BASIC STRUCTURE AND THE NJAC (Fourth Judges Case)

By: Group One

The weightage of the powers in judicial appointments, traced historically, have had a shift from the hands of the executive to the judiciary. The National Judicial Appointments Commission (NJAC) was a body set up to replace the existing collegium system in India. The NJAC came into force through the 99^thamendment of the Constitution and the National Judicial Appointment Commission Act, 2014. The Amendments included the Articles 124 A, B and C which control the existing, regulation and functioning of the new system of appointment.  On the passing of the Act in both the houses, several key stakeholders in the legal field criticized the new system of appointment citing the dominance of the will of the executive over the judiciary. Consequent to this, the Court in its 2015 judgement (4^thJudges Case)held the Amendment unconstitutional as it violated the Basic Structure of the Constitution. In the following paragraphs, I will discuss group nine’s analysis of the NJAC’s constitutionality with respect to the Basic Structure of the Constitution.

Indian Politics and Judicial Appointments

The thesis of the of the presentation in this section lay in the assumption that the Supreme Court has become tied with politics. Two significant eras are said to have shaped this turn towards a political nexus: 1.) The Gandhi Era and 2.) The Desai Era.

The autocratic rule of Indira Gandhi, during what is often termed as the ‘darkest age’ lead to the enormous agony suffered by the Judiciary. Judges bent to their leader’s will because of a fear of persecution which lead to a significant political influence on judicial decisions. An important judgement that came out during the end of this period signifying a light in the end of the tunnel was Keshavananda Bharathi v. State of Kerala.

In the Desai Era, though the political nexus was reduced by a significant bit, it still existed. In the infamous Dissolution Case, a decision was passed to invalidate nine Congress State governments on the Janta’s party pursuance of the issue. Political and Legal commentators have significantly questioned the reasoning behind such a decision and the effect has often been one of perceiving the nexus as a visible one.

Judicial Appointments in India

Judicial appointments in India have changed significantly, in method, since their original form. The debate resting primarily on the power struggle between the executive and judiciary has been divided into the Four Judges Cases. In the following section, I will describe the legal position held before the 99^thAmendment through the two judges cases to provide some clarity on the Basic Structure Debate in the NJAC judgement.

The First Three Judges Cases

The NJAC when proposed would be the third major reform to the appointment’s system. Initially, as per the old Article 124, the method of deciding the appointment of judges was for the President of India to hold appointments after consultation with the Chief Justice. Then, in Supreme Court Advocates- on Record Association vs. The Union of India, also known as‘theSecond Judges Case’, the word consultation was held to have the same meaning as concurrence. In that case the Court was reconsidering its decision in S.P Gupta v. Union of India. Also known as the First Judges Case, there it was held that the executive had complete primacy over judicial appointments as opposed to the judiciary. 

In their analysis, the judges reasoned that the Chief Justice must be given primacy over the Executive in matters related to appointment as it is the former who will be able to assess the capabilities of the new appointee with greater precision. It was further said that the role of both the judiciary and executive must be analyzed in degrees and it must be seen which better subserves the constitutional purpose. In the Third Judges Case, detailed powers limiting the extent of the power of the executive in interference with matters of appointment were listed. One of the key limitations served was the rule that if the collegium insisted on raising a particular candidate, the executive would have to appoint said candidate.

The above cases were taken to have tremendous precedential value in the Fourth Judge’s Case. The controversy arose in the question whether judicial primacy could be held to be a part of the Basic Structure.

The NJAC Judgement (Fourth Judges Case)

In 2014, the NJAC Act was enacted by Parliament to bring in a significant executive presence in the collegium system by including the influence of the Prime Minister and leader of Opposition. The Court, before looking at the Act, analyzed the constitutionality of the amended Articles 124 A, B and C which set up the new system of judicial appointments.

In the NJAC judgement, the decision before the Court lied in the questioning of two aspects of the Basic Structure of the Constitution: firstly, whether there was an infringement of judicial primacy by the new Act and secondly, if this sort of infringement could constitute a violation of the Basic Structure in India.

The majority opinion in the case, clearly held that judicial primacy in appointments was a stated rule through various precedents. Secondly, by referencing the third judge’s case, he showed that the executive had powers of limitation over judicial appointments. On an analysis of the Constitution assembly debates as well, it was shown that the Constitution had a significant levitation towards the judiciary. Dr. Ambedkar’s opinion during one of the decision was cited where it was said that the word ‘consultation’ was used in order to ‘curtail’ the will of the executive. Thus, Ambedkar’s statement has had a crucial effect on deciding.

On a reasoning based on the current and past political situation of India, the judges have used dangers of a political-judicial connection to reject the constitutionality of the amendments as violative of the basic structure and therefore, the constitutionality of the Act.

Gautham Bhatia, a key researcher on the Union of India’s side in this case has criticized the decision heavily on two aspects. Firstly, he criticizes the interpretation of the judge’s on the word ‘curtail’ used by Ambedkar.  The word curtail in its interpretation would mean to decrease the power of interference of the executive and not completely absolve it. His argument is that the current collegium system has zero interference from the executive and has totally absolved their powers which is opposite to the intent of the legislature as inferenced from the constitutional assembly debates.

His second argument lies in the fact that none of the previous Judges Cases had specifically mentioned that judicial primacy was a part of the Basic Structure of India. All the precedent cited by the Courts only laid down the primacy of judicial appointments and not its specific existence as part of the Basic Structure. 

Conclusion

Thus, by striking the 2014 Amendments and Act as violative of part of the basic structure, the scales have tipped to the favor of the judiciary in judicial appointments. One side argues that nepotism in the judiciary itself could lead to a problem whereas the winning side (for now) says that the political-judicial nexus is too strong a one to ignore. Unless challenged again on the basis of its reasoning, the holding of judicial primacy in appointments as a part of the Basic Structure will allow the judiciary to maintain its status as the highest decision-making authority in the country.

Group 10: Class Discussion

Article 31C
About it, and complications. Article 31C was originally added by the 25th Amendment, 1971. It was introduced against the backdrop of increasing judicial scrutiny of land reforms introduced by the Government to abolish zamindari; the tussle between the courts and the government was seen in the Bank Nationalization case where it was held mandatory for the government to give due compensation to those deprived of their property.
The original test stated:
"31C. Saving of laws giving effect to certain directive principles: Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. Provided that where such law is made by the Legislature of a State,the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.".
Articles 39(b) and (c) deal with specific socialistic goals aimed to achieve economic equality. The Amendment sought to exclude judicial review and placed directive principles above fundamental rights. The part of the Article starting "and no law...effect to such policy" which sought to exclude the powers of the courts to review such a law was fortunately struck-down in the landmark Kesavananda Bharti case as violative of the basic-structure of the Constitution, the power of judicial review. The 42nd Amendment, 1976 changed the article from "the principles specified in clause (b) or clause (c) of Article 39" to "any of the principles laid down in Part IV". It meant that where any law declared that it was for the promotion of any of the DPSP, it could not be held to contravene Article 14, 19 or 31--an obvious over-expansion. The changes introduced by the 42nd Amendment were struck down in Minerva Mills v. Union of India, 1980 as unconstitutional and the Article stands as it
existed prior the amendment. A law seeking to promote Article 31C may now be called into question to ascertain if the Act substantially and in spirit seeks to promote economic equality or not.
The scope of Judicial review in India’s “limited Judiciary”
A judiciary, just like a legislature, becomes limited as soon as a written Constitution is adopted. A Constitution manifests the permanent will of the people; different organs of the government are mere creatures of the Constitution and owe their very existence to it.
In India, we have a written Constitution defining and limiting the powers of different organs of the Government, so that none can exercise any arbitrary power beyond what is granted by the Constitution. This was, surprisingly, highlighted by the Supreme Court in Golak Nath v. State of Punjab AIR 1967 SC 1643 in the following words:
No authority created under the Constitution is Supreme: the Constitution is supreme and all the authorities function under the supreme law of the land.
In the Indian Constitution, certain matters are explicitly made non-justiciable and thus, outside the judiciary’s realm. The most striking example of this is the non-enforceability of Directive Principles of State Policy as provided under Article 37 of the Constitution.
Similar restrictions exist in disputes relating to the election of a person as President or Vice-President (Article 71(4)), orders and other instruments made and executed in the name of the President (Article 77(2)), invalidating proceedings of a House (Article 100(2)), irregularity of procedure in Parliament (Article 122(1)) etc.
In India, judicial review is intertwined with judicial policy making and judicial legislation, which has been on a spiraling rise post-Emergency.
The very recent examples of such misuse of judicial power is best seen in the orders of the Supreme Court relating to banning of diesel vehicles above 2000 cc and the subsequent imposition of ‘diesel cess’, regulation of BCCI, prohibition of sale of liquor on national highways, and compulsory playing of National Anthem in movie halls.
By doing so, there has been an enormous wastage of judicial time, massive loss for the State exchequer, and loss of jobs. In fact, the hotel industry was hit so badly by the liquor ban that the Supreme Court was forced to issue a clarificatory order exempting municipal areas from the ban.
In other countries, such measures are done either by the Executive or the Legislature. These actions of the Supreme Court are, according to Professor John Hart Ely, a former Dean of Stanford Law School, impermissible. He also says that the judiciary’s focus should be on the process of government with substantive choices left to the political process.
Further, it is also pertinent to note that the judges are not electorally accountable and that when they declare executive and legislative actions as unconstitutional, they must do it with strict adherence to provisions of the Constitution.
Through a written constitution, we have inherited a limited government and a limited judiciary, and it is imperative that none of the organs of the government encroach upon the territory of each other.
The Courts must refrain from policy making and legislating, which must only be done by elected representatives. The role of the Courts is limited to checking the excesses of the Executive and the Legislature: it must protect the people’s inalienable rights as a sentinel on the qui vive.
An unlimited judiciary undermines democracy when they substitute their own views for those of elected representatives. The Attorney General’s remarks have indeed hit the bull’s eye!

The case of Ranjan Dwivedi v. Union of India (1983 SCR (2) 982)

In Ranjan Dwivedi v. Union of India, the Supreme Court declared that a writ of mandamus cannot be issued to implement Article 39A but the social goal of free legal service and equal justice can be secured only be means of appropriate legislations or schemes. They also deal with a dispute regarding the fees that was payable to an advocate who was aiding the litigation in question as an amicus curiae, or friend of the court. The statutory requirement, as per the Rules of the High Court that applied to this case, the advocate was liable to be paid only Rs. 24. However, the defendant contested this provision and argues that no advocate would be willing to render his services for such a meagre amount and no reputed lawyer would be likely to represent the accused in such a situation. The justification provided for a demand for a higher fee was that since the prosecutor is usually a senior lawyer, the accused also has a right to be provided with a lawyer by the state, based on equal opportunity. The Supreme Court was convinced by this argument and held that the fee payable should be enhanced The court also gave instructions to all state governments to make arrangements for granting legal service free of cost to the poor accused individual.

Article 25: The Right to Freedom of Religion (Blog by Group 7)

(Note: Presenters were Group 6)

Religion, Morality and the State.

Article 25 of the Indian Constitution states that every individual is “equally entitled to freedom of conscience” and has the right “to profess, practice and propagate religion” of one’s choice. The limitation to this falls only if the practice is detrimental to "public order, morality or health." The right to freedom of religion is not an absolute one. As Dr. Ambedkar points out, as opposed to the structure of other fundamental rights, which see the addition of a limitation clause after the clause granting the right;  Article 25 is always preceded with its limitation, implying that Article 19 will triumph over it. 

Before addressing what the constitution has to say on religion, or what erstwhile judges have interpreted this right to grant, we must stop to ask what religion in India is at all. Is it Individualistic or communitarian, spiritual or textual, intimate or material? 

One of the cases we discussed in the beginning of the class was whether having a beard is an essential religious practise. To maintain uniformity, the Air Force has a policy against the growth of hair. While Sikhs are a community, who donot shave their hair and keep long hair. The Haryana High Court stated that keeping long hair is not an essential religious practise. When the case went to Supreme Court, the court stated that for muslims, there is no specific mandate against the cutting of hair and shaving. Essential religious practise are very test driven. We have to protect those ceremonies which are essential religious practises. Essential religious practises has been divided into two parts – religious and secular.

In Europe we see a different notion of secularism than the pluralistic acceptance of religion witnessed in India. For instance, Iceland bans the circumcision even of men; despite citizens who may want to for religious purposes. 

An interesting debate that broke out during this discussion was whether the notion of secularism that restricts religious freedom on the basis of morality or public purpose affects only those in the minority. Examples both from India and Europe prove otherwise, wherein for instance, in Catholic Church had to accept the right to divorce; and Hinduism in India accepted the courts’ verdicts on temple entry, who can be a priest, etc. 

Now, on judicial interpretations of this right. The first prominent case in this regard was the Lakshmindra Swaminar Case, from 1954, which was minimally intrusive. The case determined who can enter the idol’s inner sanctum, when the temple must be shut to allow the idol to sleep, and so on. The second case, of Ram Prasad Seth (1957) was far more comfortable with interevention.  there came a judicial shift that had not been seen before in India. While the question of what would be secular and what would be protected under the scope of religious rights had always been addressed, this was the first time that the court proved to be interventionist into the private religious sphere. Before this, in cases such as Ratilal Panachand Gandhi, the court implemented a less intrusive way of describing religion. Such a shift came with huge consequences in Indian Law.

The year right after the Ram Prasad case, we see Qureshi v State of Bihar, which dealt with the politically charged issue of cow slaughter. This case also proved to be the starting point for the essential practices test. 

 Understanding the judiciary's role in this- with the Ram Prasad Seth v UP case, 

From this, there came a necessity to address what would constitute the essential practices of the religion. It is important to examine whether the judiciary makes reasonable or arbitraryclassifications in this regard. The possible clash with Article 14 is also another consideration to be made, along with other limitations. While weighing this in, by the statutory interpretation of Clause 2 of Article 25, state interventionism is allowed within the jurisdiction. The balancing of this with the actual right to profess religion lies on a thin line. 

The Sabarmila Temply Entry Case is a recent judgement that deals with the multifaceted nature of this right. The Sabarmila Temple did not allow the entry of women between the ages of 10 and 50 to enter the temple on the grounds that they are menstruating, which would “pollute” the chambers of the celibate god, who resided in the temple. Further, they said that with the entry of women, came the possibility of their molestation or assault, which this rule sought to avoid. The case was challenged on the grounds that it was not an essential practice of the religion under Article 25; the classification is gender based and arbitrary under Article 14, and lastly, that the fundamental right of a woman here corresponded with the fundamental duty of the government to protect this right.  However, the courts held in favour of the Temple; holding that (a) just because the practice was not custom since time immemorial, that did not mean it was not essential; (2) there was no gender based on arbitrary classification, as classification was based on menstruation. 

Class discussion on this point discussion how, over here, the dignity of women's life on the basis of her natural cycle is compromised. The casteist concepts of purity and pollution is used as ammunition in this case against the woman by claiming that for "her own physical safety" it is better that she refrains from praying in the temple. Over here, the right of an individual's freedom is compromised along with a directly targeted gender based discrimination. Further, while it may seem like a classification on the basis of menstruation prima facie; it is a gender based classification since only women menstruate. 

The examination of our constitutional morality thus becomes relevant. Constitutional morality, which is the set of values and principles enshrined in our constitution, is what should determine the interepretation of such subjective rights. The alternative would see a heavy governmental or judicial bias, insofar as the opinions of the organs of the state would power over the notions that bind us as a nation. 

The Presentation is class further examined the following limitations placed upon Article 25 and 26:  public order, morality, and public health. 

1. Public Order 

In order to maintain public order, courts have held that forced conversions, or noise pollution is illegal. 

2. Morality 

The presentation involved the trailer of the documentary of “The Holy Wife,” which discussed the plight of Devadasis. Meant to be maids of the gods, these young women, of “lower castes” are not involved in prostitution for the name of religion in India. The documentary highlighted a supposed essential practice of a religion that violates not merely human rights and dignity, but also legitamised illegal acts of rape, assault and murder. The criminalization of prosititution under the Indian Penal Code sought to tackle this, giving us an example of state intervention in religion on the grounds of morality. 

(c ) Public Health 

The evolution of the state role from patriarchial to welfare oriented brought about the rise in the importance of state guaranteed public health. Now, for instance, starvation for religion purposes, which could amount to suicide, or abetment of suicide is now criminalized. Further, self inflicted torture to attain spiritual ends has also been made illegal. 

The last section of the class discussed various facets of the judicial and constitutional morality we see arise over the court of these judgements. An interesting conversation was as to whether the imposition of science on religion was justified- from changing the curriculum of religious educational institutions to a more science centric course; or the use of vaccines despite a religious bias against them. The general consensus in class held this to be justified. Another interesting paradigm discussed was the rights of micro communities, and the protection of the essentials of their rights. This could be a linguistic community, or a small tribal community. 

In a country like India, this notion of secularism proves to be a structural pillar that upholds the pluralistic diversity that is in existence. We have always been a communitarian society, and to balance the rather radical right of the individual remains a challenge.

The Basic Structure of the Constitution (Blog by Group 3)

Presentation by Group 2: P. Verma, M. Sunkara, N. Gupta, R. Chauhan, S. Sharma

Blog by Group 3: C. Bhardwaj, B. Pamidighantam, S. Prem, N. Halakhandi, A. Agarwal, A. Roy

Minutes for 18th April, 2018

Group Two in their presentation on the Basic Structure of the Constitution, explained in the beginning of their presentation that the Constitution must be ever-evolving and emphasised that ours is a living Constitution that requires amendments made to the fluctuating need of the society. They further stressed upon the importance of Articles 13(2) and 368 which elucidate about how the creation of Laws which are inconsistent to the rights conferred by this part shall be deemed to be void and that the Parliament may exercise its’ powers to amend the Constitution, respectively. The Group further placed strong emphasis on the Golaknath case.

The following is a summary of the concepts and themes covered by the Group:

Basic Structure of the Constitution

A culmination of a long struggle between Judiciary and Parliament, the "Basic Structure" doctrine is the judge-made doctrine whereby certain features of the Constitution of India are beyond the limits of the amending powers of the Parliament.

Although the Court held that the power of Parliament to amend the Constitution was impliedly limited by the doctrine of Basic Structure, it did not clearly define or explain what constituted the basic structure.

The group additionally shared the following photograph pertaining to the development of the basic structure:

Golak Nath v. State of Punjab (1967) 2 SCR 762

In the famous case of Golaknath V. State of Punjab, in the year 1967 the Court ruled that Parliament could not curtail any of the Fundamental Rights in the Constitution.

Beginning with its ruling in the Golaknath case, the Court developed jurisprudence around what was known as the “basic structure doctrine.” According to this doctrine, the Court oversaw preventing the erosion of those enduring values that constitute the essence of constitutionalism.

Although it backtracked six years later, the Court continued to say publicly that in principle no institutional body could alter the democratic essence of the Constitution. Similarly, in property law disputes, the Court did not hesitate to rule on more than one occasion that individuals whose land was taken by the government were receiving inadequate compensation. As the state increasingly failed to deliver on its promises and the public grew tired of the country’s lack of prosperity, more people began turning to the Court as the one legitimate institution with the power to protect their interests.

The Court while scrutinising the arguments, highlighted two core issues and bifurcated the judgement consequently.

The first issue that arose whether amendments qualified as “law” under the meaning of Article 13(2).

Since 1951, questions have been raised about the scope of the constitutional amending process contained in Article 368. In Shankari Prasad Singh v. Union of India , the argument against the validity of the 1st Amendment was that Article 13 prohibits enactment of a law infringing or abrogating the Fundamental Rights that the word “Law” in Art. 13 would include any law; even a law amending the Constitution and, therefore, the validity of such a law could be judged and scrutinized with the reference to the fundamental rights which it could infringe. Here in this case there was a conflict between Arts. 13 and 368. Adopting the literal meaning of the constitution, the Supreme Court upheld the validity of the 1st Amendment. The Court rejected the contention and limited the scope of Art. 13 by ruling that the word ‘Law’ in Art. 13 would not include within its compass a constitution amending law passed under Art. 368. The Court stated on this point: “we are of the opinion that is the context of Art. 13 laws must be taken to mean rules and regulations made in the exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent power with the result that Art. 13(2) do not affect amendments made under Art. 368.”

The Court held that the terms of Art. 368 are perfectly general and empower Parliament to amend the Constitution without any exception. The fundamental rights are not excluded or immunized from the process of constitutional amendment under Art. 368. These rights could not be invaded by legislative organs by means of laws and rules made in exercise of legislative powers, but they could certainly be curtailed, abridged or even nullified by alterations in the Constitution itself in exercise of the constituent power.

There is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power. Both Article 13 and 368 are widely phrased and conflict in operation with each other. To avoid the conflict, the principle of harmonious construction should be applied. Accordingly, one of these Articles ought to be read as being controlled and qualified by the other. In the context of Article 13, it must be read subject to Art. 368. Therefore, the word ‘law’ in Art. 13 must be taken to refer to rules and regulations made in exercise of ordinary legislative power, and not to constitutional amendments made in the exercise of the constituent power under Art. 368 with the result that Art. 13(2) do not affect amendments made under Art. 368. The Court, thus, disagreed with the view that the fundamental rights are inviolable and beyond the reach of the process of constitutional amendment. The Court, thus, ruled that Art. 13 refer to a “legislative” law that is an ordinary law made by a legislature, but not to a constituent law that is a law made to amend the constitution. The Court thus held that Parliament could by following the ‘procedure’ laid down in Art. 368 amend any fundamental right.

Again, in Sajjan Singh’s case this issue came up. But the Supreme Court in this case ruled by majority of 3:2 that the “pith and substance” of the Amendment was only to amend the fundamental right so as to help the State Legislatures in effectuating the policy of the agrarian reform. The conclusion of the Supreme Court in Shankari Prasad’s case as regards the relation between Arts. 13 and 368 was reiterated by the majority. it felt no hesitation in holding that the power of amending the Constitution conferred on Parliament under Art. 368 could be exercised over each and every provision of the Constitution. The Court refused to accept the argument that fundamental rights were “eternal, inviolate, and beyond the reach of Art. 368.”

The second conundrum that arose was whether Fundamental Rights could be amended or not.

No Earthly wisdom can foresee every possible situation which may have to be faced in future. Nothing may remain static in the world. Nature demands change. A political society undergoes changes with the passage of time. To face new problems and challenges changes and modifications are called for in all aspects of national life. It is therefore, impossible to make a constitution which can satisfy the needs of the people for all times to come. Changing circumstances will require modification of constitutional provisions. A constitution that denies the right to amend it is likely to be destroyed and replaced by the succeeding generations. It is therefore wise to provide for a mechanism to change the constitution in the Constitution itself. That is why every modern constitution provides for a machinery or process to amend its provisions. The framers of the Indian Constitution provided for a process which is neither too rigid nor too flexible. Article 368 specially deals with amendments, but some other Articles in the Constitution provide for amendments by ordinary legislative process.

Views of Pandit Jawaharlal Nehru Supporting the Amending Provisions

In addition to this, being the keen observers we are with an unquenchable thirst for knowledge (read with a pinch of salt), we further came across the views of our Hon’ble Former Prime Minister Pandit Jawaharlal Nehru who supported the amending provisions and have thus included the same for a better understanding.

“That while we want this constitution to be as solid and as permanent as a structure we can make it nevertheless there is no permanence in Constitutions. There should be certain flexibility. If you make anything rigid and permanent, you stop the Nation’s growth, the growth of a living, vital organic people……

But in any event, we should not make a Constitution such as some other great countries have, which are so rigid that they do not and cannot be adapted easily to changing conditions. Today especially, when the world is in turmoil and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow.”

Discussion

Q. How would the fundamental rights have panned out if the Keshavnanda Bharti case would not have come up?

A. If the Keshavnanda Bharti case would have never come into the picture than today we would not have right to privacy, right to education. It is due to this case which led to the amendments in the constitution.

Q. If possible, could you differentiate between the Golaknath and Keshavnanda cases?

A. Golaknath case is fundamentally different from the Keshavnanda case. It’s much more radical and in many ways the Golaknath case has rejected the idea of the basic structure of the constitution. Golaknath is saying that there is nothing as basic structure and you cannot not amend anything under Part 3 as constitution is considered to be supreme and you cannot infringe any fundamental rights. Keshavnanda case says that you can amend any part of the constitution as long as it does not infringe the basic structure of the constitution which the judges have decided by looking at the preamble and what it is saying.

Q. Since the basic structure of the constitution is not defined anywhere so does this give judiciary extra judicial powers or act as a judicial overreach?

A. Yes, it gives extra judicial powers to a very great extent. In Indira Gandhi case, the judges have different views upon as to what basic structure is and it largely depends who the judge is. There are certain guidelines as to what basic structure of the constitution is and there is not set code of rules to define the structure it can be interpreted in any manner. Sometimes judges might feel that they need to place more importance on equality rather than freedom of speech and so on and so forth.

Food for Thought

Golaknath case is an example of judicial overreach because it specifically says, “You cannot amend Part 3 and undermined fundamental rights”. In the first 50 years of the Indian Constitution the parliament and the executive learned that there are cases which trigger them to amend it. They were relying on the interplay between judiciary and amendment. Chief Justice Subba Rao rejects the idea of the basic structure or the basic features. The law is not always supposed to be just but also to be formal. Article 368 has no such limitations which the Golaknath interpreted and that’s why Keshavnanda Bharti case overruled it even though it’s following the same principles. Keshavnanda Bharti also establishes basic doctrine and Golaknath also but it is more radical in a way that it completely took away the powers of the parliament. Indian judiciary is considered to be one of the most important organs in the entire world among all the nations.

Group 8- 11th April Class Notes

Public Interest Litigation

Is the legitimacy of/ trust in judicial activism being adversely affected by these twisted and sort of, personal conception of “public interest” by the judges?

The Supreme Court says that they’re doing the legislation a favor; argue that since they aren’t doing they’re job, the Judges have to. Use this as an excuse for judicial overreach.

Lots of PIL’s get clubbed together due to there being many of a similar category. Also, PILs are clubbed together in frivolous PIL cases. Use them as an excuse to get rid of many PILs in a single case.

In the past, cases on gender bias have been deemed as luxury litigation. Who decides what is luxury litigation, is the judicial agenda changing. Is it defined by the upper middle class concerns of the supreme court justices?

Who has locus standi? - If you get rid of locus standi, everyone will come to court.

Shri Dinesh Trivedi, MP. Case – Public has the right to information regarding their elected personnel – their assets, education, and if there are any criminal charges against them. PILs helped the public get to know their elected representatives background and finances.

What drives Public Interest Litigation? – Governance crisis that litigation can fill – leads to judicial overreach; triple talaq case example. – also cases reaching the court depend on the closeness of the high court to the supreme court – also depends on which judge does it reach.

Emergency played an important role in the history of PIL and other litigation. – Conclusion reached by Epp was wrong, critiqued by Upendra Bakshi. Only looked at reported cases(About 2000 PIL’s in a month) does not look at number of PILs.

Supreme court has given itself De-Facto/Docket Control over public interest litigation. – Which cases to hear, and who shall hear them is an enormous power.

Nepotism and power in getting your PIL heard. Is access to justice only for people who were anyways powerful? Are the personal conception of the individual justices reflected in their selection. Responsibility in filing PIL, of the people filing it? Or the people judging it?

Social action litigation, vs public interest litigation.

Question raised regarding PIL - Is judicial activism because people are bringing new types of cases? Or is it that the judiciary ‘s agenda changing?

PIL never abolished, because it helps the interests of the government, as a means to harass the opposition.

Group 7 Presentation on Public Interest Litigation:

PIL is a jurisdiction unique to the Indian higher judiciary that arose in the late 1970s in the aftermath of the political Emergency of 1975-77.

Allowed the Common Man to be heard in regards to the politicians.

Characteristics

·       Procedural flexibility – Not bound by the same rules of procedures.

·       Procedures for rehabilitation distinguished. Humanitarianism should be distinguished from miscarriage of mercy.

·       No consistent reasoning for PIL’s.

Operates under the standing of “vacuum in governance, the Court rushes to fill it”

Judges in PIL:

·       Have tremendous power, to design innovative solutions, direct policy changes, catalyse law-making, reprimand officials and enforce orders.

Delhi in the early 2000s went through dramatic transformations that are recognizable in cities all over the Global South. What marks Delhi’s dislocations as distinct is their source and their basis — they are based not, as in the past, on administrative or municipal policy or executive directions, but on judicial directions in a series of PILs concerning the city.

The question worth asking is how and why did PIL emerge as the primary agent of such transformations in Delhi and dominate for so long?

Only with the 2010 CWG did the City Legislature and Executive reassert their authority that too requiring full Central backing.