2000) 4 SCC 640

[8] (2007) 2 SCC 1

[9] (2020) 13 SCC 585

[10] AIR 1951 SC 458

[11] AIR 1965 SC 845

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