Judges Should Not Hesitate To Decide Rightly Even If It Costs Them Elevation Or Displeases Those In Power: Justice Nagarathna

Judges should not hesitate to take the right decision even if it can cost their elevation or displease those in power, Justice BV Nagarathna, Supreme Court Judge, said, asserting that courage and conviction are indispensable to the meaningful exercise of judicial review.Delivering the 2nd T.S. Krishnamoorthy Iyer Memorial Lecture at the Kerala High Court yesterday, Justice Nagarathna observed that judicial review frequently requires courts to invalidate legislation, restrain executive action, and at times even set aside constitutional amendments enacted by political majorities. “These are not easy tasks. They often carry political consequences,” she said. Judges may well be conscious that an unpopular ruling could affect their prospects of elevation, extension, or place them in the “bad books of the powers that be.” However, she firmly added, that awareness must never come in the way of doing what the Constitution demands.The oath of office, she described, is a judge's “judicial dharma” and must be honoured irrespective of personal or professional consequences. If decisions are shaped by apprehension about career outcomes, judicial review risks becoming symbolic rather than substantive.Even if judges know that unpopular decisions may cost them elevation, extension, or bring them in the bad books of the powers that be. That should not come in the way of their decisions. Ultimately, it is the conviction, courage and independence of each judge which really matters. We, as Judges, should always follow our oath of office which is our judicial Dharma and live up to it irrespective of its consequences on our career. Otherwise judicial review becomes symbolicJustice Nagarathna invoked H. R. Khanna as the finest example of constitutional courage. During the Emergency, in ADM Jabalpur v. Shivkant Shukla, the Supreme Court by majority held that during the suspension of fundamental rights, even the right to approach courts for enforcement of personal liberty stood curtailed. Justice Khanna dissented, holding that the Constitution did not permit the State to extinguish the right to life and liberty even in an Emergency.His dissent, she noted, came at significant personal cost. He was superseded for the office of Chief Justice of India. Yet history, and later constitutional jurisprudence, vindicated his position. The Supreme Court in Justice K.S. Puttaswamy v. Union of India expressly overruled ADM Jabalpur and reaffirmed that fundamental rights are not at the mercy of executive will. That corrective moment, she suggested, demonstrated that constitutional fidelity ultimately outlasts transient political expediency.On Judicial independence also includes judge's right to dissentJudicial independence, Justice Nagarathna said, ultimately derives its meaning not merely from constitutional safeguards or institutional design, but from the manner in which judges discharge their office. It has two distinct yet interrelated dimensions."First is independence from external influence. A judge must be free from political pressure, institutional intimidation, or popular demand," she said.Justice Nagarathna further said that it also includes the right of a judge to express dissent."Second, and more subtly, independence also operates within the judicial institution. Judicial independence is not exhausted by insulation from the political branches. It also requires that each judge be free to form and express his or her own considered view of the law, even when that view diverges from colleagues. Separate and dissenting opinions are manifestations of intellectual autonomy. This is independence of the judiciary in its most enlightened form," she said."A judicial opinion is not a negotiation document; it is an articulation of constitutional conviction. If the law, as we understood it, requires clarity – even bluntness – then dilution for the sake of consensus is a form of compromise we should be unwilling to make," she added.Transformative Constitutionalism and the Basic Structure DoctrineJustice Nagarathna's lecture was on the topic “Transformative Constitutionalism and the Basic Structure Doctrine.” She argued that both these constitutional ideas ultimately depend upon a judiciary willing to act independently and without fear.Tracing the evolution of the Basic Structure Doctrine, she referred to early cases such as Shankari Prasad Singh Deo v. Union of India and I.C. Golak Nath v. State of Punjab, culminating in the landmark decision in Kesavananda Bharati v. State of Kerala. In Kesavananda Bharati, the Supreme Court rejected the argument that Parliament's amending power was unlimited. While Parliament could amend any part of the Constitution, it could not alter its basic structure.Subsequent decisions such as Minerva Mills Ltd. v. Union of India and S.R. Bommai v. Union of India entrenched this doctrine, reinforcing that constitutional supremacy, secularism, federalism, separation of powers and judicial review form part of the...

Judges Should Not Hesitate To Decide Rightly Even If It Costs Them Elevation Or Displeases Those In Power: Justice Nagarathna

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"A judge must be free from political pressure, institutional intimidation, or popular demand," she said.

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