As SC Indicts Centre for Indifference to Basic Structure Doctrine, its Exasperation Is Telling

Judgments of nine non-collegium judges offer a mixed bag, suggesting an uncertain future for the Basic Structure Doctrine.

This is the last article in a six-part series on the basic structure doctrine – which the Supreme Court of India propounded in 1973 when it said that there are features of the constitution which are unamendable under any circumstances. The Wire is revisiting the doctrine as various aspects of it figure in several important cases currently before the apex court.

Also read:  Part I / Part II / Part III / Part IV / Part V


On Friday, a three-judge bench of the Supreme Court comprising Justices L. Nageswara Rao, Hemant Gupta, and S.Ravindra Bhat lamented a disturbing trend of the government not implementing the directions issued by the court. “To ensure that the Tribunals should not function as another department under the control of the executive, repeated directions have been issued which have gone unheeded forcing the Petitioner (Madras Bar Association) to approach this Court time and again.  It is high time we put an end to this practice. Rules are framed which are completely contrary to the directions issued by this Court.”

Among its key directions to the Centre, the bench has emphasised the constitution of a National Tribunals Commission to act as an independent body to supervise the appointments and functioning of tribunals, as well as to conduct disciplinary proceedings against members of tribunals and to take care of administrative and infrastructural needs of the tribunals. Also, the new search-cum-selection committees to fill vacancies of the tribunals will have the CJI or his nominee as the chairperson with a casting vote. This is to ensure that the judicial element, despite the presence of the civil servants in the committees, dominates.

Friday’s judgment is significant also because the court expressed its dismay and anguish that what has been recognised as part of the basic structure of the constitution by as many as five constitution benches of the court previously, is at stake: the guarantee of the rule of law to each citizen of the country, with the concomitant guarantee of equal protection of the law. Like many other nations, India recognised the need for tribunalisation of justice to provide for adjudication by persons with the ability to decide disputes in specific fields as well as to provide expedited justice in certain kinds of cases. By its cavalier attitude to the need for complying with the court’s directions to ensure tribunals’ autonomy, the Centre stood accused of turning a blind eye to the mounting arrears in the tribunals, mainly due to the delay in filling up the vacancies of the presiding officers and members of the tribunals.

Is the judgment on Friday in Madras Bar Association v Union of India symptomatic of the Centre’s likely indifferent stand in several crucial pending matters before the Supreme Court in which questions impinging on the Basic Structure Doctrine (BSD) have been raised?

The Indian Supreme Court currently has 30 judges with four vacancies.  As the Supreme Court is set to hear several momentous cases of constitutional significance, The Wire takes a look at the judicial statistics of 14 judges who have dealt with cases impinging on basic structure doctrine during their Supreme Court terms so far.

Part V dealt with first five judges of the Supreme Court, who are part of the apex court’s collegium of five senior-most judges entrusted with the task of recommending new judges to the court. The Wire found that the judgments authored by the first five judges inspire hope that BSD may be relied upon to render justice in crucial cases before the court.

This part deals with the remaining nine Judges of the Supreme Court who dealt with the basic structure cases in the past.  The data for this part, as in Part V, is drawn from Advance Judge Analytics of manupatrafast.com.

Also read: On Basic Structure Doctrine, Rulings of the SC’s First Five Judges Inspire Hope

1. Justice D.Y. Chandrachud

Date of Appointment (DoA):  13-05-2016.
Date of Retirement (DoR):10-11-2024
Current Seniority in Supreme Court: 6
Judgments authored:  316.
Judgments cited in : 187
Number of Basic Structure Cases dealt with so far in SC: 10

In Central Public Information Officer, Supreme Court of India v Subhash Chandra Agarwal, Justice Chandrachud joined the other judges on the constitution bench on the need to balance independence of the judiciary, a basic feature with the fundamental right to free expression. The Attorney General in this case pointed out that the disclosure of file notings between constitutional functionaries which concern the appointment process will erode the independence of the judiciary.

In Rojer Mathew v South Indian Bank Ltd and Others, the Supreme Court assessed the constitutional validity of the Finance Act, 2017 which pertain to the structure and organisation of tribunals. The petitioners challenged the passage of the Act as a Money Bill. The constitution bench struck down the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and other Conditions of Service of Members) Rules, 2017 as a violation of the doctrine of separation of powers, and the basic structure of the constitution. Corollary to the dictum of the Supreme Court in the Fourth Judges case, judicial dominance in appointment of members of judiciary cannot be diluted by the executive, the bench held.  The bench referred to the aspect of Money Bill in this case to a larger bench. Justice Chandrachud had authored a concurring opinion in this case.

Justice Dhananjaya Y. Chandrachud

Justice Dhananjaya Y. Chandrachud

In Maharashtra Chess Association v Union of India, Justice Chandrachud, presiding a bench also comprising of Justice Indira Banerjee, relied on judicial review being part of the basic structure of the constitution to hold that the Bombay high court erred in ousting its own writ jurisdiction to hear the case under Article 226.

In B.K.Pavitra v Union of India, Justice Chandrachud upheld the validity of the Karnataka Reservation Act, 2018, which provides for consequential seniority to persons belonging to Scheduled Castes and Scheduled Tribes promoted under the reservation policy. The Act was enacted after the Supreme Court held as invalid the previous Reservation Act, 2002 in the absence of quantifiable data for determining inadequacy of representation, backwardness and impact on overall efficiency. The court found merit in Karnataka government’s stand that promotion cannot be treated as the acquisition of creamy layer status.

Besides, the above Justice Chandrachud’s judgments in Justice K.S.Puttaswamy v Union of India (2017 Privacy case and the dissent in 2018 Aadhaar case), Government of NCT of Delhi v Union of India, Kalpana Mehta v Union of India, Jindal Stainless Ltd v State of Haryana and the dissent in Abhiram Singh v C.D.Commachen, are notable.

Also read: CJI Bobde’s View of Article 32 is Linked to Apex Court’s Vacillation on Basic Structure Doctrine

2. Justice Ashok Bhushan

DoA: 13-05-2016
Current Seniority in Supreme Court: 7
Number of judgments authored: 226
Number of judgments cited in: 147
Number of basic structure cases: 6

Justice Ashok Bhushan has been part of the benches which delivered judgments in Justice K.S.Puttaswamy v Union of India (Aadhaar case 2018), Government of NCT of Delhi v Union of India, Kalpana Mehta v Union of India, and Jindal Stainless Ltd v State of Haryana.

Besides, he has authored judgment in K.Lakshminarayanan v Union of India,  in which he rejected the contention that the principle of federalism, a basic feature, stood breached when the Centre unilaterally nominated members to the Puducherry legislative assembly, without consulting the government of the union territory.

In Shanti Bhushan v the Supreme Court, he dismissed the plea that the Chief Justice of India be directed to constitute a collegium of senior Judges for taking decisions as master of the roster. While the petitioner sought the Court’s intervention to ensure that rule of law, a basic feature prevails by such a direction, the bench held that the CJI ought to exercise his responsibility as the master of the roster independently to uphold the independence of the judiciary, another basic feature.

3. Justice L. Nageswara Rao

DoA: 13-05-2016
DoR: 07-06-2022
Current Seniority in Supreme Court: 8
No. of judgments authored: 159
No. of judgments cited in: 99
No. of basic structure cases: 2

In Association of Medical Super Speciality Aspirants and Residents and others v Union of India and Others, which Justice Rao, sitting with Justice Hemant Gupta, decided that right to life guaranteed by Article 21 means right to life with human dignity.   While balancing communitarian dignity vis-a-vis the dignity of private individuals, the scales must tilt in favour of communitarian dignity.  The laudable objective with which the state governments have introduced compulsory service bonds at the time of admission to postgraduate courses and super speciality courses could not be termed arbitrary as it was aimed to utilise the services of doctors who are the beneficiaries of government assistance to complete their education.

Justice Rao supported the precedent set in a previous case that moral considerations cannot be kept at bay and the judges are not expected to sit as mute structures of clay in the hall known as the courtroom, but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day”.   Although Justice Rao did not invoke BSD explicitly in this case, its influence was apparent in his reasoning, as the mandate to realise the objectives of the welfare state has been recognised as part of the basic structure in previous cases.

Also read: As Courts Rule on Constitution’s Basic Structure, Landmark Doctrine Turns Out to Be Elastic

It is not surprising, therefore, to find Justice Rao to voice his anguish in the manner he did in Madras Bar Association v Union of India on November 27.   He reiterated the previously-held view in L.Chandra Kumar v Union of India that the power of judicial review vested in the high courts and the Supreme Court is part of the basic structure; therefore, the tribunals cannot act as substitutes of the high courts and the Supreme Court, and their functioning is only supplementary and that all decisions of administrative tribunals will be subject to scrutiny before a division bench of the respective high courts.

He also supported the precedent set while upholding the creation of NCLT and NCLAT, on the basis of the principle that independent judicial tribunals for the determination of the rights of citizens and for adjudication of the disputes and complaints of the citizens is a necessary concomitant of the rule of law.  He underlined that the vesting of adjudicatory functions in tribunals was held to be not violative of the basic structure of the constitution, even when the court held the National Tax Tribunal Act, 2005 to be unconstitutional.

Relying on Supreme Court’s decision in Rojer Mathew which struck down the 2017 Rules, Justice Rao held that lack of judicial dominance in the search-cum-selection committee is in direct contravention of the doctrine of separation of powers and is an encroachment on the judicial domain.  Excessive interference by the executive in the appointment of the members would be detrimental to the independence of the judiciary and an affront to the doctrine of separation of powers, he reminded the Centre.

Justice Rao blamed the Centre for ignoring the binding precedents, while framing the 2020 Rules, even though they replicated 2017 Rules in respect of the constitution of the search-cum-selection committees, insofar as they do not ensure judicial dominance. He made it clear to the Centre that the sponsoring department should not have any role to play in the matter of appointment to the posts of chairperson and members of the tribunals.

4. Justice Sanjay Kishan Kaul

DoR: 25-12-2023
Current Seniority in Supreme Court: 9
No. of judgments authored: 85
No of judgments cited in : 44
No. of  basic structure cases: 2

In State of Gujarat v Utility Users Welfare Association, Justice Kaul held that in any adjudicatory function of the state commission, it is mandatory for a member having the legal experience to be a member of the bench. But it is not mandatory to appoint a high court judge as a chairperson of the State Electricity Commission, he held.

Besides, Justice Kaul has authored a concurring judgment in Justice K.S.Puttaswamy (Privacy) case which is known for its lucidity. Justice Kaul, in his judgment, he held that the right of privacy protects the inner sphere of the individual from interference from both state, and non-state actors and allows the individuals to make autonomous life choices.

While agreeing with the view expressly overruling the ADM Jabalpur case, Justice Kaul called it an aberration in the constitutional jurisprudence. He desired that the majority opinion in that case, declining any relief to a citizen whose rights stood suspended when Emergency is in force, should be buried ten fathom deep, with no chance of resurrection.

Justice Sanjay Kishan Kaul. Credit: Youtube

Justice Sanjay Kishan Kaul. Photo: Youtube

Justice Kaul’s reluctance to test president of the Jammu and Kashmir High Court Bar Association, Mia Abdul Qayoom’s detention order recently for its validity, while persuading the Centre to release him in lieu of his promise not to make any political statements, surprised observers.

Justice Kaul’s disagreement with the previous ruling in A.D.M.Jabalpur case made one believe that he stood for expansion of one’s rights rather than restricting them taking cover under an Emergency-like situation in Jammu and Kashmir.  But his latest judgment declaring the Shaheen Bagh-type protests unacceptable, and requiring them to be held in designated public places made one wonder whether he favoured shrinking of rights using specious reasoning.

Also read: Why Uncertainty Still Surrounds the Birth of the ‘Basic Structure Doctrine’

5. Justice S. Abdul  Nazeer

DoA: 17-02-2017
Current Seniority in Supreme Court: 11
Number of judgments authored: 71
Number of judgments cited in: 45
Number of Basic structure cases: 1

In Bharati Reddy v State of Karnataka and Others, Justice S. Abdul Nazeer held that judicial review, being a part of the basic structure of the constitution, cannot be ousted by Article 243-O of the constitution. Clause (b) of Article 243-O says that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a state. While a single judge misinterpreted the bar of Article 243-O as ousting high court’s jurisdiction, the division bench of the high court remanded the matter to the single judge.  The Supreme Court agreed with the division bench citing basic structure doctrine. The judgment, authored by Justice S. Abdul Nazeer, held that the writ petition filed by the voters, who are not the members of the Zilla Panchayat, challenging the election of the Adhyaksha of the Zilla Panchayat, is maintainable.

6. Justice Navin Sinha

DoA: 17-02-2017
DoR: 04-01-2023
Current Seniority in Supreme Court: 12
Number of judgments authored: 114
Number of judgments cited in : 81
Number of basic structure cases: 1

In Neetu Kumar Nagaich v State of Rajasthan and Others, Justice Navin Sinha reiterated the previously held view that the power of the constitutional courts to direct further investigation or reinvestigation is a dynamic component of its jurisdiction to exercise judicial review, a basic feature of the Constitution.  Though it has to be exercised with due care and caution and informed with self-imposed restraint, the plenitude and content thereof can neither be enervated nor moderated by any legislation, he has held.

In this case, a 3rd year student at the National Law University, Jodhpur mysteriously died, and his parents were dissatisfied with the investigation carried out by the state police.  The investigation had reached a dead end without identification of the offenders.  The Supreme Court set aside the closure report in the case, and directed a de novo investigation by a fresh team of investigators to be concluded within two months from September 16.

Also read: Eight Cases That Will Test Whether ‘Basic Structure Doctrine’ Can Safeguard India’s Democracy

7.  Justice Indira Banerjee

DoA: 07-08-2018
DoR: 23-09-2022
Current Seniority in Supreme Court: 14
Number of judgments authored: 39
Number of judgments cited in: 18
Number of basic structure cases: 1

In All India Institute of Medical Sciences v Sanjiv Chaturvedi and Others, Justice Indira Banerjee held that judicial decorum and propriety demanded that a judicial order can be vacated, varied, modified, recalled or reviewed by a bench of coordinate strength or larger strength or a higher forum, but not a smaller bench of lesser strength, except in cases where such authority to a smaller bench was expressly conferred or implicit in such order.

In this case, the chairman of the Central Administrative Tribunal, at the principal bench at Delhi had stayed proceedings pending before a Division Bench of CAT at Nainital. The chairman, being one amongst the equals, could not have stayed proceedings pending before a larger bench, she held, relying on the proposition that judicial review is part of the basic structure of the constitution.

8. Justice Sanjiv Khanna 

DoA: 18-01-2019
D0R: 13-05-2025
Current seniority in Supreme Court: 22
Number of judgments authored: 37
Number of judgments cited in: 16
Number of basic structure cases: 2

He authored the main judgment in Central Public Information Officer, Supreme Court of India v Subhash Chandra Agarwal, referred to earlier. In Ashwani Kumar v Union of India, he held that the doctrine of separation of powers, though not specifically engrafted, is constitutionally entrenched and forms part of the basic structure. In view of this, he declined the prayer of the petitioner in this case, the former Union minister, for a direction to parliament to enact a suitable standalone comprehensive legislation on custodial torture based on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the UN General Assembly.

9. Justice S. Ravindra Bhat

DoA: 23-09-2019
DoR: 20-10-2023
Current Seniority in Supreme Court: 28
Judgments authored: 25
Judgments cited in: 7

Although Justice Bhat is yet to hear a basic structure case in Supreme Court so far, the last one which he decided as Rajasthan high court chief justice is noteworthy.

Also read: In Deciding Constitutionality of Enactments, Justice Arun Mishra Always Deferred to Centre

In Milap Chand Dandia and Others v State of Rajasthan and Others, which he decided as the Chief Justice of Rajasthan high court on September 4 last year, Justice Bhat had declared Sections 7BB and 11(2) of Rajasthan Ministers Salaries Act, 2017 as arbitrary and contrary to Article 14 of the constitution and therefore, void. The Act provided that former chief ministers shall get for the remainder of their lives, a government residence, a car for their family members, telephone and a staff of 10 persons including a driver. In arrogating a section of the political executive, that is, former chief ministers to status of a ruling elite by assuring them significant largesse for life, amounts to saying that they are more equal than other public servants and citizens of India, he held.

The remaining 16 judges of the Supreme Court may yet be untested in the application of the BSD to constitutional litigation, as search within their judgments on basic structure doctrine has not yielded any results.  However, the possibility that they may sit in benches presided by or comprising some of these judges may well indicate how the scales of justice will tilt when the court begins to hear the pending basic structure cases.