‘Unpopular Decisions May Cost Elevation, But Judges Must Follow Judicial Dharma’: Justice B V Nagarathna

Speaking at the Justice T S Krishnamoorthy Iyer Memorial Lecture held at the Kerala High Court, Justice Nagarathna delivered a lecture titled “Transformative Constitutionalism and Basic Structure Doctrine: A Dialogue”. Her address examined the interplay between transformative constitutionalism, the basic structure doctrine and judicial review, while highlighting the centrality of judicial independence.

Justice Nagarathna observed that judicial review plays a decisive role in maintaining constitutional discipline, especially when courts are required to examine legislative or executive action. “Even if judges know that unpopular decisions may cost them elevation, extension, or bring them into 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 that really matters," she said. 

“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,” she said.

The Supreme Court judge, also said, "Let me say that we judges should unite for the cause of justice, for we have nothing to lose except our independence. I would repeat this. Let us judges unite in this country for the cause of justice. For we have nothing to lose except our independence. And once we lose our independence, we cease to be judges. There are temptations looming all over. But according to me, the shortest word and the shortest sentence in the English language is ‘no’. Whatever be the temptations, just say the word no. And there you are clear in your mind and for all times to come."

"Security of tenure insulates judges from retaliation. Transparent and structured appointment processes reduce partisan capture. How we appoint our judges, whom we choose as our judges, what is the extent of neutrality the recommended candidates have, these are all very relevant in these days. Institutional autonomy, administrative and financial, prevents indirect nudges of pressure. These safeguards do not make judges infallible, but they make principled adjudication possible. Ultimately, the true content of judicial independence is realized not in institutional design alone, but in the manner in which judges discharge their office," she added. 

Addressing concerns about personal liberty, the judge cautioned against its gradual erosion under the guise of collective interest. She said that thinning out of personal liberty, often in the name of collective or public interest, “must be guarded against”. A transformative Constitution, she noted, must treat liberty as foundational rather than expendable. “Transformation, in this sense, presupposes restraint. This insight directs attention to the constitutional mechanisms that exist precisely to enforce such restraint. Among these, the basic structure doctrine occupies a distinctive place," she said. 

“The basic structure doctrine identifies the constitutional minimum. Its role is essentially negative: it tells us what constitutional change must not destroy. ..transformative constitutionalism supplies the constitutional trajectory. Its role is dynamic rather than prohibitory,” she added.

Clarifying the limits of both doctrines, Justice Nagarathna said transformative constitutionalism cannot be used to justify excesses of state power. The Supreme Court judge clarified that transformative constitutionalism cannot be invoked to justify erosion of negative liberty, dilution of habeas corpus, or normalisation of coercive power, because these strike at the very restraints the basic structure exists to protect.

“Equally, the basic structure cannot be invoked to freeze constitutional meaning at the moment of enactment, because a Constitution committed to justice cannot be indifferent to the conditions of its own application,” she said.

She emphasised that for transformative constitutionalism to operate within constitutional boundaries, an institutional guardian is necessary. “That actor is the judiciary exercising the power of judicial review. Without judicial review, the basic structure doctrine would be a mere constitutional slogan,” Justice Nagarathna said.

The judge acknowledged that judicial review often requires courts to invalidate legislation or restrain executive action, steps that may carry political implications. However, she stressed that judicial independence must not be compromised.

“Institutional autonomy, administrative and financial; prevents indirect nudges of pressure. These safeguards do not make judges infallible, but they make principled adjudication possible," she said. 

Highlighting the value of dissent within the judiciary, she added: “Separate and dissenting opinions are manifestations of intellectual autonomy. This is independence of the judiciary in its most enlightened form. 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,” Justice Nagarathna said.

In her address, she also paid tribute to Justice T S Krishnamoorthy Iyer, describing him as “an eminent judge who dedicated his life to upholding justice and equality” and noting that his legacy continues to inspire generations of lawyers and judges.