Without Independent And Fearless Judges, India Will Enter A Dark Age : Former SC Judge Justice RF Nariman

"If you don't have independent and fearless judges, say good bye. There is nothing left. As a matter of fact, according to me, if finally, this bastion falls, or were to fall, we will enter the abyss of a new dark age," Retired Justice Rohinton Nariman said on Friday.

Justice Nariman also responded to the recent attack by the Vice President Jagdeep Dhankar against the basic structure doctrine laid down in the Kesavanda Bharti’s case and said that at least two attempts were made to undo it but those failed. The doctrine was here to stay, Justice Nariman said.

“So let us remember when we speak about the basic structure doctrine, that it is a doctrine that has been used by minority judges first. It is a doctrine that was sought to be undone twice and that was sought to be done over 40 years ago. So let us be clear that this is something that has come to stay. And speaking for myself, thank God it is.”

Justice Nariman added that the doctrine, which bars the parliament from amending or altering the basic structure of the constitution, was an extremely important “weapon” in the hands of the judiciary and has been used a number of times “to check an executive when it acts beyond the Constitution....”

Justice Nariman was delivering the 7^th MC Chagla Memorial lecture on, ”A tale of two constitutions, India and the United States.” The event was a collaboration between the Department of Law, Mumbai University and Chief Justice MC Chagla Memorial Trust.

Justice Nariman first gave a brief overview of the two Constitutions. He pointed out one difference and to say amendments to Indian constitution were easier than amendments to the American Constitution. Therefore, in over 250 years there were only 27 amendments in the US but over 100 amendments to the constitution of India in 74 years.

However, unlike the United States, a minimum of five unelected judges are trusted with the interpretation of the Constitution in India.

One such interpretation was on the supremacy of the Constitution, by the Supreme Court in Kesavanda Bharthi’s case, Justice Nariman said. “And once those five or more have interpreted that basic document (Constitution), it is your bounden duty as an authority under Article 144 To follow that,” he said in response to the Law Minister Kiren Rijiju’s remarks.

The first attempt to overturn the basic doctrine judgement was by a “pliable” Chief Justice during the emergency. “He constituted a bench of 13,” said Justice Nariman.

“The great Nani Palkhivala went there and convinced eight of the judges that this bench was wrongly constituted because the bench was constituted only to undo Kesavananda and the basic structure. So attempt one failed,” he added.

The second attempt came through the 42nd Amendment, which added two sub articles to Article 368 of the Constitution of India. “The purpose of those sub articles was that the courts cannot touch a constitutional amendment on any ground,” the former Supreme Court judge added.

The amendment was challenged in the Minerva mills case and fortunately for us, struck down by both majority and minority judges. “Chief Justice YV Chandrachud speaking for the majority and Justice Bhagwati otherwise speaking for the minority on Article 31, so attempt two also failed,” Justice Nariman explained.

Finally, Justice Nariman said that the doctrine was first used by minority judges and sought to be undone more than 40 years ago. But the doctrine stayed. “And speaking for myself, thank God it is.”

Justice Nariman also suggested that a constitutional bench should be constituted by the Supreme Court to iron out all issues regarding the appointment of Judge within a set time frame and the government’s silence after a certain period should be treated as deemed acceptance.