Supreme Court Justice B.V. Nagarathna said judges must honour their oath and judicial dharma even when unpopular decisions risk their elevation or extensions. She stressed that judicial review must balance transformative constitutionalism with the basic structure through courts.
Supreme Court Justice B.V. Nagarathna said that judges must uphold their oath and their judicial dharma, even when unpopular rulings might jeopardize their prospects for elevation or extensions.
She made these remarks while discussing the role of judicial review in balancing transformative constitutionalism with the basic structure doctrine, stressing that judicial independence is central to that balance.
Her address, titled “Transformative Constitutionalism and Basic Structure Doctrine: A Dialogue,” was delivered at the Justice T.S. Krishnamoorthy Iyer memorial lecture at the Kerala High Court.
Justice Nagarathna warned against the erosion of personal liberty under the guise of collective or public interest, saying such encroachments “must be guarded against.”
She explained that a Constitution committed to transformative change should recognise that reform is most effectively achieved through constitutional discipline that treats personal liberty as fundamental rather than expendable for collective goals.
She described the basic structure doctrine as identifying the constitutional baseline, with a principally negative function: it marks what constitutional change must not obliterate.
In contrast, transformative constitutionalism provides the forward-moving constitutional path; its role is dynamic rather than prohibitory. The judge emphasized that transformative constitutionalism cannot be used to justify curtailing negative liberty, weakening habeas corpus, or normalising coercive power, since these actions undermine the restraints that the basic structure doctrine seeks to protect.
Equally, she said, the basic structure doctrine cannot be used to freeze constitutional meaning at the moment of enactment, because a Constitution devoted to justice must respond to the realities of its application.
For transformative constitutionalism to function within the limits set by the basic structure doctrine, Justice Nagarathna argued, there must be a constitutional actor capable of enforcing those limits: the judiciary through judicial review. Without judicial review, she warned, the basic structure doctrine would amount to little more than a rhetorical slogan.
She acknowledged that judicial review often requires courts to strike down laws, restrain executive actions, or overturn constitutional amendments passed by political majorities decisions that can carry heavy political costs.
She said,
“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 judicial independence is supported by secure tenure and transparent, structured appointment systems, while administrative and financial autonomy help prevent indirect pressures.
Such safeguards do not render judges infallible, she observed, but they enable principled decision-making. Above institutional arrangements, she added, true judicial independence is realized through the way judges perform their duties.
Justice Nagarathna also argued that, while freedom from external pressures political influence, institutional intimidation, or popular demand is essential, judges must also be free to voice considered views that differ from their colleagues.
She called separate and dissenting opinions expressions of intellectual autonomy and described them as “independence of the judiciary in its most enlightened form.”
A judicial opinion, she said, should be an articulation of constitutional conviction rather than the product of compromise for the sake of consensus.
She said,
“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,”
In closing, Justice Nagarathna paid tribute to Justice T.S. Krishnamoorthy Iyer, calling him “an eminent judge who dedicated his life to upholding justice and equality” and praising his humility, kindness, and compassion.
She said his notable contributions will continue to inspire future generations of lawyers and judges.