Justice B.V. Nagarathna of the Supreme Court has said judges must not hesitate to decide cases rightly, even if their decisions affect prospects of elevation or invite displeasure from those in power. She stressed that courage and conviction remain central to the meaningful exercise of judicial review.
Justice Nagarathna delivered the 2nd T.S. Krishnamoorthy Iyer Memorial Lecture at the Kerala High Court on the theme “Transformative Constitutionalism and the Basic Structure Doctrine.” She noted that judicial review can require courts to invalidate laws, restrain executive action and, in rare cases, strike down constitutional amendments passed by political majorities. Such decisions can carry political consequences, she said, but judges must not allow those concerns to influence constitutional duty.
“Judicial Oath Is Judicial Dharma”
Justice Nagarathna described the judicial oath as a judge’s “judicial dharma.” She said a judge must honour that oath regardless of personal or professional consequences. If fear of career outcomes guides adjudication, judicial review can become symbolic rather than a real constitutional safeguard, she warned.
Justice H.R. Khanna’s Dissent As Constitutional Courage
To illustrate constitutional courage, Justice Nagarathna referred to Justice H.R. Khanna’s dissent during the Emergency in ADM Jabalpur v. Shivkant Shukla. She recalled that the Supreme Court’s majority held that during the suspension of fundamental rights, citizens could not even approach courts to enforce personal liberty. Justice Khanna dissented, maintaining that the Constitution did not allow the State to extinguish the right to life and liberty even during an Emergency.
She noted that Justice Khanna paid a personal price for that dissent, as he was superseded for the office of Chief Justice of India. She added that constitutional jurisprudence later vindicated his position. She pointed out that in Justice K.S. Puttaswamy v. Union of India, the Supreme Court expressly overruled ADM Jabalpur and reaffirmed that fundamental rights do not depend on executive will.
Judicial Independence Has External And Internal Dimensions
Justice Nagarathna said judicial independence does not depend only on constitutional safeguards or institutional design. It also depends on how judges perform their role. She explained two interconnected dimensions:
- Independence from external influence: “A judge must be free from political pressure, institutional intimidation, or popular demand.”
- Independence within the institution: A judge must have the freedom to form and express a considered view of the law, even when it differs from colleagues. She said separate and dissenting opinions reflect intellectual autonomy and represent judicial independence in its most enlightened form.
She also remarked that a judicial opinion is not a negotiated text. It should state constitutional conviction. If the law requires clarity—even bluntness—judges should not dilute it merely to achieve consensus, she added.
Basic Structure Doctrine And Its Evolution
Justice Nagarathna traced the development of the basic structure doctrine through early decisions such as Shankari Prasad Singh Deo v. Union of India and I.C. Golak Nath v. State of Punjab, culminating in Kesavananda Bharati v. State of Kerala. She said Kesavananda Bharati rejected the argument that Parliament’s amending power is unlimited. While Parliament may amend any part of the Constitution, it cannot alter its basic structure, she noted.
She also referred to later decisions such as Minerva Mills Ltd. v. Union of India and S.R. Bommai v. Union of India, saying these rulings entrenched the doctrine. She said principles such as constitutional supremacy, secularism, federalism, separation of powers and judicial review form part of the Constitution’s foundational identity.
Transformative Constitutionalism With Constitutional Limits
Justice Nagarathna described transformative constitutionalism as an approach that aims to realise the Constitution’s promises of liberty, equality and fraternity over time. It treats the Constitution as a commitment to dismantle historical injustices and reshape social relationships, she said.
At the same time, she emphasised constitutional limits. In her formulation, the basic structure doctrine disciplines transformation so essential guarantees are not hollowed out. She added that transformative constitutionalism, in turn, gives life to the basic structure by keeping constitutional commitments responsive to contemporary realities.
Judicial Review Needs Independence To Be Effective
At the institutional level, she said, both doctrines converge through the judiciary’s power of judicial review. Without judicial review, the basic structure doctrine would remain theoretical, she noted. Without independence, courts may exercise judicial review timidly or selectively, she warned.
Justice Nagarathna concluded that constitutional governance depends not only on doctrines and institutional design, but also on the moral fibre of those who interpret and enforce the Constitution. Judges, she said, must be prepared to invalidate unconstitutional laws, restrain unlawful executive action and preserve the Constitution’s identity, even when doing so comes with personal cost.
