Supreme Court judge Justice B V Nagarathna on Tuesday said that judges must remain faithful to their oath of office and “judicial dharma” even if their decisions are unpopular and could affect their prospects of elevation or extension. Speaking at a memorial lecture at the Kerala High Court, she stressed that judicial independence and the power of judicial review are essential to preserving the Constitution’s basic structure and safeguarding personal liberty.
Justice Nagarathna delivered the remarks while addressing the Justice T S Krishnamoorthy Iyer Memorial Lecture at the Kerala High Court. Her lecture, titled “Transformative Constitutionalism and Basic Structure Doctrine: A Dialogue,” focused on the role of judicial review and the responsibility of courts in maintaining constitutional balance.
During the address, she underscored that the judiciary must act as the constitutional authority responsible for enforcing the limits set by the basic structure doctrine. According to her, the doctrine defines the minimum core of the Constitution that cannot be destroyed through amendments or legislative actions.
She explained that while transformative constitutionalism seeks to advance justice and reform within the constitutional framework, it must operate within boundaries protected by the basic structure doctrine. “Transformation, in this sense, presupposes restraint,” she said, adding that the doctrine plays a “distinctive” role by identifying the constitutional minimum that cannot be dismantled.
Justice Nagarathna also warned against weakening personal liberty in the name of broader public or collective interest. She said that a transformative Constitution must treat personal liberty as a foundational principle rather than something that can be set aside for collective goals.
“Thinning out of personal liberty, often in the name of collective or public interest, must be guarded against,” she said. She further clarified that transformative constitutionalism cannot be invoked to justify erosion of negative liberty, dilution of habeas corpus, or the normalisation of coercive state power.
At the same time, she noted that the basic structure doctrine should not be used to freeze constitutional meaning at the time the Constitution was enacted. A Constitution committed to justice, she said, must respond to changing social conditions.
Justice Nagarathna emphasised that the judiciary, through the power of judicial review, is the institution responsible for enforcing these constitutional limits. Without this power, she said, the basic structure doctrine would be reduced to “a mere constitutional slogan.”
She pointed out that judicial review often requires courts to invalidate legislation, restrain executive action, or set aside constitutional amendments enacted by political majorities. These actions can carry political consequences and may place judges under significant pressure.
Despite this, she said judges must remain steadfast. “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,” she said.
Justice Nagarathna added that judicial independence is supported by institutional safeguards such as security of tenure and transparent, structured appointment processes. Administrative and financial autonomy of the judiciary, she said, also helps prevent indirect pressure on judges.
However, she stressed that institutional design alone cannot ensure judicial independence. The true meaning of independence, she said, lies in how judges discharge their duties.
She also highlighted the importance of intellectual autonomy within the judiciary. Judges, she said, must be free to express their independent interpretation of the law, even when it differs from the views of their colleagues. Separate and dissenting opinions, she noted, reflect the independence of judicial thought.
“A judicial opinion is not a negotiation document; it is an articulation of constitutional conviction,” she said, adding that clarity in legal reasoning should not be diluted merely for consensus.
Justice Nagarathna also paid tribute to Justice T S Krishnamoorthy Iyer, describing him as an eminent jurist who devoted his life to justice and equality. She said his contributions to the legal system remain significant and continue to inspire future generations of lawyers and judges.
Beyond his work in the public sphere, she noted that Justice Iyer was also remembered for his humility, kindness and compassion. According to her, his legacy will continue to guide and inspire members of the legal community for years to come.
