Kesavananda Bharti Judgement The Fulcrum On Which Jurisprudence Of Judicial Independence Has Developed : Ex-CJI UU Lalit

The former Chief Justice of India, Justice UU Lalit in a recent lecture delivered on the "Evolution of Independence of Judiciary as a Basic Feature of the Constitution" stated that the Kesavananda Bharti judgement has given us the fulcrum on which the entire jurisprudence of independence of judiciary has since then developed. According to Justice Lalit, the celebrated judgement has nurtured and developed jurisprudential thinking towards ensuring the independence of judiciary.

Justice Lalit was speaking at an event organised by the Kerala High Court Advocates Association (KHCAA) and the Constitution Debate Club (CDC) on Friday. The lecture session was conducted in connection with the golden jubilee of the Kesavananda Bharti vs State of Kerala judgment.

Justice Lalit explained that the main takeaway from Kesavananda Bharti is that there is an inherent limitation on the power of the parliament to amend the constitution. Anything but the basic structure can be amended and this is necessary for the existence of the country, community and individual, he stated. 

"Kesavananda Bharti has been the fulcrum in this direction, when it comes to independence of judiciary. Not just in terms of matters that should or should not come before the courts but even as to who shall constitute the courts, how the persons concerned are to be selected. This is where the two ideas have emerged. That to my mind is the greatest contribution of the dictum in Kesavananda Bharti. Not just on the functional side but even on the organisational side, it has contributed to the development of law in that regard.”

Justice Lalit went on to say that the facets of the basic structure contains many nuances including the concept of the independence of judiciary. Kesavananda Bharti has laid down that there are certain features of the Constitution which are so inviolable, so important for the existence of democracy, and for individuals to achieve their full potential and these cannot be frittered away, he remarked.

Justice Lalit focussed on two facets in his lecture : the organizational structure of the judiciary, i.e how judges are appointed, and its functional side- i.e, the powers exercised by the judiciary.

Justice Lalit referred to the 32nd amendment that incorporated a provision in the constitution that enabled the State to come out with a law dealing with administrative tribunals in Andhra Pradesh. Two sub articles were incorporated, one that said that such a law made by the State may confer justification on the tribunal, which is exercisable by all courts except the Supreme Court. The other sub article said that the determination made by such tribunals, shall be subject to confirmation by the executive. This amendment essentially gave the executive the power to modify the findings of the tribunal, Justice Lalit observed. When this was challenged in P. Sambamurthy V State Of Andhra Pradesh, Justice Bhagwati remarked that the decision of the tribunal being modified by the executive is unheard of and shocking. Such an amendment was subversive of the Rule of Law and was held to be invalid, Justice Lalit explained.

Justice Lalit also remarked on the 42nd amendment, through which an article was incorporated empowering the Parliament to put in place Central Administrative Tribunals. Through this, the parliament could exclude powers of other courts other than the Supreme Court and this was challenged in Sampath Kumar V Union of India. The judgment in Sampath Kumar reiterated what Justice Bhagwati said in the Minerva Mills case, that ‘there can be alternative institutional mechanisms in place”. The High Court’s jurisdiction may have been excluded, but an equally efficacious jurisdiction has been conferred in the Central Administrative Tribunal, the court had held in the above case.

Justice Lalit illustrated how the judgements in P. Sambamurthy and Sampath Kumar charted out the modality of substituting regularly exercisable powers of the High Courts.

Justice Lalit then referred to the judgment of the Andhra Pradesh High Court which was later challenged in the Supreme Court in L Chandra Kumar V Union Of India. The Division Bench of the Andhra Pradesh High Court said that the basis of the Sampath Kumar judgment that the parliament has the power to put in place alternative institutional mechanisms to substitute the powers of the High Courts under Art. 226 has never been accepted by the Supreme Court. This view was also accepted by the Apex Court in L Chandra Kumar and the Supreme Court said that judicial review by constitutional courts is a basic feature and the parliament cannot put in place an apparatus to exclude the jurisdiction of the High Courts, Justice Lalit enumerated.

Justice Lalit chose the above decisions to illustrate how the basic structure addresses the issue of the powers of the constitutional courts.

”the powers of the constitutional courts is considered a basic feature and any attempt to eat into that or diminish its value has not been accepted by the Supreme Court. That's where we stand today as a result of these judgments”.

Justice Lalit went on to illustrate the relevance of the Kihoto Hollohan judgment that dealt with the challenge to para 7 of the 10th schedule to the Constitution. The 10th schedule was amended to bring in the concept of anti defection in political parties. Para 7 of the amendment gave power to the Speaker with regard to defection and disqualification and made his decision on the matter final. This took away the rights of the courts under Art. 226, Justice Lalit explained. When this was challenged, the Union Government argued that normal courts were not competent to consider such matters as they are typically political issues, but this contention was rejected. The court said that, when the jurisdiction of courts are impinged on it, it needs to be ratified by the States by virtue of Article 368. In the absence of such ratification para 7 could not be made effective. The minority judgment in this case also said, that the fact that the decision of the Speaker can be made final and non-challengeable in court, violates the basic feature, Justice Lalit described.

“These judgements say that certain areas cannot be encroached upon. The power of the judicature to go into the validity of an instrument- whether legislative or executive order is sacrosanct. This cannot be modified to such an extent so as to make it extinct.”

On the constitution of courts, Justice Lalit referred to the first judge’s case, where a bench of 7 judges held that the opinion given by the Chief Justice cannot be given primacy over executive in matters of appointment of judges. He then referred to the Second Judge’s case, where a bench of 9 judges took the opposite view. Going by independence of judiciary, the opinion of the judiciary must have more weightage in matters of appointment, it had held. Subsequently, another bench of 9 judges put in place the collegium system, for making recommendations for appointments for judges, Justice Lalit noted.

With the 99th amendment, the National Judicial Appointments Commission (NJAC) was put in place, Justice Lalit went on to state. When this was challenged, it was observed that the political executives appointed may not have requisite experience to evaluate the performance of judges, he explained. "Therefore this amendment on the touchstone of the independence of judiciary, was rendered ineffective based on the principles laid down in Keshavananda Bharti”, he stated.

“These are the matters where we can proudly say as students of law that the development has been such as to ensure the independence of judiciary in this country. Whatever was spoken of as the power of court in Marbury V Madision, was not only accepted but this country, but this country has gone way beyond and has now ensured that the appointment of judges must also be elevated to that level, to ensure the independence of the judiciary. This is the evolution since Kesavananda Bharti.”

The event was held at the High Court of Kerala. Justice Bechu Kurian Thomas, judge of the Kerala High Court  delivered the introductory remarks to the lecture and Senior Advocate Jabu Babu, delivered the concluding address.

Live updates of the event can be accessed here.

Click here to watch the streaming of the event.