Constitutional Governance : Battle for Supremacy —An Overview from 1950 to 2020

Introduction

Constitution defines the powers, functions and duties of the legislature, the executive and the judiciary, the three pillars of democracy. The legislature is to make law, the executive to implement it and the judiciary to interpret the same. Each of the three wings has to function within the limits prescribed under the Constitution. None of the them can trespass into the field which is constitutionally delegated to the other wing. Principle of separation of powers is one of the basic features of the Indian Constitution.

The Constitution of India1 came into force in 1950. More than seven decades have passed since the commencement of the Constitution and this period has often witnessed tug of war between the executive and the judiciary. Role assigned to the judiciary is to act as an impartial arbiter and to maintain the supremacy of the Constitution. The interpretation of Constitution involves the interplay of various basic features such as parliamentary supremacy, independence of judiciary, rule of law, principle of separation of powers, etc. Anti-executive judgments rendered by the courts were often nullified by Parliament through constitutional amendments. Interpretation of the Constitution by the courts often give rise to tussle between the judiciary and the executive. Every attempt made by the legislature and executive to dilute the power of judicial review has been rendered futile through judicial interventions. Judiciary has to interpret the Constitution in accordance with the felt necessities of the time. The attempt in this article is to examine how judiciary expanded its powers and built up the power of judicial review brick by brick while responding to the felt needs of the time over the last seven decades.

Widest areas of judicial interpretation

Article 21 of the Constitution

Article 212 is perhaps the constitutional provision which has received the widest possible interpretation by the Supreme Court over the last seven decades. Article 21 provides as follows:

No person shall be deprived of life or personal liberty except according to procedure established by law.

This fundamental right was given a narrow interpretation by the Supreme Court in A.K. Gopalan v. State of Madras3 . It was held that “personal liberty” in Article 21 means nothing more than the liberty of the physical body, that is freedom from arrest and detention. The expression “law” in Article 21 was interpreted as State-made law and not “due process of law”. The above literal interpretation of Article 21 held the field for 28 years till the judgment in Maneka Gandhi v. Union of India4 in 1978. The narrow interpretation given to Article 21 in Gopalans case5 was rejected by a 9-Judge Bench of the Supreme Court in Maneka Gandhi case6 . Overruling Gopalancase7,, it was held as follows:8

… The expression “personal liberty” in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 199….

The Court held that the expression “personal liberty” is not confined to the person or body of the individual but it includes all those rights which constitute the making of a man. It was also held that “procedure established by law” means “fair, just and reasonable procedure” and that it should not be “fanciful, oppressive or arbitrary”. By holding so, the Supreme Court accepted due process clause which was expressly rejected in Gopalan case10. In Sunil Batra v. Delhi Admn.,11 Krishna Iyer, J. observed:

…Though our Constitution did not have a “due process” clause as in the American Constitution the same consequences ensued after the judgment in Rustom Cavasjee Cooper v. Union of India (Bank Nationalisation case)12 and Maneka Gandhicase13.

It was also held in Maneka Gandhi case14 that fundamental rights are not watertight compartments and that they have to be read complimentary to each other. Accordingly, Article 21 has to be understood by reading the same along with Articles 1415 and 19.

Following Maneka Gandhi case16, it has been held in Francis Coralie Mullin v. Administrator, UT of Delhi17 that “right to life” includes right to live with basic human dignity. A variety of rights have been read into Article 21 over the last few decades, the latest being “right to privacy” and “right to sexual orientation”. While declaring that “right to life” includes “right to privacy” , the rights which flow from Article 21 have been summed up by the Supreme Court in K.S. Puttaswamy v. Union of India:18

(i) the right to go abroad;

(ii) the right against solitary confinement;

(iii) the right of prisoners against bar fetters;

(iv) the right to legal aid;

(v) the right to speedy trial;

(vi) the right against handcuffing;

(vii) the right against custodial violence;

(viii)the right against public hanging;

(ix) right to doctor’s assistance at government hospitals; and

(x) right to shelter;

(xi) right to a healthy environment;

(xii) right to compensation for unlawful arrest;

(xiii) Right to freedom from torture;

(xiv)right to reputation; and

(xv) right to earn a livelihood.

Judicial review suffered a severe setback during the emergency regime. In ADM, Jabalpur v. Shivkant Shukla19 the Supreme Court by 4:1 majority held that Article 21 is the sole repository of right to life and personal liberty and that once the said right is suspended no person had any locus standi to file writ petition to challenge the legality of an order of detention even if the order was not under or in compliance with the Act or is illegal, or was vitiated by malafides or is based on extraneous considerations. The interpretation given to “life and liberty” and “judicial review” by H.R. Khanna, J., the lone dissenting Judge became the source for development of constitutional law and human rights jurisprudence. Though ADM, Jabalpur20 was not followed in subsequent cases and its effect was taken away by the 44th constitutional amendment Act21, it was formally overruled only in 2017 in Puttaswamy.22 The interpretation given to Article 21 from Maneka Gandhi23 to Puttaswamy24 has given a new dimension to human rights jurisprudence. It enabled the judiciary to widen the scope of judicial review of both legislative and executive action.

Equality and arbitrariness

Article 14 declares that the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India. The first expression “equality before law” is of English origin and the second expression “equal protection of laws” has been borrowed from the American Constitution.

Though Article 14 forbids class legislation, it does not forbid reasonable classification of persons, objects and transactions by the legislature. However, classification should not be arbitrary or artificial. The classification to be reasonable should fulfil two conditions: the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and the differentia must have rational nexus with the object sought to be achieved by the Act. The classification theory governed Article 14 in the beginning. However, to expand the content and reach of Article 14, a new concept of equality was propounded by the Constitution Bench of the Supreme Court in E.P Royappa v. State of T.N..25This new concept was explained by Bhagwati, J. in the following words:26

… Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithesis to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. When an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14….

Eminent jurist H.M. Seervai did not find favour with the new doctrine of equality propounded by Bhagwati, J. in Royappacase27. He observed “the new doctrine hangs in that air because it propounds a theory of equality without reference to the terms in which Article 14 confers right to equality”.28

In Maneka Gandhi v. Union of India29, Bhagwati,J. quoted with approval the new concept of equality propounded in Royappacase30 and observed as follows:31

Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits…. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as I have well as philosophically is an essential element of equality and non-arbitrariness, pervades Article 14 like a brooding omnipresence….

The same principle was reiterated in Ramana Dayaram Shetty v. International Airport Authority of India32.Prior to the above decisions, the view held was that Article 14 forbade discrimination and not classification, provided the classification fulfilled the twin test referred to earlier. According to the new doctrine, the classification theory is merely a judicial formula for determining whether the legislative or the executive action is arbitrary and therefore constitutes a denial of equality. Article 14 strikes at arbitrariness in State action. This means if the State action is arbitrary, it cannot be justified even on the basis of the doctrine of classification. Article 14 strikes arbitrariness in State action and ensures fairness and equality of treatment. In Maneka Gandhicase33 it is held that Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.

In Mithu v. State of Punjab34 Section 303 of the Penal Code35 which provided for mandatory death penalty to life convicts who commit murder was struck down as arbitrary and violative Articles 14 and 21 of the Constitution. In Mithu36 and Sunil Batra37, statutory laws were struck down on the ground of arbitrariness. The Supreme Court refused to follow the arbitrariness doctrine in State of A.P. v. McDowell& Co.38 and took the view that if an enactment is challenged as violative Article 14, it can be struck down only if it is violative of equality clause and equal protection clause and not on the ground that it is arbitrary or unreasonable and that court cannot sit in judgment over the wisdom of legislature.

However, in Shayara Bano v. Union of India39 while dealing with the validity of triple talaq, Rohington Nariman and U.U. Lalit, JJ. found that McDowell case40 did not notice the earlier judgments in Maneka Gandhi41and Mohd. Arif v. Registrar, Supreme Court of India42 and therefore refused to follow the dictum in the said case. Though Mithu43 was referred to in McDowellcase44 it was wrongly held that Mithu45 turned mainly on Article 21 though Article 14 was referred to. After holding that the ratio in Mithu46 was based on both Articles 14 and 21 the learned Judges found that arbitrariness doctrine contained in Article 14 would apply to negate legislation, subordinate legislation and executive action. It was finally held by both Nariman and Lalit, JJ. that practice of triple talaq is violative of Article 14 being manifestly arbitrary and contrary to rule of law.

Following the judgments in Mithu47 and Shayara Bano48it is now increasingly clear that any legislation which is manifestly arbitrary can no longer survive the test of Article 14.

Right to constitutional remedies

Constitution makers were careful to provide effective remedies for the enforcement of fundamental rights before both the Supreme Court and the High Court. Initially only an affected party was permitted to invoke the writ jurisdiction of the High Court as well as the Supreme Court. The only exception was in the case of habeas corpus where a person other than the detainee was permitted to challenge the detention. The traditional rule of locus standi that a petition under Articles 3249 or Article 22650 can only be filed by an affected person was relaxed by the Court. Following Judges Transfer case51 the Courts now permit public interest litigation at the instance of public-spirited citizens for the enforcement of constitutional and other legal rights of any person or group of persons who because of their poverty or socially or economically disadvantaged position is unable to approach the court for relief. While relaxing locus standi, the Court cautioned that the members of the public, who approaches the Court should be acting bona fide and not for personal gain or private profit or political motivation.52

Article 32(1) guarantees the right to move the Supreme Court through appropriate proceedings for the enforcement of fundamental rights. The Courts’ power to convert letters into writ petitions was challenged in Bandhua Mukti Morcha v. Union of India53popularly known as bonded labourer’s case. This power was traced to the expression “appropriate proceedings” in Article 32 of the Constitution. It was held that the expression “appropriate proceeding” referred to in Article 32 must be judged in the light of the purpose for which the proceeding is initiated, namely, enforcement of fundamental rights. The Court justified the procedure of converting letters into writ petition by holding that Constitution makers deliberately did not lay down any particular form of proceedings for enforcement of fundamental right because they knew that in a country like India where there is so much of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on a right formula of proceeding for enforcement of fundamental right would become self-defeating.

The scope of this article was widened by the Supreme Court to entertain public interest litigation (PIL). Unfortunately, over a period of time, the noble purpose for which this new jurisdiction was created was abused by unscrupulous litigants for personal and political purposes. In Janata Dal v. H.S. Chowdhary54 the Supreme Court reiterated its observations in S.P. Gupta55 that the Court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective. In Ashok Kumar Pandey v. State of Bihar56 the Court warned against misuse of PIL in the following words:

The Court has to be satisfied about: (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; and (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal.

Bandhua Mukti Morcha57 fashioned new remedies by conferring discretion on both the Supreme Court and the High Court to award compensation for contravention of fundamental rights. It was held as follows:

Article 32 does not merely confer power on the Court to issue a direction, order or writ for the enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillary powers including forging new tools and fashion new strategies designed to enforce fundamental rights it is in realisation of this constitutional obligation that this Court has innovated new methods and strategies particularly for enforcing the fundamental rights of the poor and disadvantaged who are denied their human rights and to whom freedom and liberty have no meaning.

The grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of fundamental rights guaranteed under Article 21 is an exercise of the court’s power under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen. D.K. Basu v. State of W.B.58

In Nilabati Behera v. State of Orissa,59 and D.K. Basu v. State of W.B.60, it was held that the doctrine of sovereign immunity has no application to State’s liability for contravention of fundamental rights and is no defence to the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights. It is further held that the claim in public law for compensation for violation of fundamental right to life and liberty is a claim based on strict liability and is in addition to the claim available in private law for damages for tortuous acts of the public servants.

In S. Nambi Narayanan v. Siby Mathews,61 after quoting with approval the judgment in D.K. Basu v. State of W.B.62, the Supreme Court declared that pendency of civil suit for compensation will not bar the constitutional court to grant compensation under the public law remedy.

Even international conventions are treated as enforceable in Indian courts if they are not in conflict with municipal law and can be read to give effect to what is enshrined in PartIII of the Constitution.63

Directive Principles of State Policy

The Directive Principles of State Policy are included in Part IV of the Constitution. Article 37 provides that directive principles are fundamental in the governance of the country and that the State is duty-bound to apply these principles while making law. The directive principles differ from the fundamental rights inasmuch as the directives are not enforceable in the courts and do not create any justiciable rights to anyone. The relationship between directive principles and fundamental rights have been the subject-matter of several judgments right from the inception of the Constitution. The earlier decisions of the Supreme Court show that the courts did not give much importance to the directive principles, possibly because they were not enforceable in courts of law unlike fundamental rights. It was held in State of Madras v.Champakam Dorairajan64 that in case of any conflict between fundamental rights and directive principles, the fundamental rights would prevail. In Kerala Education Bill, 1957, In re65 the Court advocated harmonious construction in case of conflict between directive principles and fundamental rights. In Kesavananda Bharati Sripadagalvaru v. State of Kerala66 the Supreme Court held that directive principles and fundamental rights aimed at social revolution and establishment of a welfare State and they are supplementary and complimentary to each other.

Though the Court cannot compel the State to pass legislation to implement directive principles, the Supreme Court has been issuing several directions to the Government and administrative authorities to take positive action to remove the grievances which were caused by the non-implementation of the directives67.

Later judgments of the Supreme Court show that the mandate to build a welfare State was more a concern of the judiciary than the State. Though the directive principles were intended as principles to be translated into law by the executive, the same did not prevent the court from transforming the same into fundamental rights. This was achieved by giving a wide interpretation to Article 21. Equal pay for equal work [Article 39(d)68], protection of children from exploitation [Article 39(e)69], free and compulsory education of children up to the age of 14 years(Article 4570) protection of working women from sexual harassment (Article 4271), free legal aid to poor, speedy trial of undertrial prisoners (Article 39-A72), right to work and medical assistance to workers (Article 4173), and protection of environment (Article 48-A74) are some of the directive principles which have been elevated as fundamental rights.

The Court in its enthusiasm to expand fundamental rights declared in Mohini Jain v. State of Karnataka75that “right to life” includes “right to education”. The same was later modified by a larger Bench of the Supreme Court in Unni Krishnan, J.P. v. State of A.P.76 clarified that “right to life” includes “right to education” only up to the age of 14 years as this right has to be understood as part of Articles 41 and 45 included in Part IV of the Constitution. Following this judicial declaration, Parliament passed 86th Constitutional Amendment Act77 whereby “right to free and compulsory education up to the age of 14 years” was expressly made a fundamental right by inserting Article 21-A in Part III of the Constitution.

Privileges of the Legislature

Article 10578 deals with the privileges of Parliament and Article 19479 deals with the privileges of the State Legislatures. Controversy often arises as to whether the legislature is the sole and exclusive judge of its privileges and whether the High Court or the Supreme Court are empowered to examine the decision taken by the legislature in this regard.

The law in this regard was settled by the Supreme Court in popularly known as U.P. Vidhan Sabha case.80 One Keshav Singh, a journalist was found guilty of contempt of the house and was sentenced to imprisonment for 7 days by the U.P. Assembly. He filed a habeas corpus petition challenging the detention before the Allahabad High Court. Initially a Bench of two Judges of the High Court granted him an interim bail. In response to this the Assembly passed a resolution against the two Judges, Keshav Singh and his advocate on the ground that they had committed contempt of the house and they were directed to be taken into custody and to be brought before the house. The Judges and the advocate approached the High Court challenging the resolution passed by the House on the ground that the resolution amounted to contempt of court. The Full Bench of the High Court granted an interim order staying the implementation of the resolution passed by the Assembly. The assembly again passed a resolution asking the Judges to appear before the House and to explain their conduct. The High Court again granted a stay against the implementation of the new resolution. At this stage, the President of India intervened and referred the matter to the Supreme Court under Article 14381for its advisory opinion.

The Supreme Court by a majority of 6:1 found that Article 226 confers wide power on the High Courts to issue a writ of habeas corpus against any authority including the legislature. The Indian courts are empowered to examine the validity of detention of a person sentenced by the Assembly under a general or unspeaking warrant. A distinction was drawn between the British and Indian Parliament inasmuch as the former is a sovereign and the latter is subject to the provisions of the Constitution. The High Court had wide powers under Article 226 to examine the validity of detention by any authority including the legislature. The scope and nature of power vested in the legislature under Article 194 lies with the court and any examination of the same does not give rise to a cause of action for taking action for contempt of the legislature. Thus, the Supreme Court drew the lakshman rekha between the legislature and the judiciary. The law declared by the Supreme Court in Keshav Singh case82 is balanced and it holds the field even now.

Anti-Defection Act

As per the provisions of Anti-Defection Act, the Speaker was vested with the power to decide on the disqualification of a member of the legislature. The decision of the speaker was treated as final. However Para 7 of the Tenth Schedule83 barred judicial scrutiny of any action taken by the Speaker in this regard. The Supreme Court struck down Para 7 of the Tenth Schedule as unconstitutional on the ground that it took away the power of judicial review. However, the remaining provisions of the Tenth Schedule was declared as valid in Kihoto Hollohan v. Zachillhu84.

Appointment and transfer of Judges

The Supreme Court, the guardian of the Constitution has to discharge the rare function of defining its own role on the appointment and transfer of Judges. In doing so it has to protect the independence of judiciary without compromising the constitutional principles.

Article 124(2)85 provides as follows:

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such other Judges of the Supreme Court and the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years:

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

Till 1973, the executive followed the convention to appoint the seniormost Judge of the Supreme Court as the Chief Justice of India. However, this Convention was given a go-bye by the executive in 1973 and Justice A.N. Ray was appointed as Chief Justice of India superseding three senior Judges of the Supreme Court. This was the fall out of the judgment in Kesavananda Bharati case.86 In protest the three senior Judges resigned from the Supreme Court.

The meaning of the word “consultation” came up for consideration for the first time in Sankal Chand Sethcase in the context of Article 222 of the Constitution. The word “consultation” was given a narrow interpretation by the Court. “Consultation” did not mean concurrence and that the President was not bound by it. This meant that the President had the right to differ and take a contrary view. However, the word “consultation” meant full and effective consultation.

The interpretation given to the word “consultation” in Union of India v. Sankalchand Himatlal Sheth87 was reiterated by the Supreme Court in S.P. Gupta v. Union of India.88 The case arose out of a letter written by the Union Law Minister to Chief Ministers of the States asking them to obtain prior consent from persons recommended for appointment as Judges of the High Court to be transferred to any other High Court in the country. The word consultation in Article 124(2) was interpreted to mean the same as the meaning of the word “consultation” in Articles 21789 and 22290 of the Constitution.

Though the Government claimed privilege from disclosing the documents relating to the advice tendered by the Council of Ministers to the President under Article 74(2)91 the same was rejected by the Court. It was held that right to know is implicit in the right to freedom of speech and expression and that disclosure of information must be the rule and secrecy an exception which is justified only if the strictest requirement of public interest demand. While the advice given by the Council of ministers to the President was protected against judicial scrutiny, the correspondence between the law minister, the Chief Justice of India and the Chief Justice of Delhi High Court was not protected merely because it is referred to in the advice as it does not form part of the advice so as to be protected from disclosure under Article 74(2).

The scope of judicial review of appointment of Judges was limited to two grounds: ,(1) there is no full and effective consultation between the Central Government and the appropriate authorities; and (2) the decision was based on irrelevant grounds. As a result, the ultimate power to appoint Judges was vested with the executive till 1992.

A major shift in the power of appointment of Judges took place in 1992. In Supreme Court Advocates-on-Record Assn. v. Union of India,92 a nine-Judge Bench of the Supreme Court by a 7:2 majority overruled its earlier judgment in Judges Transfer case i.e.S.P. Gupta v. Union of India93 and held that the Chief Justice of India should have primacy in the matter of appointment of the Judges of the Supreme Court and the High Courts. The view of the Chief Justice of India was to be formed after taking into account the views of two seniormost Judges of the Supreme Court. It was also clarified that the Chief Justice was to be appointed on the basis of seniority. The selection should be made as a result of a participatory consultative process in which the executive had only a limited role to act as a mere check on the exercise of power by the Chief Justice of India. As a result of this judgment the discretion conferred upon the executive and the Chief Justice of India was reduced. It is held as follows:94

… Thus, the executive element in the appointment process has been reduced to the minimum and any political influence is eliminated. It is for this reason that the word “consultation” instead of “concurrence” was used in the Constitution but that was done merely to indicate that absolute discretion was not given to anyone, not even to Chief Justice of India as an individual, much less to the executive….

Later in 1999 to nullify the recommendations made by the collegium for appointment to Supreme Court, the President sought the advisory opinion of the Supreme Court under Article 143 on the consultation process as laid down in Supreme Court Advocates-on-Record Assn. case95 in 1993. This led to Special Reference No. 1 of 1998, In re.96 A nine-Judge Bench of the Supreme Court widened the scope of the Chief Justice’s consultation process. The expression “consultation” with the Chief Justice of India in Articles 217(1) and 222(1) of the Constitution of India require consultation with a plurality of Judges in the formation of opinion of the Chief Justice of India. The majority held that in regard to appointment of Judges to the Supreme Court under Article 124(2), the Chief Justice of India should consult a collegium of four seniormost Judges of the Supreme Court instead of two. If two Judges give adverse opinion, the Chief Justice should not send the recommendation to the Government. The collegium must include the successive Chief Justice of India. The recommendations of the collegium should be based on a consensus and unless the opinion is in conformity with that of the Chief Justice of India, no recommendation is to be made. In regard to the appointment of Judges of the High Courts, the Supreme Court held that the collegium should consist of the Chief Justice of India and any two seniormost Judges of the Supreme Court. In regard to transfer of High Court Judge, the Court held that in addition to the collegium of four Judges, the Chief Justice of India is required to consult Chief Justice of the two High Courts one from which the Judge was being transferred and the other to which he was given. The Court unanimously held that the recommendations made by the Chief Justice of India with regard to the appointment of Judges to the Supreme Court without following the consultation process are not binding on the Government. Lack of consultation is the only ground on which the appointment of Judges of higher courts can be challenged.

Thus, the primacy of appointment of Judges of the Supreme Court and High Court was completely taken away from the executive and vested in the judiciary. However, the primacy is not vested with the Chief Justice of India but with the collegium of Judges. The expression “Chief Justice of India” in Articles 124(2), 217 and 222 has been replaced by “collegium of Judges”. This has practically reduced the role of the executive to that of a rubber stamp. It is submitted that the language used in Articles 124(2), 217 and 222 does not justify the interpretation given by the Supreme Court in Supreme Court Advocates-on-Record Assn. v. Union of India97 and in Special Reference No. 1 of 1998, In re98.

As the executive had no say in the appointment of Judges, Parliament made an attempt to nullify the above judgment through a constitutional amendment. The 99th constitutional amendment was enacted for this purpose. The Constitution (99th Amendment) Act, 201499 amended Articles 124(2), 127 and 128, 217(1), 222(1), 224, 224-A and 231 of the Constitution. It also inserted Articles 124-A, 124-B and 124-C. As per the amended Article 124(2), every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in Article 124-A. The consultation process envisaged prior to the amendment was dispensed with. The first proviso which provided the consultation with the Chief Justice of India in case of appointment of a Judge other than Chief Justice of India was omitted. Similar amendment was carried out with respect to appointment of High Court Judges. As per the Amendment, a National Judicial Appointments Commission was constituted for selection of Judges to the High Court and Supreme Court.

Article 124-A100 provides:

124-A. National Judicial Appointments Commission.—(1) There shall be a commission to be known as the National Judicial Appointments Commission consisting of the following, namely—

the Chief Justice of India, chairperson, ex-officio;
two other senior Judges of the Supreme Court next to the Chief Justice of India —members, ex-officio;
the union minister in charge of law and justice —member, ex-officio;
two eminent persons to be nominated by the Committee consisting of the Prime Minister, the Chief Justice of India and the leader of opposition in the House of the people or where there is no such leader of opposition, then the leader of single largest opposition party in the house of the people —members:

Provided that one of the eminent persons shall be nominated from among the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, minorities or women:

Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for re-nomination.

No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defects in the constitution of the Commission.

As per Article 124-B101, the Commission was empowered to recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of the High Courts, recommend transfer of Chief Justices and other Judges of High Court’s from one High Court to any other High Court and ensure that the person recommended is of ability and integrity.

The Constitution Bench of the Supreme Court by 4:1 majority struck down the 99^th Amendment as well as the NJAC Act102 and upheld the collegium system. It was held that clauses (a) and (b) of Article 124-A(1) are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary as well as transfer of Chief Justices and Judges, from one High Court to another. Clause (c) which provided for the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member and clause (d) which included two “eminent persons” as members of the NJAC was declared ultra vires the provisions of the Constitution, on the ground of violation of the principle of “independence of the judiciary” as well as, “principle of separation of powers”. Accordingly, clauses (a) to (d) of Article 124-A(1) were set aside and consequently, the entire Constitution (99th Amendment) Act, 2014 was struck down in its entirety, as being ultra vires the provisions of the Constitution.103

However, Jasti Chelameswar, J., the lone dissenting Judge declined to accept that the “primacy of the judiciary” in the appointment of Judges is a basic feature of Constitution. In a separate dissenting judgment, Chelameswar, J. supported NJAC on the ground of transparency and checks and balances.

Thus, the challenge against the 99th constitutional Amendment Act displayed conflict between various basic features such as “principle of separation of powers”, “democracy”, “parliamentary supremacy” and “independence of judiciary”. However, “independence of judiciary” as interpreted by the majority prevailed over the other basic features of the Constitution. Hence the attempt made by Parliament to wrest the power of appointment and transfer of Judges from the judiciary was rendered futile by the Constitution Bench and the same stands completely vested in the judiciary. The “primacy of the judiciary” in the appointment of Judges was neither the intention of the Constitution makers nor can it be derived from the language of Article 124 of the Constitution though it has to a great extent prevent political appointments to higher judiciary.

Justice Kurian Joseph who was part of the Constitution Bench after his retirement expressed regret for his contribution in the NJAC case104.105

The stand-off between the executive and the judiciary continued even after the judgment in NJAC case106over the memorandum of procedure for appointment of Judges. The Judges vacancies in Supreme Court multiplied and it rose to ten by August 2021. Executive insisted on vetoing the recommendation made by the collegium on the ground of national security. Though the Supreme Court did not initially agree with this, later it was given up and the deadlock seems to be cleared. An unprecedented recommendation of nine Judges to the Supreme Court by the collegium was cleared by the President of India within a week and all the nine Judges have been appointed. Similarly collegium recommendations for appointments to the High courts are also fast tracked. It is widely believed that this has been made possible due to the statesmanship of Chief Justice N.V. Ramana.

Constitutional amendment and basic structure

Constitutional amendments touching fundamental rights and judicial review often witnessed direct conflict between the executive and judiciary. The Constitution (1st Amendment) Act, 1951107 inserted Articles 31-A and 31-B in the Constitution. The validity of the same was challenged before the Supreme Court in Sankari Prasad Singh Deo v. Union of India108 on the ground that the amendment purported to take away the rights conferred by Part III which was prohibited under Article 13(2) and hence was void. The Supreme Court did not accept this contention and drew a distinction between the constituent power and the legislative power of Parliament. It was held that the power to amend the constitution including fundamental rights is contained in Article 368109 and that the word “law” in Article 13(2) includes only an ordinary law made in exercise of the legislative powers and does not include the constitutional amendment which is made in exercise of the constituent power. Thus, in Shankari Prasadcase110 judiciary recognised Parliament’s power to amend the fundamental rights. This was one of the first cases in which judiciary yielded to the legislature in the battle for supremacy.

In C. Golak Nath v. State of Punjab111 while dealing with the validity of Constitution (17^th Amendment) Act112 the Supreme Court by a majority of 6:5 overruled its earlier decision in Shankari Prasadcase113 and held that Parliament has no power to amend Part III of the Constitution so as to take away the fundamental rights. The majority led by Subba Rao, C.J. held that an amendment is a “law” within the meaning of Article 13(2) and therefore if it violates any of the fundamental rights it could be declared void. However, the majority applied the principle of prospective overruling and held that the judgment will have only prospective operation. Thus, Parliament was stripped of its power to amend fundamental rights enshrined in Part III of the Constitution.

However, with a view to overcome the difficulties created by the judgment of the Supreme Court in Golak Nathcase114, Parliament introduced the (24th Amendment) Act115. The Amendment added a new clause (4) to Article 13 which provided that “nothing in this article shall apply to any amendment of this Constitution made under Article 368”. It also added a new clause (3) to Article 368 which provided that nothing in Article 13 shall apply to any amendment made under this article.

The Constitution (25th Amendment) Act, 1971116 added Article 31-C. The first part of Article 31-C provides that no law which is intended to give effect to the directive principles contained in Articles 39(b) and (c) 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 or Article 19. The second part of Article 31-C provided that no law containing a declaration that it is for giving effect to such policy can be called in question on the ground that it does not in fact give effect to such policy. The first part of Article 31-C was upheld in Kesavananda Bharati case117, but the second part of this article which barred judicial scrutiny was struck down as unconstitutional

Parliament passed the 24th and 25^th Constitutional Amendment Act, 1971 with a view to nullify the judgment of the Supreme Court in Golak Nathcase118 and to restore its amending power. The validity of the Constitution (24th and 25th Amendment) Act, was challenged before the Supreme Court in Kesavananda Bharati Sripadagalvaru v. State of Kerala119, popularly known as the Fundamental Right’s case. A special Bench of 13 Judges was constituted to hear the case. The Court by a majority of 7:6 overruled Golak Nath case120.121 The majority held that there are inherent or implied limitations on the amending power of Parliament and Article 368 does not confer power to amend the Constitution so as to damage or destroy the essential or basic features of the Constitution. The minority held that there are no limitations, express or implied on the amending power of Parliament and that the power to amend includes the power to add, alter or repeal any provisions of the Constitution.

Some of the features which were treated as basic features of the Constitution in Kesavananda Bharati122are supremacy of the Constitution, republican and democratic form of Government, sovereignty of the country, secular character of the Constitution, separation of powers between the legislature, the executive and the judiciary, federal character of the Constitution, mandate to build welfare State contained in Part IV, unity and integrity of the nation, essential features of individual freedoms secured to the citizens, etc. However, the list is not exhaustive and it kept on expanding.

The Constitution (39^th Amendment) Act, 1975123 enabled the judiciary to put to test the basic structure theory propounded in Kesavananda Bharati124. Parliament enacted this amendment to validate with retrospective effect the election of the then Prime Minister, Mrs Indira Gandhi which was set aside by the Allahabad High Court. Article 329 was amended by inserting clause (4). While striking down the aforesaid Amendment Act the Supreme Court held that rule of law, judicial review, democracy which implies free and fair election, etc. constitute basic features.

The Constitution (42nd Amendment) Act, 1976125 was passed to nullify the judgments of the Supreme Court in Kesavananda Bharati126 and Indira Nehru Gandhi v. Raj Narain127. The Amendment purported to remove the limitation imposed by the Supreme Court on the amending power of Parliament in Kesavananda Bharati case128. The Amendment added two new clauses, namely clauses (4) and (5) to Article 368 of the Constitution. Clause (4) provided that no constitutional amendment (including the provision of Part III) or purporting to have been made under Article 368 whether before or after the amendment of the Constitution (42nd Amendment) Act, 1976 shall be called in any court or any ground. Clause (5) provided that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal of the provisions of the Constitution under this article. However, in Minerva Mills Ltd. v. Union of India129the Supreme Court by 4:1 majority struck down clauses (4) and (5) of Article 368 introduced by the 42nd Amendment Act on the ground that the said clauses destroyed the basic structure of the Constitution. The Court reiterated that limited amending power of Parliament, harmony between fundamental rights and directive principles, judicial review, etc. constitute basic features of the Constitution.

The power of judicial review flowing from Articles 226 and 32 of the Constitution forms an integral and essential feature of the Constitution and formed part of its basic structure. It is for this reason the Supreme Court struck down clause (2)(d) of Article 323-A130 and clause (3)(d) of Article 323-B131 which provided for the exclusion of the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 32 of the Constitution as unconstitutional and invalid.132

Independence of judiciary is recognised as the basic feature of the Constitution The 99thConstitutional Amendment Act which was passed to nullify the judgments of the Supreme Court and to dilute the powers of the judiciary in Supreme Court Advocates-on-Record Assn.case133 was therefore struck down.“Basic structure theory” has become an effective tool in the hands of the higher judiciary to keep Parliament under its control.

Any law placed in the 9thSchedule134 after 24-4-1974 when Kesavananda Bharati judgment135 was delivered will be open to challenge. Even though an Act is put in the 9^th Schedule by a constitutional amendment, its provisions would still be open to challenge on the ground that they destroy or damage the basic feature of the Constitution.136

Carl Friedrich, in his book “Man and His Government”, compared the Constitution to a living system and not as a mere system of brick and mortar. He observed:137

A Constitution is a living system. But just as in a living, organic system, such as the human body, various organs develop and decay, yet the basic structure or pattern remains the same with each of the organs having its proper functions, so also in a constitutional system the basic institutional pattern remains even though the different component parts may undergo significant alternations. For, it is the characteristics of a system that it perishes when one of its essential component parts is destroyed.

Article 356 of the Constitution

The Constitution makers expressed the hope that Article 356138 will remain a dead letter in the Constitution as there would be no occasion to invoke it. Article 356 provides that if the President on receipt of a report from the Governor of a State or otherwise is satisfied that the situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution, he may issue a proclamation assuming the functions of the State Government.

However, contrary to this by 1992 itself this extraordinary power was invoked more than 100 times and by 2020 about 120 times. Article 356 no longer remains a dead letter but is often used as a device to keep the opposition ruled States on tenterhooks. It is perhaps the most abused provision in the Constitution.

Landslide victory by the ruling party in the Lok Sabha elections is often cited as a reason by the Union Executive to dissolve State assemblies ruled by the opposition. In 1977 fresh election to the Lok Sabha was held in which the Congress Party was defeated and Janata party came to power. On the day when Janata party came to power, the Congress Party was in power in various States. In April 1977 Sri Charan Singh, the then Union Home Minister addressed a letter to the Chief ministers of 9 States requesting them to advise the Governors of the respective States to dissolve the State assembly and seek a fresh mandate from the electorate inspite of the fact that they enjoyed majority in the assembly. This was on the ground that the State Legislature no longer reflected the wishes of the electorate. Later, the nine State assemblies were dissolved and President rule was imposed. The States challenged the validity of the directive issued by the Home Minister. A seven-member Bench of the Supreme Court by a unanimous judgment rejected the petition filed by the States and upheld the action of the Centre. The Supreme Court gave a narrow interpretation to Article 356 in State of Rajasthan v. Union of India139.140The Court held that the “satisfaction” under Article 356 is the subjective satisfaction of the President and that it cannot be questioned. Courts cannot formulate much less enforce a convention to regulate the exercise of such an executive power as this is a matter which is exclusively within the domain of the executive. However, a limited judicial review was permitted in holding that if the satisfaction is malafide or is based on wholly extraneous and irrelevant grounds, the court would have jurisdiction to examine it because in that case there would be no satisfaction of the President. Therefore, the initial view was that the scope of judicial review of presidential proclamation under Article 356 was almost nil except where the proclamation was issued malafide or based on wholly irrelevant grounds.

However, in a landmark case a nine-Judge Bench by a majority of 7:2 held in S.R. Bommai v. Union of India141 that the State Legislative Assembly cannot be dissolved merely on the issue of presidential proclamation. The Assembly can be dissolved only after Parliament had ratified the presidential proclamation and till such approval, the President can only suspend the Legislative Assembly. The scope of judicial review was further widened in holding that President’s satisfaction has to be based on objective materials. The Court approved the observation in State of Rajasthancase142 that judicial review will lie against presidential proclamation if the power was exercised mala fide by the President.

Rejecting the contention on behalf of the Union of India that disclosure of reasons and material would amount to disclosure of advice which was expressly barred under Article 74(2) of the Constitution it was observed by Jeevan Reddy and Agrawal, JJ. as follows:143

If and when any action taken by the president in exercise of his functions is questioned in a court of law, it is for the Council of Ministers to justify the same … by disclosing the material which formed the basis of the act. … the material placed before the President by the Minister/council of ministers does not thereby become part of advice. Advice is what is based upon the said material. Material is not advice … even if the material is looked into by/shown to the president, it does not partake the character of the advice.

The Court held that the majority has to be tested on the floor of the house and it cannot be left to the subjective satisfaction of the Governor/President. The majority also held that if the proclamation issued is declared invalid it will be open to the court to restore the dismissed Government to office and revive and reactivate the legislative assembly.

Relying on paras 118 and 119 of Bommai144, the Uttarakhand High Court set aside the presidential proclamation dated 27-3-2016 and the consequent notification imposing President rule in the State of Uttarakhand. The High Court held that the presidential proclamation was deliberately issued on 27-3-2016 with a view to deprive the Speaker the powers vested in him under the Anti-Defection Act and to deny the petitioner his right to prove majority on the floor of the house. Hence, the High Court concluded that the presidential proclamation was vitiated on the ground of malafides and that it was issued wholly on the basis of the irrelevant grounds. Consequently, the writ petition was allowed quashing the presidential proclamation and restoring the Government which was in power at the relevant time.145

Bommai146 is a check on the gross abuse of power being committed by the executive in dismissing elected Governments in power in the States. . It is also a glaring example as to how abuse of power by the executive contributes to the growth of judicial review.

Very recently in Shivraj Singh Chouhan v. Speaker, M.P.Legislative Assembly147the issue arose as to whether the Governor can convene the Assembly for a floor test during the pendency of the proceedings before the Speaker in relation to the resignation of 22 MLAs of the ruling party. The Supreme Court while allowing the writ petition filed by Shivraj Singh Chouhan and other BJP leaders seeking immediate floor test in the assembly following the resignation of 22 Congress MLAs upheld that the power exercised by the Governor of Madhya Pradesh to convene the Assembly for a floor test. The Bench comprising D. Y. Chandrachud and Hemant Gupta, JJ. held that the Governor can call for floor test when there are reasonable grounds to believe that the Government has lost the confidence of the house. However it was clarified that the power given to the Governor is not to destabilise a Government, and that the exercise of the power is not immune to judicial review. On the issue as to whether the pendency of the proceedings before the Speaker is a valid basis not to have the confidence of the House in the Government, the Bench observed:148

… Nothing prevents the Speaker from taking a decision either on matters of resignation or disqualification despite convening of a trust vote. That the Speaker has not yet done so, is not a ground to defer the convening of a trust vote.

Conclusion

A survey of the judgments rendered by the Supreme Court shows that constitutional interpretations have widened the power of judicial review. Article 21 while granting every person the right to live with basic human dignity heralded a new human rights jurisprudence for the country. The arbitrariness doctrine propounded in Royappa case149 enabled the judiciary to further widen the scope of judicial review over executive and legislative action. The interpretation given to constitutional remedies provided under Articles 32 and 226 widened people’s access to constitutional courts. Popular verdicts increased people’s confidence in judiciary. Public interest litigation converted the higher judiciary into a bosom for all kinds of hopes and fears of men, tempting the judiciary to further expand the power of judicial review. As a result, many a times judiciary has encroached into the field constitutionally delegated to the other wings of the Government. In spite of warnings, unscrupulous litigants rush to the courts to settle scores on others thus abusing the public interest litigation system. It is necessary that this public confidence in judiciary built over decades is maintained without sacrificing constitutional principles. Directive principles are no longer the preserve of the executive. Most of them have been transformed into fundamental rights which has tilted the balance away from the executive. The constitutional function of appointment and transfer of Judges of higher judiciary has been shifted from the executive to the judiciary itself. The gross abuse of power being committed by the executive in dismissing elected Governments in the States has been brought under judicial scrutiny. After Bommai150 it is no longer possible to invoke Article 356 in the opposition ruled States solely based on landslide victory of the ruling party in the Lok Sabha elections. Judiciary has checked the abuse of power by the Executive Heads of both the Centre and the States. However, the interpretation given to Article 356 has bestowed the judiciary with the role of an umpire in electoral politics which truly was not the intention of the Constitution makers.

The fact of the matter is that people repose great faith and confidence in Indian judiciary. Abdication of powers and rampant corruption of the legislature and the executive made it possible for the judiciary to widen its frontiers. Judges made their way into the arena of decision-making delegated to the legislative or executive wings of the Government. Way back in 1980, the Supreme Court held in Francis Coralie Mullincase151 that right to life includes the right to live with basic human dignity. Though ‘right to life” means right to food, shelter, clothing, livelihood, even after 40 years, 30% of the people of our country are still living below the poverty line. Judiciary has neither the purse nor the sword to implement its own orders. It can only shed the light and the problems suffered by the people cannot be solved without the active cooperation of those who are entrusted with the power of governance.

*Advocate, Supreme Court and Delhi High Court. Author can be reached at romychacko@rediffmail.com.

1Constitution of India.

2 Constitution of India, Art. 21.

8 Maneka Gandhi v. Union of India, (1978) 1 SCC 248, 280.

9 Constitution of India, Art. 19.

15 Constitution of India, Art. 14.

16 (1978) 1 SCC 248.

17 (1981)1 SCC 608.

18 (2017) 10 SCC 1, para 150.

19 (1976) 2 SCC 521.

20 (1976) 2 SCC 521.

21 Constitution (44th Amendment) Act, 1978.

26 E.P. Royappa v. State of T.N., (1974) 4 SCC 3, 38.

27 (1974) 4 SCC 3.

28H.M. Seervai, Constitutional Law of India, (3rd Edn.) Vol. 1, p. 275.

29 (1978) 1 SCC 248.

30 (1974) 4 SCC 3.

31 (1978) 1 SCC 248, 283.

32 (1979) 3 SCC 489.

33 (1978) 1 SCC 248.

34 (1983) 2 SCC 277.

35 Penal Code, 1860, S. 303.

49 Constitution of India, Art. 32.

50 Constitution of India, Art. 226.

51 S.P. Gupta v. Union of India, 1981 Supp SCC 87.

52 S.P. Gupta v. Union of India, 1981 Supp SCC 87.

61 (2015) 14 SCC 664.

62 (1997) 1 SCC 416.

63 See Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

64 AIR 1951 SC 226.

65 AIR 1958 SC 956.

66 (1973) 4 SCC 225.

67D.D. Basu, Shorter Constitution of India, (2^nd Edn.) 298-299.

68 Constitution of India, Art. 39(d).

69 Constitution of India, Art. 39(e).

70 Constitution of India, Art. 45.

71Constitution of India, Art. 42.

72 Constitution of India, Art. 39-A.

73 Constitution of India, Art. 41.

74 Constitution of India, Art. 48-A.

75 (1992) 3 SCC 666.

76 (1993) 1 SCC 645.

77 Constitution (86th Amendment) Act, 2002.

78 Constitution of India, Art. 105.

79 Constitution of India, Art. 194.

80 Powers, Privileges and Immunities of State Legislature, In re, AIR 1965 SC 745.

81 Constitution of India, Art. 143.

82 Powers, Privileges and Immunities of State Legislature, In re, AIR 1965 SC 745.

83 Constitution of India, Sch. 10, Para 7.

84 1992 Supp (2) SCC 651.

85 Constitution of India, Art. 124(2).

86 (1973) 4 SCC 225.

87 (1977) 4 SCC 193.

88 1981 Supp SCC 87.

89 Constitution of India, Art. 217.

90 Constitution of India, Art. 222.

91 Constitution of India, Art. 74(2).

92 (1993) 4 SCC 441.

93 1981 Supp SCC 87.

94 (1993) 3 SCC 441, 693.

99 Constitution (99th Amendment) Act, 2014.

100 Constitution of India, Art. 124-A.

101 Constitution of India, Art. 124-B.

102 National Judicial Appointments Commission Act, 2014.

103 Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.

104 Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.

105Speech by Justice Kurian Joseph at inaugural address of the Seminar on the topic ‘Challenges faced by the Indian Constitution in the Present Era’ at the 13th National Conference of All-India Lawyers Union (AILU) held at Kochi.

106 Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.

107 Constitution (1st Amendment) Act, 1951.

108 AIR 1951 SC 458.

109 Constitution of India, Art. 368.

110 AIR 1951 SC 458.

111 AIR 1967 SC 1643.

112 Constitution (17^th Amendment) Act, 1964.

113 AIR 1951 SC 458.

114 AIR 1967 SC 1643.

115 Constitution (24th Amendment) Act, 1971.

116 Constitution (25th Amendment) Act, 1971.

117 (1973) 4 SCC 225.