Basic structure doctrines and judicial turf protection: Unamendable judicial supremacy in judicial appointments in India
Much ink has been spilled describing the emergence, evolution, and transnational migration of India's basic structure doctrine.[994] The doctrine is premised on the idea of implicit rather than explicit constitutional unamendability, whereby even
Eternity clauses as tools 269 in the absence of a formal eternity clause in the constitutional text, an unamendable set of constitutional commitments is read into the constitution as forming its core or constitutional identity.[995] The basic structure doctrine has had a rich “career” since its early days in the Kesavananda Bharati case,[996] directly or indirectly influencing constitutional developments throughout the world and most notably in neighbouring Bangladesh and Pakistan,[997] and most recently in Malaysia and Singapore.[998] It has influenced constitutional debates and adjudication even where the doctrine has so far been rejected.[999]
Given this extensive scholarly activity on the Indian basic structure doctrine, only a brief account of one of its aspects will be highlighted here.
Among the various elements the Indian Supreme Court has read into the constitutional basic structure has long been judicial independence. It is not the principle of judicial independence and its centrality to Indian constitutionalism that has been problematic, but the way in which the Indian Supreme Court has chosen to operationalise this principle in practice. The so-called National Judicial Appointments Commission (NJAC) or Fourth Judges case concerned a review of the Ninetyninth Amendment to the Indian Constitution which sought to replace the collegium system of judicial appointments with an NJAC and thereby remove judicial supremacy in this arena.[1000] The NJAC would retain as members the Chief Justice of India and two other senior justices, but would also include the union minister of law and justice, and two “eminent persons.”[1001] Two members could veto an appointment. The reform was meant to increase transparency and accountability in judicial appointments.[1002]The Indian Supreme Court struck down the amendment. It argued that by removing judicial supremacy in the judicial appointments process, the amendment
would undermine judicial independence and therefore the basic structure doctrine. The Court interpreted the constitutional duty of the Indian President to consult with senior justices in the judicial appointment process, enshrined in Article 124(2) of the Constitution, as implying a mandatory duty to follow that advice. The Court's concern with averting any political involvement in judicial appointments has been shown to contradict recent Indian constitutional realities: the President's cabinet had actually had the final say in the matter until this was changed via the Supreme Court's case law in 1993.[1003]
Thus, the case operated a significant doctrinal and conceptual move from the uncontested protection of judicial independence as part of the basic structure to its equation with judicial supremacy in the judicial appointments procedure. Rehan Abeyratne has found that India is unique in affording such primacy to senior justices and that this system must be understood in the country's unique historical context.[1004] Some readings of the NJAC case see it as less about judicial turf protection and more as an attempt to preserve the principle that parliamentary action remains subject to justification.[1005] However, it is difficult to avoid the conclusion that the Indian Supreme Court sought to guard the status quo for institutional rather than principled reasons. As Surya Deva shows, the outcome has been a stalemate with both the executive and the judiciary claiming supremacy in the judicial appointments process.[1006]
It is hard not to draw parallels to similar cases of basic structure doctrines being invoked to review changes to judicial appointments, as notably has happened in Bangladesh and Pakistan.[1007] As Po Jen Yap and Rehan Abeyratne have argued, it may be possible to draw distinctions between these two cases and the Indian one, insofar as in the former two, judicial intervention can more plausibly be seen as a restoration of democratic control and removal of political influence over judicial appointments.[1008]
However, similar interventions by constitutional courts reviewing and striking down changes to judicial appointments processes have also happened in constitutional systems less directly indebted to the basic structure doctrine and may be
Eternity clauses as tools 271 more worrying.[1009] For example, in 2016, the Colombian Constitutional Court struck down constitutional amendments as against the constitutional replacement doctrine originally developed in the area of executive term limits.[1010] It thereby struck down the newly created “Judicial Governance Council,” with competences in the governance and administration of the judiciary, and the “Commission of Aforados,” whose mandate includes prosecuting criminal and disciplinary offenses by senior justices. The amendments were found to contravene the principles of self-government of the judiciary, judicial independence, and the separation of powers.
The political backlash was swift.[1011] The doctrinal robustness of the court's intervention has also been challenged, given that the new institutions retained a diverse judicial membership and would have at least been plausible replacements for their predecessors.[1012] As in the Indian case, the public policy justifications behind the reform included enhancing judicial accountability, transparency, and efficiency.What these decisions illustrate is that our expectations of judicial interventions in the name of unamendability - in this case, of unamendable judicial independence principles - must be contextualised and even tempered. Understanding the basic structure doctrine and its progenies as protecting constitutionalism and democracy no longer suffices. The NJAC case and others like it remind us of the reality of judicial politics playing out in the constitutional arena. Apex courts will, under the best of circumstances, act as guardians of liberal constitutionalism, independent of political influence, and will exercise self-restraint in substantive review of amendments, only striking them down under the most exceptional circumstances. The Malaysian case law discussed elsewhere in this volume illustrates courts coming short of striking down constitutional amendments, but nevertheless making recourse to the basic structure doctrine to protect judicial review as an essential constitutional element.[1013] However, the battles over judicial supremacy in judicial appointments highlight that courts also engage in “selfdealing” and deploy doctrinal means to protect their institutional self-interest.[1014] This reality becomes even more complicated in situations of court capture and/or
institutional weakness, where such interests and the means to pursue them may even more overtly depart from doctrinal rigour and democratic constitutional principles.[1015] My intention here has been narrower: to highlight the affinity between judicial turf protection and doctrines of constitutional unamendability. Unamendability can thus be deployed by courts as a veto power against perceived attempts to diminish their influence, even where the justification for the necessity of amendment strike down is tenuous at best.
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