“Ratio” of the judges 2 and the NJAC cases

The Supreme Court in Keshavanada Bharati held that the “basic structure” of the constitution is inviolable though fundamental rights could be violated. In Indira Nehru Gandhi and Minerva Mills it was held that from 24.04.1973, the validity of a statute has to be tested on the Basic Structure. Independence of Judiciary is one of the Basic features of the constitution. The independence of the judiciary is not about the independent discharge of the functions of a judge subsequent to his appointment but is all about the very appointment, i.e., who appoints. Who appoints the judges is the core of Independence of Judiciary.
The constitutional protection of the tenure of a judge, so too his salary, emoluments and pensions, are of little consequence in preserving independence of the judiciary. Independence could be secured only when the judiciary has primacy in the appointments. Therefore, the constitution has to be re-written and ought to be given a meaning different than its original text. The constitution vested the power of appointment in the executive but made it obligatory that the CJI shall always be consulted in the appointment of the Judges of the Supreme Court, so too, in the appointment and transfer of Judges of the High Courts along with the Governor and Chief Justice of the State concerned. It has been held that since the core of Independence of judiciary is in the appointment, the expression, “consultation with CJI” shall mean not merely concurrence but the primacy of the opinion of the CJI. It was further held that the “primacy” of the CJI shall mean not his individual opinion but the plurality of the opinion of his brother judges, namely, collegium of senior most 5 judges including the CJI. In other words, independence of Judiciary means a mechanism where the judges appoint themselves. The judges appointing themselves thus became an inalienable basic structure of the constitution which the parliament even by exercise of its constituent power with 2/3rd majority and ratification by the majority of the states cannot alter. By the Constitution 99th Amendment Act, the parliament sought to substitute collegium by the NJAC. Fali Nariman, Ram Jethmalani, Rajeev Dhavan, Arvind Dattar and others, great legal luminaries pleaded that NJAC is unconstitutional, because it is violative of the basic structure, namely, the collegium system of appointment, where judges appoint themselves. A five judge Constitution Bench led by Justice Khehar upheld the said plea and held that the NJAC is unconstitutional, because it is violative of the Judges 2 case! Any system of appointment of Judges where the judges do not have absolute primacy, where they cannot appoint themselves, was held to be violative of the “basic structure”!
Very few people might have read the judgment in Keshavanada Bharati, namely, the Fundamental Rights case, which runs into more than 800 pages, the Judges 1 case which runs into 918 pages, the Judges 2 case, 400 pages and the NJAC case, 1035 pages. Having not read the said judgments most of us do not have a clear idea as to what were the discussions and findings, and might be shocked to realise that what I’ve stated above is the crux. The Indian constitutional law as we understand and practice today, is contrary to the first principles of jurisprudence, irrational and absurd. The Basic Structure doctrine of the Keshavanada Bharati is the root cause of this absurdity. The Basic Structure “doctrine” has no foundation in jurisprudence. Constitution does not recognise it, does not speak about it. What the constitution recognizes, is the Fundamental Rights. In Golaknath’s case, the Supreme Court held that Fundamental rights cannot be abrogated even by a constitutional amendment. In the Keshavanada Bharati case it was held that the fundamental rights can be infringed but not the “basic structure”. Yet, it was hailed as the fundamental rights case. Till Keshavanada Bharati, Article 32 used to be invoked, complaining violation of Fundamental Rights, but post that, complaining violation of the “basic structure”!
The consequences of the Keshavananda Bharati are incurable. Today one can invoke Article 32 complaining no violation of one’s Fundamental Rights at all. No legal rights whatsoever at all, but, merely on an allegation of “infringement of Basic Structure”. The PIL Industry prospered on the fertile soil of infringement of the Basic Structure. Today, matters of legislative and executive policy are challenged complaining violation of Basic Structure. Articles 141 & 142 today assume roles which are unknown to law because of the “doctrines” of Basic Structure/PIL. The courts no longer declare law but make the laws, which is forbidden. Today, the judges rule this country, they legislate invoking Articles 141 & 142. They entertain petitions which allege no violation of fundamental rights, but infringement of Basic Structure. The great luminaries swear by what is contrary to reason and common sense because it is profitable to do so; deepa sthabham maha aschariam, namakkum Kittenam panam.
Famous words of Kunjan Nambiar, a great poet and story teller from ancient Kerala. Once Kunjan Nambiar, was attending a royal function in which a lavishly built lamp post (deepa sthambam) was being inaugurated by the King. The king naturally wanted all the poets to sing in praise of the royal lamp post for which the King was rewarding handsome money. Kunjan Nambiar who was reluctant to sing a fake praise, sang thus:
“Deepa Sthambham mahascharyam,
Namukkum kittanam panam,”

“The lamp post is a great wonder,
I too deserve a prize.”

The king realized his mistake and pardoned Kunjan Nambiar from “praising” further. Unfortunately, that King no more lives.