Formal and informal amendments: Two case studies

The first case study analysed in this section concerns a formal constitutional amendment (the 99th Constitutional Amendment coupled with the NJAC Act), whereas the second involves no formal constitutional amendment but merely executive orders and ordinary legislation (the JKR Act) which have the effect of amending the Constitution.

10.3.1 Formal constitutional amendment: Continuing

battle over judicial appointments

Judicial independence has been a key issue in the Fourth Judges case as well as in several other previous cases relating to the appointment and/or transfer of judges.^[704] It is clear from the detailed debate as well as constitutional provisions regarding the appointment, tenure, salaries, retirement age, and removal of the judges that the framers of the Indian Constitution considered judicial independ­ence an important aspect of Indian constitutionalism.^[705] Special attention was paid to the procedure of appointment as “an independent judiciary begins with who appoints what calibre of judges.”^[706]

However, the appointment and transfer of judges have always been under controversy, inviting protracted litigation, from the very beginning.^[707] In the First Judges case, the Court held that the independence of the judiciary is a basic fea­ture of the Constitution and that there must be “full and effective” consultation between all the constitutional functionaries on the question of appointment. The majority rejected the suggestion that the Chief Justice of India has any primacy in recommending a person for appointment to the High Court or the Supreme Court. As the government misused its primacy in appointing judges, the issue again came before the Supreme Court in the Second Judges case in which it over­ruled its decision in the First Judges case on the point of primacy.

This judgment received a mixed response^[709] and in view of the difficulties in applying the collegium system, the President referred the issue to the Supreme Court to clarify certain doubts.^[710] The Court clarified those doubts in the Third Judges case: it held that an opinion of the Chief Justice of India not formed according to the majority judgment in the Second Judges case was not binding on the government. The Court also raised the strength of the collegium from three to five judges. The collegium is expected to make its decision by consensus but no appointment to the Supreme Court could be made unless the appoint­ment is in conformity with the opinion of the Chief Justice of India. However, the appointment must not be made if it is favoured by the Chief Justice but not by the majority of the collegium. In other words, the Court tried to refine the collegium system, including to avoid the exercise of power solely by the Chief Justice of India.

It is clear that the Supreme Court in the Second and Third Judges cases “in effect” amended Article 124 and other provisions of the Constitution by super­imposing a position which was rejected during the drafting of the Constitution.^[711] The apparent justification for this position was to exclude the possibility of the executive making political appointments and transferring or superseding incon­venient judges.^[712] However, such instances of the executive’s misuse of power were not new: they existed even prior to the First Judges case.

However, controversies around the appointment and transfer of judges con­tinued along with growing incidents of misconduct and corruption among the judges with no effective mechanism of accountability. Against this background, suggestions for the establishment of a National Judicial Commission to deal with the issues of appointment and misconduct of judges were made, including by the National Commission to Review the Working of the Constitution.^[713] In 2003, a Bill to amend the Constitution and establish a National Judicial Commission (comprising the Chief Justice of India as chair, the two senior-most judges of the Supreme Court, the Union Law Minister, and a nominee of the President to be appointed on the recommendation of the Prime Minister) was moved.^[714] In view of differences about the composition of the Commission and doubts about its effectiveness, the attempt did not materialise.

Then came the 99th Constitutional Amendment of 2015, which (along with the NJAC Act) sought to replace the collegium system of judicial appointment with a NJAC and thus reverse judicial supremacy in this arena. The NJAC was envisaged to comprise the following six people: the Chief Justice of India, the two most senior judges of the Supreme Court, the federal Law Minister, and two “eminent persons” to be nominated for three-year terms by a committee consist­ing of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lower House of Parliament. While the 2003 Amendment Bill sought to pre­serve judges' majority in the Commission (3 out of 5), the 99th Constitutional Amendment brought down the judges' presence to 50 per cent (3 out of 6).

The Supreme Court in the Fourth Judges case, by a 4:1 majority, held the entire 99th Constitutional Amendment unconstitutional. To put it simply, the Court's reasoning was that the independence of the judiciary is part of the basic structure, judicial primacy in appointments - which is not only mandated by the Constitution but is also part of the basic structure - is required to preserve judicial independence, and judicial primacy is undermined by the NJAC hav­ing three out of six non-judicial members or the possibility of them vetoing a nominee proposed by three judges.^[715] Even if it is accepted “that the ‘manner of selection and appointment' of Judges to the higher judiciary, is an integral com­ponent of ‘independence of the judiciary',”^[716] and thus part of the basic structure, it does not follow that judicial primacy is the only “manner” to achieve independ­ence of the judiciary.^[717] The Supreme Court in the Fourth Judges case insisted on “micro-managing” what appointment process will (or will not) preserve judicial independence.^[718] It seems, from the majority's reasoning, that any other process which does not confer primacy on the judiciary in appointing judges will not be acceptable to the Supreme Court.

Chandrachud argues that the Court's decision in the Fourth Judges case exacer­bates the “disjunctures between constitutional text and constitutional practice.”^[719] I think a more problematic falsehood is that judicial primacy in the appointment of judges is sine qua non for judicial independence. By replacing executive pri­macy with judicial primacy, the Supreme Court in the Second Judges case replaced (and entrenched in the Third Judges case and the Fourth Judges case) one evil by another: the executive misuse of the appointment power was replaced with judi­cial arbitrariness in appointing judges.^[720] Although the power to appoint judges is related to judicial independence, judiciaries do not necessarily lose their inde­pendence when judges are appointed by the executive.^[721] Conversely, conferring the appointment power solely to the judiciary may not automatically ensure judi­cial independence.

To address some of these concerns, the Court in the Third Judges case expanded the collegium from the three senior-most judges to the five senior-most judges and brought in the majority rule in making recommendations. However, this tweaking did not address the inherent problems with a non-transparent self­appointing system. Although hardly anyone will disagree with the importance of judicial independence, this concept has been utilised by both the judiciary and

Constitutional politics in India 203 the executive for a secondary institutional purpose, that is, to gain supremacy in picking judges with a final say in interpreting the Constitution and judging the constitutionality of government decisions. Both sides also tend to resort to the politics of legitimacy. The Supreme Court finds support for judicial primacy in the appointment of judges, among others, in the executive’s track record of exercising the judicial appointment power for political reasons. The executive similarly contends that judicial primacy is not constitutionally legitimate. Nor is the collegium system legitimate, including because of the lack of transparency in the appointment process.

In the current situation, two broad reform options are feasible to ensure both judicial independence and transparency in the appointment process.

10.3.2 Informal constitutional amendment: Unilateral withdrawal of Jammu and Kashmir’s autonomy

Should the basic structure doctrine have a role in relation to informal constitu­tional amendments? This raises two inter-related questions about the scope of this doctrine. First, should the doctrine only constrain a constitutional amend­ment or also apply to ordinary legislation and other informal amendment path­ways? Second, should the doctrine also apply to actions of the executive and the judiciary?

Regarding the first question, it seems that the doctrine was originally meant to apply only to constitutional amendments - it had the effect of elevating the status

of certain provisions or principles to a “super constitution” in that even a con­stitutional amendment could not tamper with them. It is also arguable that the doctrine is perhaps not required for ordinary legislation because it cannot infringe any constitutional provision.^[731] This issue will not matter much if an aspect of the basic structure is also a provision of the Constitution. However, it will be consequential if the basic structure involves an abstract constitutional principle. Despite expressing a contrary view in cases such as Kuldip Nayar v Union of India,^[732] the Supreme Court has invoked the doctrine to test the constitutionality of ordinary legislation as well as executive action.^[733] If the objective of the doctrine is to preserve certain core values, the form of amendment should not matter. I will argue that the basic structure doctrine should operate as a check against all these pathways of change, because governments are using creative ways to amend constitutions, that is, without introducing any formal amendments as shown by the second case study of this chapter. In other words, we should look at both the form and the effect of an instrument of change.^[734]

Regarding the second question, although the doctrine was primarily intended to control the unlimited power of legislatures to amend constitutions, it should also constrain powers of the executive and the judiciary.^[735] If the basic structure of a constitution signifies certain core values which even peoples' representatives cannot amend while acting collectively, the executive or the judiciary may have less democratic legitimacy to amend it. As argued above, the doctrine as part of a broader scheme of checks and balances should bind all three government organs. Bringing the judiciary within the purview of the doctrine will also ensure that courts do not end up becoming a supra-constitutional institution, especially if a constitution does not specify unamendable provisions. Taking such a position would in practice mean that lawyers should be able to argue before the Indian Supreme Court that deciding a given case in a particular way may infringe the supremacy of the constitution, separation of powers, secularism, or federalism.

Krishnaswamy draws a distinction between two types of constitutional change (constitutional amendment and constitutional interpretation),^[736] and argues that the basic structure doctrine judicial review should apply to all types of state action to ensure that such action does not destroy “basic features of the constitution.”^[737] Beshara similarly sees value in utilising the doctrine as a theory of judicial review

Constitutional politics in India 205 in dominant-party democracies like India.^[738] My position regarding the scope of the doctrine articulated above is both narrower and broader than taken by Krishnaswamy and Beshara: it is narrower because the doctrine should apply only to an action which amends the text or practice of the Constitution; and it is broader because it should bind even the judiciary. The narrower scope is desira­ble; otherwise an open-ended doctrine could result in significant uncertainty if all types of state action are challenged before courts on the ground of infringing the basic structure. Such a view is also in line with the real purpose of the doctrine: to safeguard core values of a constitution from amendment. At the same time, the broader scope is vital because even non-formal pathways (including judicial interpretations) could destroy the core values of a constitution. This position also ensures that the judiciary too is subject to the rules that it develops for the other two branches of government, thus building an internal system of checks and balances in the basic structure doctrine. This, in turn, should alleviate Mehta's concerns about “judicial supremacy.”^[739]

With this analysis about the scope of the basic structure doctrine, let us now turn to the second case study illustrative of an informal constitutional amend­ment. Article 370 of the Constitution appears in Part XXI entitled “Temporary, Transitional and Special Provisions.” This part contains provisions confer­ring special status on several states. However, Article 370 - with the headnote “Temporary provisions with respect to the State of Jammu and Kashmir” - is unique, because the “State of Jammu and Kashmir is the only State in the Union of India which negotiated the terms of its membership with the Union.”^[740] In other words, Article 370 embodies an accession agreement, which neither “side can amend or abrogate... unilaterally.”^[741] Although the headnote of Article 370 uses the phrase “temporary provisions,” Mustafa has argued that this pro­vision conferring a special status on Jammu and Kashmir, as well as governing the centre's relationship with Jammu and Kashmir, was meant to be permanent: “Article 370 is nothing but a constitutional recognition of the conditions men­tioned in the Instrument of Accession that the ruler of Kashmir signed with the Government of India in 1948.”^[742]

Article 370 cannot be amended by the parliament in exercise of its generic constituent power under Article 368 of the Constitution. Rather, the power to amend (or even abrogate) Article 370 lies with the executive: Article 370(3)

empowers the President of India to amend it by issuing a notification but only after “the recommendation of the Constituent Assembly of the State” of Jammu and Kashmir. In addition to Article 370, prior to the August 2019 changes, “three documents were governing the State of Jammu & Kashmir and its rela­tionship with India - the loA [Instrument of Accession], the Basic Order, and the Constitution of Jammu & Kashmir.”^[743]

Article 370 limits the parliament’s legislative power over Jammu and Kashmir “to three subjects - defence, foreign affairs, and communications.”^[744] The President of India could extend, in consultation with the government of Jammu and Kashmir, other provisions of the Indian Constitution to Jammu and Kashmir provided they relate “to the matters specified in the Instrument of Accession.” However, the “concurrence” of the said government is required to extend other provisions of the Indian Constitution. This scheme again shows the centrality of consent of Jammu and Kashmir’s government before changing the status quo. There is, however, a catch which, as noted below, the Indian government exploited.

It is worth noting that the autonomy of Jammu and Kashmir has been undermined “incrementally” by a series of President’s Orders over the years.^[745] Therefore, what separates the August 2019 President’s Orders and the JKR Act from previous actions of the central government is the “complete” abrogation of the special constitutional status and autonomy of Jammu and Kashmir. As Bhatia explains, the central government used a clever pathway to achieve this goal and overcome technical obstacles built into Article 370 to prevent its amendment eas­ily: the amendment of an Article requires the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, but no such Assembly exists any more.^[746] To overcome this difficulty, the government amended the interpretive provision of Article 367 to provide that the expression “Constituent Assembly of the State” referred in proviso to Article 370(3) shall mean “Legislative Assembly of the State.” As Jammu and Kashmir’s Legislative Assembly was under suspen­sion, a resolution by Rajya Sabha (the Upper House of the Indian parliament) - which was given the power to act as the State’s Assembly during suspension - in effect became “the recommendation of the Constituent Assembly of the State” to repeal the existing text of Article 370. Moreover, the amendment of Article 367 also provides that references to the “Government of the said State” shall be construed as references to “the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers.” In other words, the central government

Constitutional politics in India 207 repealed Article 370 by replacing strong limitations built in this provision with some symbolic limitations.

The constitutional validity of the twin President’s Orders and the JKR Act is pending before the Supreme Court. One of the arguments raised by the petitioner is that they violate three elements of the basic structure: federalism, democracy, and the rule of law.^[747] For example, “substituting the concurrence of the state with concurrence by the governor under President’s rule, is a viola­tion of democracy.”^[748] The fact that Article 370(3) required the recommenda­tion of the Constituent Assembly to amend or abrogate Article 370 implies a critical role of the “constituent power,” which is enjoyed by people of Jammu and Kashmir or their delegates specifically entrusted with such power. It was a constitutional fraud to use legal manoeuvres to deny any say to the people in a process that effectively amended the Constitution. In fact, the central govern­ment did not consciously allow any possibility of even informal consultation with people because of complete clampdown, communication blackout, and preven­tive detention of all major political leaders. Moreover, if the status of a state like Jammu and Kashmir could be demoted with such ease, the autonomy of other states would be totally at the mercy of the central government with little constitu­tional cushion (as opposed to political cushion). It is worth noting that unlike the infamous emergency of 1975, the Modi government achieved such domination during normal political times.

The August 2019 actions of the Indian government vis-a-vis the special sta­tus of Jammu and Kashmir under Article 370 could again be analysed from the perspective of the politics of supremacy and legitimacy. Who is supreme under a unique model of federalism,^[749] which tends to become unitary in times of emer­gency, established by the Indian Constitution? Could the central government erode at will the constitutionally guaranteed autonomy of states like Jammu and Kashmir without following the letter and spirit of the Constitution, or are there any effective legal checks on this power? Moreover, will the judiciary defer to the executive and let it enjoy supremacy over what Article 370 entails because of the so-called national unity and integrity at stake? The legitimacy of the President’s Orders is also suspect because these Orders were issued after a “symbolic” con­sultation with the governor, who lacks any autonomy or democratic legitimacy at the state level, or on the recommendation of an Upper House of parliament controlled by the government. As the abolition of Article 370 was part of the political manifesto of Bharatiya Janata Party,^[750] it is arguable that people gave it the political mandate to do so at the 2019 general elections. However, does this

confer legitimacy on the government’s decision or should the will of the major­ity (even if true) triumph over constitutional limitations in the absence of strong political opposition?

Analysing the constitutional politics around the basic structure doctrine, Choudhry noted that it

arose in the context of the domination of the Indian Parliament by the Congress Party, which alone, and with its allies, controlled the process of constitutional amendment. The course of the doctrine holds lessons for how one Supreme Court managed to check the power of a dominant political party through constitutional adjudication.^[751]

Times have changed and now the Bharatiya Janata Party (coupled with Prime Minister Modi) is perhaps more powerful in the parliament than Congress used to be under Nehru or Indira Gandhi. Will the Supreme Court stand up to address the assault on the rule of law as well as the federal character of the Constitution? In the past, the Indian Supreme Court stepped up in the Bommai case to prevent the central government from misusing Article 356 to take over governance in states, especially if they were ruled by an opposition political party. The August 2019 executive actions pose a single but equally significant assault on the federal and democratic character of the Indian Constitution. It is yet to be seen whether the Court will again rise to the occasion or, alternatively, find a convenient rea­soning to normalise the emasculation of Article 370.

10.4