The Fourth Judges Case and the New Basic Structure Doctrine

The Supreme Court’s case law on unconstitutional constitutional amendments up to 2015 revealed a few distinctive features. First, although the basic structure doctrine was often applied in reviewing ordinary legislation and other forms of adminis­trative decision-making,^[659] it was seldom successfully used to dislodge constitu­tional amendments.

Second, the Supreme Court defined the basic features of the Constitution at a high level of abstraction, relying on meta-principles such as democracy, the rule of law, judicial review, separation of powers and republicanism. As P K Tripathi described it in an incisive piece published soon after the Kesavananda decision, the basic features of the Constitution are ‘mostly not concrete provisions of the Constitution, but are, instead, themselves statements of general principles’.^[662]

The Court’s approach took a turn on 16 October 2015, when it decided what can quite easily be described as amongst its most significant constitutional decisions since the turn of the century. The constitutional text provides that the President (who is advised by the executive) holds the authority to appoint judges of the Supreme Court and High Courts, in consultation with one or more constitutional functionaries, including the Chief Justice of India, Chief Justices of States, Judges of the Supreme Court, Judges of the High Courts and State Governors. Beginning from the 1970s, the Supreme Court decided a series of cases resulting in shifts in the center of gravity for the appointment of judges.

In Sankalchand Sheth,^[663] the Court interpreted the word ‘consultation’ literally, suggesting that making appointments would never require the concurrence of the constitutional functionaries that the Constitution required should be consulted.

The Supreme Court radically shifted its position when the question arose again in the Second Judges Case.^[665] On this occasion, the Supreme Court held that the opinion of the judiciary would be entitled to primacy in the appointments process. The judgment established the framework for judicial appointments by a ‘collegium’ of judges, consisting of the Chief Justice and his two most senior colleagues, which would recommend appointments to the Central Government. This framework was modified in the Third Judges Case,^[666] in which the Supreme Court expanded the collegium to include the Chief Justice and four senior judges.

The collegium system was subjected to widespread criticism in the months and years after the Second and Third Judges Cases. Scholars and commentators became increasingly concerned that the pendulum had swung too far in favour of the judiciary, and that the appointments process lacked transparency. The Prime Minister Modi government—the first in twenty-five years in which a single party secured a majority of seats in Parliament—attempted to dislodge the status quo. By a unanimous vote, the Constitution was amended to replace the collegium system with an appointments process led by a National Judicial Appointments Commission (NJAC).^[667]

The NJAC would consist of six people—the Chief Justice of India, the two most senior judges of the Supreme Court, the federal Law Minister, and two ‘eminent persons’. These eminent persons would 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.

By a four to one majority, the Supreme Court struck down the constitutional amendment in its entirety.^[668] The Court held that the amendment violated the independence of the judiciary, and unlike in previous exertions of the basic structure doctrine, could not be salvaged. The Court’s logic was that the inclusion of three non-judicial members in the NAC impacted upon the primacy of the judiciary in the appointments process. The majority noted that the political cre­dentials of the Law Minister and the lack of clarity over who the ‘eminent persons’ should be would detrimentally impact the independence of the judiciary.

Responding to the government’s argument that jurisdictions around the world were establishing appointments commissions to appoint judges, the Court made the simplistic argument that the worldwide trend was towards a greater ‘judicialisation’ of appointments processes, and the Indian system occupied the most favourable position on the spectrum.^[669] The majority also cautioned against an executive led-appointments process, which is closely associated with the excesses during the national emergency declared by Prime Minister Indira Gandhi in the 1970s.

In a dissenting opinion, Justice Chelameswar observed that the Law Minister held only one-sixth of the voting power in the NJAC and that the Minister’s membership alone would not undermine judicial independence. He also observed that sufficient safeguards were in place against the possible abuse of power in the appointment of ‘eminent persons’, and that their appointment would in any event be amenable to judicial review.

Many commentators looked upon the Fourth Judges Case as a straightforward application of existing doctrine. The argument proceeded as follows. The Supreme Court held, in Kesavananda and later cases, that constitutional amendments altering the basic structure of the Constitution would be struck down.

However, on closer inspection, it transpired that the Fourth Judges Case involved a significant departure from existing doctrine. In earlier cases, the Supreme Court had prescribed a set of meta-principles that formed part of the basic structure of the Constitution. The Court’s role was to ensure that these meta-principles were preserved.^[671] The Fourth Judges Case took a step further, by not only prescribing what those meta-principles are, but also how they ought to be achieved. As a senior lawyer practicing at the Supreme Court put it:

‘for the future of the basic structure theory, this judgment opens up frightening possibilities. Now you can forget all about overarching principles. Anything which the judges feel merely affects the independence of the judiciary can be brought in within the basic structure concept’.^[672]

For the Court to decide that the independence of the judiciary forms part of the basic structure of the Constitution was quite uncontroversial. The Court’s judgment, however, was based on an additional assumption—that primacy of the judiciary in the appointments process is indispensable for the independence of the judiciary and by implication, forms part of the basic structure of the Constitution.^[673] This was an ambitious claim. As the dissenting judgment records, there may be alternative means of protecting the independence of the judiciary, and Parliament must have a choice amongst them.

The Fourth Judges Case wasn’t simply the latest in a series of cases in which constitutional amendments were struck down since Kesavananda. Every case before 2015 involved the striking down of discrete provisions, mostly restricting judicial review. Richard Albert explains that whereas some constitutions follow the framework model in which the constitution is written at a high level of generality, others follow the operational manual model, setting out specific details.^[674] Of course, it is possible for constitutions to combine these two models, by including some framework-type provisions and other operational manual-type provisions.

The Fourth Judges Case is the first instance in which the Court has struck down a part of the framework of the Constitution. Rather than striking down a discreet provision addressing the method by which judges are appointed through the NJAC, the Court chose to strike down the appointments regime in its entirety. To be sure, the Court had a range of solutions at its disposal to avoid striking down the amendment as a whole. The Court could have defined ‘eminent persons’ narrowly, modified the process by which eminent persons were appointed, or offered an exclusive veto power in making appointments to the judges on the committee.^[675] Yet, the Court chose the nuclear option for the very first time, vastly transforming the potential of the basic structure doctrine as it is applied to constitutional amendments.

The Fourth Judges Case thus exacerbates the potential for disjunctures between constitutional text and constitutional practice. By deciding that it will not only interrogate whether prescribed meta-principles have been preserved—but also how they will be preserved—the Supreme Court decisively expanded the scope of basic structure review. This also opens up the possibility of the Court striking down framework-type provisions, as opposed to operational manual provisions, in the future.

A constitutional falsehood for a framework provision is far more disconcerting than for an operational manual provision. It is one thing, for example, for the Constitution to provide that no judicial review is available where it exists in practice. It is quite another for the Constitution to set out what is now a meaningless framework for the appointment of judges to the Supreme Court and High Courts. A casual reader of the Constitution would be misled into believing that judges of the Supreme Court and High Court are appointed by a six-member commission that was never formed.

One of the arguments raised by the Government during the NJAC case was that even if the constitutional amendment were to be struck down, that would not automatically revive the provisions of the Constitution (and the body of case law interpreting it) that it replaced.

This discussion demonstrates that constitutional provisions that no longer form part of the text can, on account of the basic structure doctrine, continue to live outside of the text. To the extent that a constitutional provision is amended and the amendment is itself struck down as unconstitutional, the original unamended pro­vision, which is now no longer formally part of the text, would continue to be ‘interpreted’ by the courts. A set of textual provisions on judicial appointments now exist as extra-textual rules, and continue to live an afterlife following its repeal.

This is precisely the opposite of what we are often used to seeing in other jurisdictions, where a conventional rule is codified into the constitutional text. In the United States, the conventional two-term limit on the Presidency was codified into the Constitution by a constitutional amendment.^[677] In the United Kingdom, the conventional rule that the House of Lords would not oppose money bills passed by the Commons, and that Parliament would not legislate for dominions without their consent, were likewise codified into constitutional statutes.^[678]

The obvious implication arising from the fact that the Supreme court lacks the power to strike an amendment out of the statute book is that Parliament may, if it chooses to, repeal a constitutional amendment that has already been struck down. There have been occasions on which amendments that have been struck down were repealed by subsequent governments. Article 329A, which was introduced into the Constitution to protect the political office of Indira Gandhi and was struck down in part by the Supreme Court, was repealed by the Janata government as a relic of the 75

emergency years.

It is unsurprising that political actors in India have not expended the capital to amend the provisions of the Constitution that have been struck down. When con­stitutional amendments are struck down shortly after they are enacted, a govern­ment that disagrees with the Court’s decision may be seen as admitting its guilt were it to repeal the constitutional amendment. Moreover, any constitutional amendment requires a two-thirds majority in both Houses of Parliament and demands the mobilization of considerable political capital. Governments would likely wish to expend that capital on other pressing matters. The per-amendment cost of repealing amendments that are struck down would reduce were a govern­ment to choose to repeal multiple amendments in one go—in the nature of a ‘great repeal bill’^{[679] [680]}—rather than each amendment individually.^[681] Third, the government may entertain a small glimmer of hope that an amendment that is struck down by one bench of the Supreme Court is later upheld by a larger bench of the Court.^[682] This is an unlikely, but not impossible, eventuality.

These constitutional falsehoods precipitated by the basic structure doctrine have implications for the rule of law. They would likely fail the first principle in Raz’s classic account of the rule of law - that laws should be ‘prospective, open and clear’ and not ‘mislead’ those who ‘desire to be guided by it’.^[683] When people realise that the constitution does not mean what it says, this disjuncture also holds the potential of causing a loss of faith in public institutions.^[684]

Constitutional falsehoods raise another concern, for they effectively exclude the citizenry from the process of constitutional interpretation. As Tushnet explains, ‘ [t] ext and purpose are the only things to which ordinary people have ready-and unmediated-access. Everything else—legal doctrine and precedents most obviously, but even original understandings—are the province of legal specialists’.^[685] Citizens must, at the least, remain prominent players in the process of constitutional interpretation.

For the most authoritative, open-access source of constitutional law to be mis­leading is a significant barrier to access. This privileges lawyers, and instills them with even greater responsibility as civic educators.^[686] The Constitution ‘is not the property of lawyers and judges alone’.^[687] The Fourth Judges Case increases the potential for disjunctures between constitutional text and practice, and places a premium on constitutional interpretation outside of the courts.

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