Judges should follow judicial ''dharma'' irrespective of effect on career: Justice Nagarathna

Kochi, Mar 3 (PTI) Supreme Court judge, Justice B V Nagarathna, on Tuesday said that even if unpopular decisions may cost judges their elevation or extension, they should follow their oath of office or 'judicial dharma'.

Justice Nagarathna made the remark while speaking on the importance of judicial review in the interplay between transformative constitutionalism and the doctrine of basic structure, and how independence of judges was an integral part of it.

The topic of her speech was 'Transformative Constitutionalism and Basic Structure Doctrine: A Dialogue' at the Justice T S Krishnamoorthy Iyer memorial lecture held at the Kerala High Court here.

Justice Nagarathna, in her speech, also said that thinning out of personal liberty, often in the name of collective or public interest, "must be guarded against".

She said that a transformative Constitution, to achieve its goal of reform, must understand that it is best realised through constitutional discipline that treats personal liberty as foundational rather than dispensable for the sake of collective interest.

"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.

"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," the judge said.

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 further said that if transformative constitutionalism was to operate within the outer limits supplied by the basic structure doctrine, "there must exist a constitutional actor capable of policing those limits".

"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.

She said that judicial review frequently requires courts to invalidate legislation, restrain executive action, or set aside constitutional amendments enacted by political majorities, and these are not easy tasks as they often carry political consequences.

"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.

"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 apex court judge said that judicial independence can be ensured through security of tenure as well as transparent and structured appointment processes.

"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 realised not in institutional design alone, but in the manner in which judges discharge their office," she said.

She also said that while independence from external influence, political pressure, institutional intimidation or popular demand was necessary, judges should also be free to form and express their considered view of the law even when it diverges from their colleagues.

"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 speech, Justice Nagarathna also spoke about Justice Iyer, saying that he was "an eminent judge who dedicated his life to upholding justice and equality". "His contributions to the legal system are immense, and his legacy will continue to inspire generations of lawyers and judges to come," she said.

She further said that apart from his contributions in the public sphere, Justice Iyer was also known for his humility, kindness and compassion.

"He was a role model for many, and his legacy will continue to inspire generations to come," Justice Nagarathna said in her speech. PTI HMP ADB