Can judges be notched on a scale of efficiency and given the benefit of a tenure extension? While the government has reservations, the judiciary has no model to measure productivity

By Sanjay Raman Sinha

As long-winded arguments and a slow judicial process takes its toll on the huge backlog of pending cases, the whole system is weighed down by chronic fatigue which adversely impacts its stakeholders. Suggestions on ways and means to improve the productivity of the system have always included increasing the retirement age of judges. This time, however, the suggestions also stressed on productivity of judges as well.

In August 2023, the Standing Committee on Law and Personnel had submitted its 133rd report entitled: “Judicial Processes and their Reforms”, wherein it had recommended a performance appraisal system for extending the tenure of judges of the Supreme Court and High Courts beyond the existing retirement age. It recommended: “Increasing the retirement age for Supreme Court and High Court judges and amending the relevant Articles of the Constitution. Additionally, a system of appraisal may be devised by the Supreme Court Collegium to evaluate the performance and health conditions of judges before extending their tenure.”

However, the suggestion was shot down by the government on the specious logic that extending the retirement age of Supreme Court and High Court judges based on their performance may not be practical and will “further erode” the powers of Parliament and may also result in “undue favouritism”.

As of now, the Supreme Court judges retire at the age of 65 years while High Court judges retire at 62. However, there always has been a strong case to increase the age of judges. In fact, retirement age of judges had always been mulled and pondered over by the judiciary and the government alike.

The UPA government had brought a bill in 2010 with a provision to increase the retirement age of High Court judges from 62 years to 65 years. This bill was introduced in the Lok Sabha, but it was never discussed as the Lok Sabha was dissolved. Some time back, then Attorney General KK Venugopal had opined that if lawyers can argue cases lifelong, why should Supreme Court judges retire at 65? The government is quite circumspect about increasing judges’ retirement age by including competency or performance as an indicator. The government apparently tries to avoid situations where judges’ tenure or appointment gets out of its hand.

PK Malhotra, former Law Secretary, spoke to India Legal on the issue: “Keeping in view better health conditions, age expectancy, huge pendency and disproportionate number of judges to deal with these cases, there is a need to consider increasing the age of retirement of judges. However, linking the age of retirement to performance will bring subjectivity and likely to erode independence of judges in performing their duties. Article 224A of the Constitution, which was inserted by 15th amendment of the Constitution, makes provision for appointment of retired judges at sittings of the High Court. Modalities can be worked out to make use of this provision. Tenure extension based on performance is not a desirable solution as it will bring in an element of subjectivity. We already hear a lot about it in the super imposed collegium system in appointing judges in the High Courts and the Supreme Court.”

In fact, Parliament has the power to increase the retirement age of judges, but it will have to amend Article 217 of the Constitution. Also, if the strength of the court or the number of judges has to be increased, then Article 124 of the Constitution will have to be amended, which defines the power of the court. The prevailing conditions are such that there is no system to assess the work of judges qualitatively. Quantitatively the work can be measured by number of cases disposed over a particular time frame, but how to measure quality?

Aruneshwar Gupta, senior advocate at the Supreme Court, told India Legal: “There is no system to gauge the quantity or quality of work of judges. In the Supreme Court, we have either a two-judge bench or more. In the benches, either the judge is signatory or he has written the judgment. Now if we look at the judgment-signatory ratio, it signifies the quantity of work of the bench or a particular judge. If there is a three-judge bench then every judge has to have at least 33% disposal rate. If there is a two-judge bench then every judge has to have a 50% disposal rate. This will take care of quantity. If we talk of quality, we have to look at the number of judgments which have gone to the Supreme Court and have been upheld or reversed. This can form the basis of qualitative judgement analysis.”

This has to take into account the work pressure on judges. The judge-population ratio in India is 20 judges per 10 lakh people, the lowest in the world. In its 120th report of 1987, the Law Commission had stated that for every 10 lakh population, 50 judges are required. With overworked judges it will be a challenging and rather unfair proposition to impose the quality condition. Nor would a straight raise in retirement age work.

Justice Sudhir Aggarwal, former judge of the Allahabad High Court, makes this point: “We should certainly make a system wherein we can decide the quantity and quality of a judge’s work. That is why we need an appraisal system. Merely increasing the age of retirement of judges won’t work.”

If we look at the work models of foreign courts, we gain some insights. The retirement age of judges in supreme courts of many foreign nations is above 65 years. In the Supreme Court of Australia, it is 70, in the Supreme Court of Canada it is 75, in Israel it is 70, and in the United States, there is no retirement age of judges. They can serve and work till disability or death. In a study conducted in the United States, it was found that judges productivity increases by more than 25% after the introduction of mandatory retirement. With induction of younger judges, the efficiency of judiciary became better.

However, we can’t discount the fact that experience counts, and as judges mature, their body of knowledge and experience makes them more well equipped to handle cases. They also become increasingly adept in handling a particular genre of cases, and of course, cases with complex questions of law and constitutionality. The same judges who retire find a berth in tribunals and other quasi-judicial bodies and deliver quality work till late in life. Can’t such judges be retained and not retired?

Justice Narendra Chapalgaonkar, former judge of the Bombay High Court, mooted that productive, retired judges should be inducted after retirement. He said: “If some retired judges are willing, capable and efficient then the chief justice of High Court should recommend their appointment as ad hoc judges.” 

During the enactment of constitutional provisions related to the retirement age of High Court judges, TT Krishnamachary and KM Munshi had strongly opposed making retirement age above 60. They felt that judges’ productivity decreased after a certain age. Later on in 1962, the Constitution was amended to raise the retirement age of High Court judges to 62. Still later, former CJI MN Venkatachaliah had suggested in one of his reports that the retirement age should be made 68 years.

Speaking to India Legal, Justice Venkatachaliah recounted his experience in leading a highly productive team which had reduced massive pendency in record time. He said: “The problem in judiciary is in the lack of speed in the disposal of cases. We concentrated on the problem during my tenure. My team of judges did enormous work. From 1991 to 1998, in eight years, the backlog of cases fell from four and a half lakhs to 19,000. That was the collective work of all the judges. There were great judges in our time. I am not in touch with the system now, but can say that those years were very productive.”

Clearly a focussed approach can work wonders both qualitatively and quantitatively. A large number of cases can be disposed of keeping in mind the quality of disposals. All said, instead of hunting for flashes of talent and efficiency in the judges pool, it would be much better to create a productive environment under the command of good leaders, who lead their teams in short spurts of highly focussed productive assignments. A model to measure judicial efficiency needs to be developed, and high performing judges who would like to opt for tenure extension should be allowed to do so.

By Sanjay Raman Sinha

In the recently convened special session of Parliament, the Women’s Reservation Bill was passed with much fanfare and fireworks. Amidst the drama, what failed to get tabled was the much awaited Advocates (Amendment) Bill, 2023.

The Bill to amend the Advocates Act, 1961, was earlier passed in the Rajya Sabha and was to be placed before the Lok Sabha. However, after the passage of the Women’s Reservation Bill, Parliament was adjourned sine die, and the Advocates (Amendment) Bill couldn’t be tabled.

However, the intent of the government was articulated by Minister of State for Law and Justice (Independent charge) Arjun Ram Meghwal who said that the main aim of the Bill was to control touting in the legal profession. The Bill seeks to repeal certain outdated provisions of the Legal Practitioners Act, 1879, and to make “touting” a criminal offense.

A tout has been defined as a person who tries to buy the employment of a legal practitioner in return for renumeration. In court-slang, he is often called a “court bird”.

Provisions in the Bill raise the bogey of executive control over the judiciary through the backdoor as it empowers a senior district administration official (not below the rank of district magistrate) to initiate an inquiry by the local judge. It also provides for every High Court and district judge to frame and publish a list of touts. 

The Bill said: “45A. (1) Every High Court, District Judge, Sessions Judge, District Magistrate, and every Revenue-officer, not being below the rank of a Collector of a district (each as regards their or his own Court and the Courts, if any, subordinate thereto) may frame and publish lists of persons proved to their or his satisfaction, or to the satisfaction of any subordinate Court.” 

A district official (in short, the government) can actually instruct the local judge to initiate an inquiry and publish a report on touts. The prime minister-chief minister-district magistrate (PM-CM-DM) chain of command is not lost on anyone and any lawyer who is not in the good books of the government or who has taken an anti-government stand can become a target. 

Section 45 (3) of the Act specifies: “Any authority empowered under sub-section (1) to frame and publish a list of touts may send to any Court subordinate to such authority the names of any persons alleged or suspected to be touts, and order that Court to hold an inquiry in regard to such persons; and the subordinate Court shall thereupon hold an inquiry into the conduct of such persons.”

Inderjit Badhwar, editor-in-chief, India Legal, said: “Governments have always been greedy for power. This government wants to control the judiciary and the lawyers’ community. It is trying to do this now through this Act. The provision is that the district magistrate or the concerned officer can identify alleged touts and publish their names. This will make lawyers susceptible to government pressure. The advocate community will be under duress and under the control of the government.’’

Justice Bhanwar Singh, former judge of the Allahabad High Court, seconds the opinion and fears of Badhwar. “The reason for empowering the district official doesn’t seem to be there. A strong reason for this is that both the district magistrate and district judge have separate jurisdictions. The former has no control over the district judge and the High Court. The district magistrate has no right to interfere in the jurisdiction of the district judge. If someone’s name is wrongly published as a tout, a writ petition can be filed in the High Court and no one can interfere in this. The Supreme Court has also said that the writ in itself is a very powerful mechanism of the High Court.”

Another cause for concern is that it is the first time that lawyers are being brought under the criminal action jurisdiction of the police. Section 45 (6) of the Bill proposes: “Any person who acts as a tout whilst his name is included in any such list shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both.”

Justice Singh admits that touts are a nuisance and should be strictly dealt with. “There is no denying that there are touts in the legal system. They keep the advocate as a client and provide him business or cases. This is a serious problem. My experience is that in Allahabad almost all clients are approached by touts, especially those coming from remote areas to fight a case. In this context, the punishment and fine should be increased—to one year and Rs 10,000 respectively.”

The fear of being picked up by district officials and branded a tout can’t be discounted. It is lawyers who take on the might of the police and the administration and fight the injustices suffered by their clients. So clearly, there is a conflict of interest. 

So what are the safeguards available to advocates or people mentioned in the tout roster? The Bill apparently has a provision which gives a fair hearing to the accused. Section 45 (3) states: “…and the subordinate Court shall thereupon hold an inquiry into the conduct of such persons and, after giving each such person an opportunity of showing cause as provided…”

Kumar Ramesh, Honorary Secretary of the Delhi Bar Council, allays fears of wrongful prosecution and intentional targeting of individuals. He said: “Before the person is declared a tout, he will be given a chance to clarify his position. Till the time the evidence is placed before the probe committee, the person can’t be declared as a tout.”

The question that arises next is whether the Bar Council has been sidelined. Hitherto, it was the Bar Council that was authorised to take action against erring lawyers or those indulging in professional impropriety. 

Murari Tiwary, Chairman, Disciplinary Committee, Delhi Bar Council, explained: “Any person who is not enrolled in the Bar Council and who doesn’t have an advocate’s license comes under the scanner of the Council. If a person is committing a fraud, that too in the court premises, then penal action will be taken and that comes under the jurisdiction of the police. You will find at least one police post or police station in the court because the offences committed there come under the police jurisdiction and not the Bar Council’s. The Bar Council will only try those offences where an advocate who has a genuine license has committed any misconduct with the client.”  

How does the system work in foreign countries? There also the problem of “court birds” is rampant. Does the Bar Council have a say in curbing the activity of touts or is it dealt purely as a criminal matter? Badhwar, who had a long career in journalism in the US, explains: “In foreign countries, the role of the Bar Council is most important. It is not a rubber stamp. Before anyone is declared persona non grata in court or forbidden to enter its premises, the local bar council gives him a fair hearing.” 

Nonetheless, there is an apprehension in India that the role of the Bar Council is being diluted in the Bill and that it is being sidelined by the government. Former Law Secretary PK Malhotra said: “The Bar Council is not being sidelined because two lines of action are possible for advocates acting as touts. The police can take criminal action as per the Indian Penal Code, and the Council can revoke his license. If a person is a non-advocate, then he faces criminal proceedings by the police and the Bar can prevent his entry in the court premises.”

Concerns over the Bill are widespread. Vivek Subbareddy, president, Karnataka Bar Association, said: “I think the judiciary and the advocate community should carefully mull over the Bill. It is essential that a Laxman Rekha be drawn and executive interference in the judiciary be dissuaded. Judicial functions of an advocate are clearly beyond the interference of the executive. These issues have to be carefully addressed and it is essential that the Bill safeguards the interest of advocates and the administration of justice. There has to be a reform for protecting advocates’ freedom and also for giving them more freedom to argue their cases.” 

The judiciary, which means both the Bar and the Bench, should come together and examine the spinoffs from the proposed law. In the name of reigning in touts, is the judiciary being shortchanged? Is the freedom of advocates being compromised? These hard questions must be answered by a joint exercise and the government as a stakeholder in the judicial system should allay these fears.

By PK Malhotra and CKG Nair

On February 26, 2023, the media reported the first instance of sending a registered “living will” to the Municipal Commissioner, Mumbai, for record. This was five years after the Supreme Court issued guidelines allowing passive euthanasia on a prayer by Common Cause, an NGO, filed in 2005. Their prayer was for a declaration that the fundamental right to live with dignity under Article 21 of the Constitution of India is inclusive of the “right to die with dignity” and sought directions for adoption of a suitable procedure for executing a living will. This will allow a person, in sound mind and good health, to record his wish that he should not be kept alive with the help of life support systems.

A five-judge Constitution bench of the Supreme Court gave a landmark judgment in 2018 paving the way for passive euthanasia and holding that the right to die with dignity is a fundamental right. It declared that an adult human, having the mental capacity to take informed decisions, has the right to refuse medical treatment, including withdrawal of life support systems. However, stringent conditions were imposed for exercising this right.

The Indian Society of Critical Care Medicine filed an application seeking modification of the guidelines for living will. A Constitution bench of the Supreme Court on January 24, 2023, agreed and modified some of the guidelines “to make it workable”. Despite the modifications, the proposition appears to be unworkable to many who are interested in taking benefit of the process of “living will” for a peaceful exit.

The core issue here is whether, and under what conditions, a person has the right to call it a day either by him or through caregivers. This debate, covering different dimensions, has been in vogue in various jurisdictions for several decades. The basic debate is on passive euthanasia, which is when a person permanently goes into a vegetative state. Higher levels of discourse are on having a proactive living will wherein any person can prepare a will in advance, stating under what conditions he does not want to prolong life.

Switzerland, which tops ease of living, is also the most “liberal” country for ease of dying. It allows its citizens as well as foreign nationals to voluntarily seek medically assisted suicide, subject to certain minimum conditions. Even existential suffering is a legitimate reason for seeking this assistance. A few other countries and two provinces of the US allow passive euthanasia without any major constraints.

Article 21 of Indian Constitution protects life as a fundamental right. The Supreme Court has reiterated several times, including in Common Cause, that the right to life means the right to a dignified life which includes the right to a dignified death. However, while upholding this high principle, the conditions laid down fall far short of the aspirations of persons opting for dignified death.

The conditions at the stage of executing, registering, preserving and enforcing are onerous. The very involvement of local governments, both in preserving a copy and retrieving it when needed by the hospital authorities would frustrate the process.

Two medical boards—primary and secondary (the latter with a representative of the District Medical Authority)—are another bureaucratic hurdle. Differences of opinion between the two boards give filing a writ petition with the High Court under Article 226 of the Constitution as the remedy. This is a tall order for many. It is uncertain that when the time comes, all these steps will be followed and the will gets enforced.

Setting such rigorous conditions are the combined result of biases embedded in subconscious minds through centuries of socio-cultural-religious rigidities and fear of misuse of law.

Fear of misuse of law is a Damocles’ sword perpetually hanging against enacting simple laws. It forces lawmakers and judges to put multiple provisos/conditions, complicating the provision itself. Misuse of law has to be treated as a violation and dealt with accordingly. Fortifying a legal provision by several provisos would only increase the incidence of violation, while plain and simple laws might minimise them. Other disturbing ground realities of life (and death) are not taken into account while allowing only passive euthanasia and that too under rigorous conditions.

The elderly, needing maximum medication and hospitalisation, are the prime milch cows for the pharma-medical industry. This industry loves costly death and opposes the right to a will-based dignified death. An example of pharma profiteering is the reported hike in the price of the euthanasia medicine from $200 to $3,000 after two states in the US legalised euthanasia.

A voluntary legal provision is an enabler for those who like to use that right. Opposition to voluntary rights is a major restriction against individual liberty. A classic example is the overturning of the Roe vs Wade ruling in the US. Our approach to voluntary laws needs a paradigm shift in its favour.

The cost and consequences of geriatric medical care at the individual and national levels are well-known. Some 19.6% of India’s population will be above 60 by 2050. Dignified medical care to such multitudes will be a fiscal and logistics nightmare.

Look at the irony of life-death dignity. A crumbling life is so dear to the State as not to allow a simple will-based, medically assisted death. However, most of the nations allow capital punishment and abortion.

Living will is about a citizen’s right to live and die with dignity. The citizen should have the right to choose any stage/condition, not just vegetative stage, for seeking medically assisted death. A will should be executable in a simple manner with two witnesses and a registered medical practitioner/hospital. A small medical board should decide and enforce it when the specified conditions are met.

“Medical Mummification” of the living, at enormous agony and cost to the people and the nation, is not the way to uphold the fundamental right to dignified life of citizens. Serious thinking on this issue is imperative. 

—PK Malhotra is a former Union Law Secretary, while CKG Nair is a former Member of the Securities Appellate Tribunal. Their views are personal.

By Sanjay Raman Sinha

The documentary on Prime Minister Narendra Modi has raised a furore and subsequently been banned by the government. The documentary, titled India: The Modi Question, has been described by the BBC in its website as “a look at the tensions between Indian PM Narendra Modi and India’s Muslim minority, investigating claims about his role in the 2002 riots that left over a thousand dead.” Modi was the chief minister of Gujarat when the riots broke, leaving over 1,000 dead. The government has argued that internal security and public order will be disturbed by the documentary.

The government used emergency powers in the Information Technology (IT) Act to block links on YouTube and Twitter. Public screening of the documentary has also been stopped. According to the IT Act, a content can be removed if it affects the “unity, integrity, defence, security or sovereignty of India”. Days after the first episode was telecast, the government said that the film was a “propaganda exercise” and reflected a “colonial mindset”. Subsequently, the documentary was banned.

Justice Bhanwar Singh, former judge of the Allahabad High Court, while speaking to India Legal said: “We must see the intention behind the ban imposed by the government. The first question arises that these things are 20 years old. Why it is raked up today? As everyone knows, there are elections in 2024. This proves that the intention behind it is not good. Why didn’t this documentary come before? Is there any intention to target Modi? So, from that point, I can say that the intention behind it is not good and that is why the government has imposed the ban. The ban has been imposed with respect to Article 19(2) which imposes conditions to safeguard national security and sovereignty of the country.”

The international media was overtly critical of the actions of the Modi government. The New York Times, The Washington Post, Time and The Guardian strongly expressed their views against the ban and questioned the government’s commitment to freedom of expression. The New York Times wrote: “The government has not stopped at criticizing the documentary. It has also taken steps to make it difficult to view inside India, the latest intervention in the free flow of information by state machinery that carefully tends to the image of India’s most powerful leader in generations.”

As the ban got slapped, protests spread all over the country. Student groups organized film shows in campuses. Jawaharlal Nehru University, Jamia Millia Islamia bristled with defiant activity and sloganeering. The police cracked down heavily on students and stopped the show. Questions naturally got raised over the curb on freedom of speech and expression.

PK Malhotra, former law secretary, said: “Under Article 19 of the Constitution, all citizens have the right to freedom of speech and expression. Only citizens of India have basic rights as enshrined in the Constitution; these rights are not available to the people who are not citizens of India. The government also put reasonable restrictions. But, the grounds on which these restrictions are applicable are prescribed in Article 19; these reasonable restrictions are to preserve and protect the sovereignty and integrity of the state, security of the state, friendly relations with a foreign state, public order and morality. If anything covers any aspects of these, the government has the power to restrict people and put restrictions on the right to freedom of speech and expression. But, if the government misuses its power, people can approach the court and challenge the government action.”

This is precisely what happened. The matter was moved in the Supreme Court challenging the centre’s decision to block public access to the documentary. One petition was jointly filed by journalist N Ram, Advocate Prashant Bhushan and TMC MP Mahua Moitra and another was filed by Advocate ML Sharma. Hearing the plea, the apex court bench, comprising Justices Sanjiv Khanna and MM Sundresh, directed that the centre should produce the original records relating to the order banning the screening of film on the next date of hearing, April 2023.

Article 17(1) of the IT Act mandates: “The Authorised Officer shall maintain complete records of the proceedings of the Committee, including any complaints referred to the Committee, and shall also maintain records of recommendations made by the Committee and any directions issued by the Authorised Officer.” 

Furthermore, the petitioners also contended that since as per government request all the pleas challenging IT rules have been clubbed for hearing at the Supreme Court, the petition has been filed at the apex court, and not in High Court. 

Shailesh Gandhi, former central information commissioner, said: “The question is not of a documentary. The question is not of private information. This is a question of fundamental rights of the citizens of

the country.”

The documentary was banned invoking the IT Act. As per Article 16 (1) of the Act: “the Authorised Officer, in any case of emergency nature, shall examine the relevant content and consider whether it is within the grounds referred to in sub-section (1) of Section 69A of the Act and it is necessary or expedient and justifiable to block such information or part thereof and submit a specific recommendation in writing to the Secretary, Ministry of Information and Broadcasting.”

The petitioners have also raised the way in which the IT Act was invoked. Pawan Duggal, IT expert and advocate, said: “In the IT Act 2022, a number of parameters have been defined which can be interpreted in any direction. The government says that it is invoking emergency powers because the country’s integrity and security are at risk. Having such broad parameters, it’s difficult to define the security threat as stated by the government. The petition has asked for some checks and balances, because if in future government takes arbitrary decisions or arbitrary use of these emergency powers, there are chances of violating the bindings of not only people’s freedom of expression, but also their fundamental right of right to information. Thus, we have to wait for Supreme Court’s decision.”

The BBC has stood by its documentary. It had noted that it met the highest editorial standards. The BBC in its news report published in its website said that “it was committed to highlighting important issues from around the world.” It added that the Indian government was offered a right to reply, but it declined. 

Meanwhile, as the ban stands to be heard at the Supreme Court, broader questions like application of IT rules and right to freedom of expression also demand an answer.

SC rejects plea to ban BBC in India

A petition by Hindu Sena chief Vishnu Gupta seeking a complete ban on BBC in India was shot down by the Supreme Court on February 10. The petition was filed in the background of BBC’s documentary on PM Modi and allegations links to the Gujarat riots in 2002.

Calling the plea “entirely misconceived”, the Court wanted to know how can a documentary affect the country and said the plea had no merit before dismissing it. The lawyer for the petitioner argued that BBC was “deliberately maligning India’s image”. The plea also wanted NIA to probe into the “conspiracy” behind the documentary.

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.’’

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.”

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.”

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.”

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.

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.” 

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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.