Judicial Independence and Economic Emergency in India

Singhvi, Abhishek; Gautam, Khagesh

doi:10.1007/978-981-15-2997-9_4

Abhishek Singhvi³ &
Khagesh Gautam⁴

211 Accesses

Abstract

This chapter focuses on economic/financial emergency. The chapter begins by noting that the Indian Constitution, like its US counterpart, secures independence of the judiciary by providing for, inter alia, financial independence of the judiciary. Just like the Compensation Clause in the US Constitution, its Indian counterpart the Salary Clause provides that judicial salaries cannot be decreased during the time a judge is holding judicial office. But the Economic Emergency Clause of the Indian Constitution also provides that the President, during the time an economic emergency is proclaimed, can, inter alia, reduce judicial salaries. Whereas the power to proclaim economic emergency is subject to periodic Parliamentary review, the power to reduce judicial salaries is not subject to any such or other kind of independent review. Judicial independence is an extremely important constitutional value and the need to protect it has been accepted globally for a very long time now. In India, it is a settled proposition of constitutional law that an independent judiciary is a part of the basic structure of the Indian Constitution. Other provisions of the Constitution that conflict with the idea of judicial independence have been so interpreted in order to avoid the conflict. The Presidential power to reduce judicial salaries during an economic emergency presents just such a conflict and this article is an attempt to resolve it. This chapter argues that the Presidential power to reduce judicial salaries during an economic emergency is subject to judicial review and provides three independent grounds that justify such review. This chapter also lays down the basis of further work on financial emergency provisions in the Indian Constitution by attempting to briefly distinguish between “financial stability of India,” and “credit of India,” the two grounds on which an economic emergency can be invoked.

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Notes

1.
See Greene [1] (noting the presence of emergency powers in the constitutions around the world illustratively), Bjørnskov and Voigt [2] (relying upon the work of Elkins et al. to note that ninety percent of the Constitutions in the world contain emergency provisions written in their constitutions).
2.
Schmitt [3] [hereinafter ‘Carl schmitt, political theology’].
3.
Id. at 6. Schmitt defines “the exception” as, “The exception, which is not codified in the existing legal order, can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to a preformed law.” See also, Agamben [4] (noting that the etymology of “state of exception” has been referred to interchangeably, whereby the French referred to it as “state of siege,” the Italians as “emergency decrees” and the Anglo-Saxon as “martial law” and “emergency powers”).
4.
See generally, Scheppele [5], Issacharoff and Pildes [6], Gilbert [7] (noting that the constitutions of Canada and Australia derive their emergency powers through legislation rather than the constitution itself). See also Greene [1, pp. 19–21].
5.
See, e.g., Lee [8], Vladeck [9], Keith and Poe [10].
6.
See, e.g., Ex parte Milligan 71 U.S. (4 Wall.) 2, 125–26 (1866) (noting that the safety of the government is “essential” in a crisis, and therefore, justified the use of Suspension Clause); Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 650 (1952) (Jackson, J., concurring) (noting that the Suspension Clause is in fact the express provision for exercising emergency powers resultant of a crisis). In other words, the justification for the exercise of emergency powers has most commonly been “necessity” and its cognate. See also, Note, Development in the Law: The National Security Interest and Civil Liberties, 85 Harv. L. Rev. 1130, 1288–91 (1972), Issacharoff and Pildes [6, pp. 296, 296–97], Tyler [11], Greene [12], Davidson [13] (relying on Lucas v. South Carolina Coastal Council 505 U.S. 1003, 1029 (1992) to assert that doctrine of emergency provides a clear exemption from liability to avert imminent harm).
7.
See Us const.; Fisch [14] (observing that, “Neither the term ‘emergency’ nor any cognate of comparable generality appears in the text of the United States Constitution.”).
8.
Fisch [14, p. 389, 391]. See also Fatovic [15].
9.
Carl schmitt, political theology 6; The federalist No. 23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). Whereas Schmitt argued that the power to deal with emergencies, “…cannot be circumscribed factually and made to conform to a preformed law.,” arguing for grant of emergency powers, Hamilton argued, “These powers ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them.” (Emphasis in Original). See also, Fatovic [15, p. 257] (noting that the impossibility to ascertain the varying degrees of emergencies served as a major justification of unilateral use of executive powers for Hamilton and others.); Miller v. United States, 78 U.S. 268, 305 (1871) (observing that there can be no restrictions on the power to declare and prosecute war).
10.
Ex parte Milligan, 71 U.S. 2, 121 (1866).
11.
Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934).
12.
See, e.g., Currie [16], Meyler [17].
13.
Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 426 (1934).
14.
Fisch [14] (observing that, “Neither the term “emergency” nor any cognate of comparable generality appears in the text of the United States Constitution.”), Issacharoff and Pildes [6, pp. 296, 296–97], Martin [18], Gilbert [7, pp. 308–12], Lee [19].
15.
Bjørnskov and Voigt [2] (relying upon the work of Elkins et al., to note that 90% of the Constitutions in the world contain emergency provisions written in their constitutions).
16.
Bhutan const., art. 33 (2008) translation at http://www.nationalcouncil.bt/assets/uploads/files/Constitution%20%20of%20Bhutan%20English.pdf.

The Druk Gyalpo may, on the written advice of the Prime Minister, proclaim an emergency if the sovereignty, security, and territorial integrity of Bhutan or any part thereof is threatened by an act of external aggression or armed rebellion.

Bangl. const. art. 141A (1972) translation at http://bdlaws.minlaw.gov.bd/sections_detail.php?id=367&sections_id=24703.

If the President is satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance, he may issue a Proclamation of Emergency for one hundred twenty days.

Sri lanka const. art. 154 J §1 (1978) translated at https://www.parliament.lk/files/pdf/constitution.pdf.

Upon the making of a proclamation under the Public Security Ordinance or the law for the time being in force relating to public security, bringing the provisions of such Ordinance or law into operation on the ground that the maintenance of essential supplies and services is, threatened or that the security of Sri Lanka is threatened by war or external aggression or armed rebellion, the President may give directions to any Governor as to the manner in which the executive power exercisable by the Governor is to be exercised. The directions so given shall be in relation to the grounds specified in such Proclamation for the making thereof.

Pakistan const. art. 232 § 1 (1973)

If the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency.

India Const. art. 352, § 1

If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the proclamation.
17.
Thai. const. § 21 (2014).

In case of emergency and necessary urgency in order to maintain national security, public safety, national economic security or to avert public calamity or there is necessary to have a law on taxes, duties or currency which requires an urgent and confidential deliberation, the King has the prerogative to issue an Emergency Decree which shall have the force as an Act.

Malay. Const. art. 150 §1 (1957)

If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.
18.
See, e.g., Iyer [20], Omer [21], See also, Rosenn [22], Beloff [23], Bari [24].
19.
See India Const. Part XVIII.
20.
India Const. art. 352, § 1.
21.
Id. at art. 356, § 1.
22.
Id. at art. 360, § 1.
23.
See India Const. art. 352, § 4; art. 356, §§ 3, 4; art. 360, § 2.
24.
India Const. art. 355.
25.
Id. at art. 358.
26.
Id. at art. 359.
27.
See India Const. Part III. Part III of the Indian Constitution provides for several fundamental rights, including the right to equality, freedom of speech and expression, life and personal liberty and other such civil and political rights, including the right to approach the Supreme Court of India directly, in writ proceedings, for the enforcement of these fundamental rights.
28.
India Const. art. 19. Article 19 provides the following rights to all citizens of India—freedom of speech and expression, the right to assemble peaceably without arms, the right to form associations or unions or cooperative societies, the right to move freely throughout the territory of India, the right to reside and settle in any part of the territory of India, and the right to practice any profession, or to carry on any occupation, trade or business. All these rights are subject to reasonable restrictions on grounds listed in article 19(2) to 19(6).
29.
India Const. art. 358, § 1—

While a Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression is in operation, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect… (Emphasis Added).
30.
India Const. art. 359, § 1—

Where a proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
31.
India Const. art. 359, § 1.
32.
See, India Const. art. 32; art. 226.
33.
Constituent Assembly Debates, Vol. VII, 951–953 (Dec. 9, 1948). Clarifying the scope of Article 32, Dr. Ambedkar noted that the purpose of the article was ‘to give general power’ as well as to ‘propose particular remedies’. Further, he reiterated that “the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.” See also Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996, 998–99 (Gajendragadkar, J.) (discussing the right to move the Supreme Court for the enforcement of fundamental rights)

It is in the light of this position that the Constitution makers thought it advisable to treat the citizen’s right to move this court for the enforcement of their fundamental rights as being a fundamental right by itself. The fundamental right to move this court can, therefore, be appropriately described as the corner-stone of the democratic edifice raised by the Constitution.
34.
Constituent Assembly Debates, Vol. VII, 953 (Dec. 9, 1948). Speaking in context of Art. 32 of the Indian Constitution, Dr. Ambedkar remarked:

If I was asked to name any particular article in this Constitution as the most important—an article without which this Constitution would be a nullity—I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance.

See also, L. Chandra Kumar v. Union of India (1997) 3 SCC 261, 299–302 (Ahmadi, C.J.) (noting that Dr. Ambedkar’s words regarding the importance of Art. 32 and 226 have been ‘reiterated in several judgements’ and they hold ‘unique significance’ in the constitutional scheme and that the power to review is a part of the basic structure).
35.
See State of Madras v. V. G. Row AIR 1952 SC 196, 199 (Patanjali Shastri J.)

…[O]ur Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution…the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the “fundamental rights,” as to which this Court has been assigned the role of a sentinel on the qui vive.

High Court of Bombay v. Shirishkumar Rangrao Patil (1997) 6 SCC 339, 335 (Ramaswamy, J.)

In a democracy governed by rule of law, under a written constitution, judiciary is the sentinel on the qui vive to protect the fundamental rights and posed to keep even scales of justice between the citizens and the state or the states inter se. Rule of law and judicial review are basic features of the Constitution. As its integral constitutional structure, independence of the judiciary is an essential attribute of rule of law. Judiciary must, therefore, be free from pressure or influence from any quarter. The Constitution has secured to them, the independence.
36.
See India Const. art. 20, §§ 1, 2, 3. Article 20 provides for three key rights to defendants in criminal proceedings, and the right is available to all ‘persons’ as against article 19 the rights whereunder are available only to “citizens”—(1) protection from ex post facto laws; (2) protection against double jeopardy; and (3) protection against self-incrimination.
37.
See India Const. art. 21. Article 21 provides that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Even though article 21 differs from the text of the 5th and 14th Amendments to the US Constitution significantly in that it does not use the phrase “due process,” it has been held by the Supreme Court of India that the phrase “procedure established by law” means a just, fair and reasonable procedure. See, e.g., Maneka Gandhi v. Union of India, (1978) 1 SCC 248. The position in India, after Maneka Gandhi is that the phrase “procedure established by law” is read as analogous to “due process of law.” See State of Punjab v. Dalbir Singh, (2012) 3 SCC 346, 375, holding that, “… in our Constitution the concept of “due process” was incorporated in view of the judgment of this Court in Maneka Gandhi.” (Internal Citations Omitted); Selvi v. State of Karnataka, (2010) 7 SCC 263, 315, where the Supreme Court interpreted “right against self-incrimination” through the ethos of “substantive due process” and “right to fair” trial; Sunil Batra v. Delhi Admin., (1978) 4 SCC 494, 518, holding that, “True, our Constitution has no ‘due process’ clause …; but, in this branch of law, after [R.C. Cooper v. Union of India, (1970) 1 SCC 248] and Maneka Gandhi, the consequence is the same.”; See also Ramraj [25], Sripati [26], Mohapatra [27], Chandrachud [28].
38.
It is beyond the brief of this chapter to examine this question in detail. The point, however, made here is purely on the basis of the text of article 358. Article 358(1) provides that,

When a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. (Emphasis Supplied).

See India Const. art. 358. The phrase “rights so mentioned” is liable to be interpreted so as to attract the same limitations to the power to suspend judicial proceedings as they attach to the power to suspending the rights. However, it is arguable that the phrase “rights so mentioned” is used in the context of the Presidential order suspending judicial proceedings and not the Presidential power suspending the rights, and thus the power to suspend judicial proceedings does not attract the same restrictions as are attached to the power to suspend rights.
39.
See Meyler [17, p. 539].
40.
See generally Vladeck [9, p. 149, 184] (noting that Neagle and Debs cases are often cited to support the concept that the President by virtue of Take Care Clause, has emergency powers nowhere explicit in the Constitution); Ackerman [29] (emphasizing the need for a supplementary constitution which becomes enforceable in the times of emergencies).
41.
Out of the several widely available commentaries on the Indian Constitution none deal with the question of economic emergency in any detail except perhaps for providing some basic textual analysis. See Jain [30] (highlights the procedure for declaring financial emergency and its implication on centre–state relations), Datar [31] (delineating the legislative history of Article 360), Basu [32] (making only a rudimentary interpretation of the text of Article 360 to ascertain a broad procedure for proclaiming financial emergency), Shukla [33] (simply makes a textual analysis of the actual text of Article 360). The Supreme Court of India has not yet been presented with any petition that involved a substantial question of law where article 360 was required to be interpreted. Furthermore, whereas article 352 has been invoked thrice and 356 has been invoked more than a 100 times, article 360 has never been invoked in more than 70 years of the Indian republic. See Austin [34], Tope [35], Sorabjee [36], Dam [37].
42.
See, e.g., L. Chandra Kumar v. Union of India (1997) 3 SCC 261, 299–302 (Ahmadi, C.J.).
43.
Singh [38].
44.
Clinton Rossiter in his magisterial study of emergency powers under the US Constitution divided emergency powers into three categories, i.e., war, rebellion and economic depression. But he also acknowledged the existence of emergency powers in situations of natural disasters, riots and strikes. See Rossiter [39]. More recently Oren Gross and Fionnauala Ni Aolain in their study of emergency powers also accept that emergency powers have been used during economic depressions and in natural disasters. See Gross and Aolain [40]. See also Scheuerman [41].
45.
Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579 (1952).
46.
See, e.g., Lobel [42]. Lobel notes that,

In response to the post-war situation… Congress enacted hundreds of statutes providing for broad emergency power. By the 1970s, some 470 such statutes existed, delegating power to the executive over virtually every facet of American life. Some of the legislation contained positively draconian provisions. For example, the Internal Security Act of 1950 authorized the President to detain all persons whom the government had a “reasonable ground” to believe “probably” would commit or conspire to commit acts of espionage or sabotage… Moreover, in most of the emergency legislation, vague terms triggered executive power for unspecified lengths of time. State legislatures followed the federal example, delegating broad emergency power to governors.
47.
See, e.g., Carl Schmitt, Political Theology 6; The Federalist No. 23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed., 1961), Fatovic [15, p. 257] (noting that the impossibility to ascertain the varying degrees of emergencies served as a major justification of unilateral use of executive powers for Hamilton and others.); Miller v. United States, 78 U.S. 268, 305 (1871) (observing that there can be no restrictions on the power to declare and prosecute war), Vermeule [43].
48.
Constituent Assembly Debates, Vol. X–XII, 361 (Oct. 16th, 1949).
49.
India Const. art. 360, § 1.
50.
Kirsch [44] (“When a disaster strikes, markets may fail to provide needed goods at prices that are socially and politically acceptable.”).
51.
India Const. art. 360, § 4.
52.
Kirsch [44, pp. 1235, 1258].
53.
Kirsch [44, pp. 1235, 1258–1259].
54.
Posner [45].
55.
India Const. art. 360, § 2, cl. a.
56.
Id. at art. 360, § 2, cl. b.
57.
Id. at art. 360, § 2, cl. c. It is important, for clarify, to note the entire text of this clause—“shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament.”
58.
See, e.g., Tope [35], Sorabjee [36].
59.
India Const. art. 360, § 3.
60.
Id. at art. 360, § 4, cl. a(i).
61.
Id. at art. 360, § 4, cl a(ii).
62.
Id. at art. 360, § 4, cl. b.
63.
That the Indian Constitution is a based on the principle of rule of law does not require any elaborate exposition. However, for a general reflective statement, see S. P. Gupta v. Union of India, (1981) Supp. SCC 87, 223–24, stating that:

The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective.
64.
Several international documents like the “Bangalore Principles,” the “New Delhi Declaration,” the “Montreal Principles,” the “United Nations Basic Principles” etc. all endorse and uphold the principles of judicial independence as a fundamental constitutional principle. See, e.g., 7th U.N. Congress on the Prevention of Crime and the Treatment of Offenders, Basic Principles on the Independence of the Judiciary, 60 U.N. Doc. A/CONF.121/22/Rev.1 (Aug. 26–Sep. 6, 1985) art. 1, which states that “the independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.”; Judicial Integrity Group, Bangalore Principles of Judicial Conduct, ESC Res. 2006/23 (July 27, 2006); U.N. ESCOR, Strengthening Basic Principles of Judicial Conduct, UN Doc E/RES/2006/23 (July 27, 2006), Value 1 “Independence”; International Bar Association, Minimum Standards for Judicial Independence (1982) (“New Delhi Declaration”); First World Conference on the Independence of Justice, Universal Declaration on the Independence of Justice (June 10, 1983) (“Montreal Declaration”).
65.
Singhvi [46].
66.
India Const. art. 32; art. 226.
67.
Constituent Assembly Debates, Vol. VII, 953 (Dec. 9, 1948) (speech of Dr. B.R. Ambedkar).
68.
See, e.g., State of Madras v. V.G. Row AIR 1952 SC 196 (Patanjali Shastri J.); High Court of Bombay v. Shirishkumar Rangrao Patil (1997) 6 SCC 339, 335 (Ramaswamy, J.).
69.
India Const. art. 32, 129, 131, 132, 133, 134, 136, 142 and 143; Jain [30]. By art. 129, the Supreme Court has the power to commit a person for its contempt; by art. 131, the Supreme Court has original jurisdiction to decide inter-governmental disputes; by arts. 132–134 and 136, the Supreme Court has appellate jurisdiction in all civil or criminal matters of the country; by art. 32, the Supreme Court has power to enforce the fundamental rights; by art. 137, the Supreme Court has the power to review its own decisions; by art. 142, the Supreme Court has the power to make any order for doing complete justice in any case; by art. 143, the Supreme Court has advisory jurisdiction by which on consultation of the President, the Court may render advisory opinions on questions referred by the President.
70.
Jain [30] (“The Supreme Court is a multi-jurisdictional Court and may be regarded as the most powerful Apex Court in the World.”), Sinha [47].
71.
See, e.g., High Court of Bombay v. Shirishkumar Rangrao Patil (1997) 6 SCC 339, 335 (Ramaswamy, J.)

In a democracy governed by rule of law, under a written constitution, judiciary is the sentinel on the qui vive to protect the fundamental rights and posed to keep even scales of justice between the citizens and the state or the states inter se. Rule of law and judicial review are basic features of the Constitution. As its integral constitutional structure, independence of the judiciary is an essential attribute of rule of law. Judiciary must, therefore, be free from pressure or influence from any quarter. The Constitution has secured to them, the independence.
72.
The Federalist No. 78, at 529 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
73.
The Declaration of Independence, para. 11 (U.S. 1776). The Declaration, “…condemned King George because he had ‘made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries’.” See Entin and Jensen [48].
74.
See, e.g., Constituent Assembly Debates, Book 3, Vol. VIII, 253 (May 24, 1949) (Speech of M. A. Ayyangar).

The Supreme Court is the watchdog of democracy. It is the eye and the guardian of the citizens’ rights. Therefore, at every stage, from the stage of appointment of the judges, their salaries and tenure of office, all these have to be regulated now so that the executive may have little or nothing to do with their functioning.
75.
See India Const. art. 124, § 2 (Supreme Court); India Const. art. 217 § 1 & art. 224 § 3 (High Court). The tenure of a Supreme Court judge is till the age of 65 years, and the tenure of a High Court judge is till the age of 62 years. In fact, in Canada, Prof. Colvin opines that tenure and financial security are equally important and put both at same footing. See also, Colvin [49].
76.
A Supreme Court judge can be removed by the President only after,

…[A]n address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of the House present and voting [and] presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity.

See India Const. art. 124, § 4. Similarly, a judge of the High Court may be removed if the two Houses of Parliament pass a resolution for his removal, by a special majority, for proved misbehaviour or incapacity. Id. at art. 217 § 1 (b).
77.
India Const. art. 125, § 1.
78.
Written in the form of a proviso, the relevant clause provides that the salaries and allowances of Supreme Court judges cannot be varied to their disadvantage after their appointment. See India Const. art. 125, § 2 proviso—“Provided that neither the privileges nor the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.”
79.
A High Court Judge may only be removed if the two Houses of Parliament pass a resolution for his removal, by a special majority, for proved misbehaviour or incapacity. See India Const. art. 217 § 1 (b).
80.
Constituent Assembly Debates, Book 1, Vol. I—VI, 897 (July 29, 1947) (Speech of M. Ayyangar).

It ought not to be left to the discretion of the President as to what the salary [of the judges] should be…[T]he salary ought not to be varied by the Legislature as long as a person who has occupied the post continued there.
81.
The key indicators of judicial independence are—(1) appointment; (2) tenure and remuneration; (3) operational independence; (4) decisional independence; and (5) personal independence. See Ananian-Welsh and Williams [50].
82.
Entin [51], The Queen v. Marc Beauregard, [1986] 2 S.C.R. 56, 74 (Canada).
83.
Colvin [49].
84.
See Ananian-Welsh and Williams [50, p. 593, 597], Colquitt [52], Wheeler [53]. The Supreme Court of India seems also to have accepted that public perception is very important in maintaining public confidence in judiciary which in turn is important to maintain judicial independence. See, e.g., K. Veeraswami v. Union of India, (1991) 3 SCC 655, 705 (Justice Shetty for himself and Justice Venkatachaliah, Justice Ray & Justice Sharma concurring, Justice Verma dissenting),

The judiciary has no power of the purse or the sword. It survives only by public confidence and it is important to the stability of the society that the confidence of the public is not shaken. The Judge whose character is clouded and whose standards of morality and rectitude are in doubt may not have the judicial independence and may not command confidence of the public. He must voluntarily withdraw from the judicial work and administration. (Emphasis added).
85.
Other constitutions also provide similar protections to judicial salaries and allowances. See Australia Constitution s 72 cl. (iii) which provides that Australian Parliament can fix judicial salaries but these salaries cannot be reduced during the continuation of the office. However, the Pennsylvania Constitution provides that judicial salaries cannot be reduced during the term of office, “…unless by law applying generally to all salaried officers of the Commonwealth.” Pa. Const. art. V, § 16(a).
86.
US Const. art. III, § 1; The Federalist No. 79, at 531 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) where Hamilton said, “Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support.” (Emphasis added).
87.
For example, the Canadian Constitution provides that judicial salaries “shall be fixed.” See Canada Const. art. 100—“The Salaries, Allowances and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges therefore are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada”.
88.
The Federalist No. 79, at 531 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (Emphasis provided).
89.
Singhvi [46]. Cf. European Commission v. Poland Case No. C-619/18 (2018) (noting that the reduction of the retirement age of judges from 70 to 65 violated the principles of judicial independence), Kelly [54] (highlighting the reduction in the salaries of the judges in Ireland to their disadvantage).
90.
Singhvi [46].
91.
Kaufman [55].
92.
US Const., art. III, § 1.
93.
In the third reported case on the point, O’Malley v. Woodrough, 307 U.S. 277 (1939), Justice Frankfurter, writing for the Court, noted that Evans v. Gore, 253 U.S. 245 (1920) was the first case that raised a question pertaining to the Compensation Clause. See O’Malley v. Woodrough, 307 U.S. 277, 280 (1939).
94.
Evans v. Gore, 253 U.S. 245 (1920).
95.
Id. at 246–47.
96.
Id. at 248 (1920) (Van Devanter, J.) (“With what purpose does the Constitution provide that the compensation of the judges ‘shall not be diminished during their continuance in office’?”).
97.
Id. at 253–54. The original intent behind the Compensation Clause was also to, “…protect federal judges from external pressures that might keep the judges from acting impartially.” On this basic purpose there was never any disagreement amount the founding fathers of the US Constitution. See Entin and Jensen [48, pp. 965, 969–70, 974].
98.
Evans v. Gore, 253 U.S. 245, 263–64 (1920).
99.
Id. at 265 (Holmes, J. dissenting, Brandeis, J. concurring). (“The exemption of salaries from diminution is intended to secure the independence of judges, on the ground, as it was put by [Alexander Hamilton] in [The Federalist No. 79] that ‘a power over a man's subsistence amounts to a power over his will’.”).
100.
Id. at 265–66.
101.
O’Malley v. Woodrough, 307 U.S. 277 (1939).
102.
Id. at 278–79.
103.
Justice Frankfurter cited Canadian, Australian and South African decisions to support his point that the decision in Evans v. Gore did not lay down good law. See O’Malley v. Woodrough, 307 U.S. 277, 281 (1939) (Frankfurter, J.)

However, the meaning which Evans v. Gore imputed to the history which explains Article III, § 1, was contrary to the way in which it was read by other English speaking courts. The decision met wide and steadily growing disfavour from legal scholarship and professional opinion. Evans v. Gore itself was rejected by most of the courts before whom the matter came after that decision. (Internal Citations Omitted).
104.
Id. at 281–82

Having regard to these circumstances, the question immediately before us is whether Congress exceeded its constitutional power in providing that United States judges appointed after the Revenue Act of 1932 shall not enjoy immunity from the incidences of taxation to which every-one else within the defined class of income in subjected.
105.
Id. at 283–294.
106.
United States v. Will, 449 U.S. 200 (1980).
107.
See the narration of facts and state of the question of law raised in the case, respectively, in United States v. Will, 449 U.S. 200, 205–210, 221 (1980).
108.
This distinction was noted by the US Supreme Court in United States v. Hatter, 532 U.S. 557 (2001).
109.
See United States v. Will, 449 U.S. 200, 217–221 (1980).
110.
Id. at 217–18 (1980) (Berger, C.J.).

The Compensation Clause has its roots in the long standing Anglo-American tradition of an independent Judiciary. A Judiciary free from control by the executive and the legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government. Our constitution promotes that independence specifically by providing [for the Compensation Clause].
111.
See United States v. Will, 449 U.S. 200, 217–221 (1980); Cf. Evans v. Gore, 253 U.S. 245, 249–253 (1920).
112.
Id. at 221.
113.
In United States v. Will, 449 U.S. 200 (1980), “…the Court emphasized the framers’ concern with protecting judicial independence.” Entin and Jensen [48, p. 965, 977].
114.
United States v. Will, 449 U.S. 200, 229 (1980).
115.
Id. at 226, 230.
116.
United States v. Hatter, 532 U.S. 557 (2001).
117.
Id. at 564 (Breyer, J.)

We also agree with Evans insofar as it holds that the Compensation Clause offers protections that extend beyond a legislative effort directly to diminish of judge’s pay, say, by ordering a lower salary…otherwise a legislature could circumvent even the most basic compensation close protection by enacting a discriminatory tax law, for example, that precisely but indirectly achieved the forbidden effect. (Internal Citations Omitted).
118.
Id. at 569.
119.
Id. at 571.
120.
Id.
121.
Id.
122.
Id. at 567 (Breyer, J.) (“We now overrule Evans insofar as it holds that the Compensation Clause forbids Congress to apply generally applicable, nondiscriminatory tax to the salaries of federal judges, whether or not they were appointed before the enactment of the tax.”).
123.
Id.

The Court’s opinion in Evans began by explaining why the Compensation Clause is constitutionally important, and we begin by reaffirming that explanation. As Evans Points out … the Compensation Clause, along with the Clause securing federal judges appointments “during good behavior” …helps to guarantee what Alexander Hamilton called the “complete Independence of the courts of Justice.”
124.
See, e.g., United States v. Hatter, 532 U.S. 557, 569 (2001), Entin [51, p. 25, 31] (noting that, “[Compensation Clause] cases establish a baseline principle: constitutional prohibitions against diminishing judicial compensation mean that the other branches may not reduce the salaries paid to judges once those salaries have vested.”).
125.
See, e.g., Entin [51, p. 25, 31].
126.
Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441, 522 (Pandian, J. concurring), “[I]t is the cardinal principle of the Constitution that an independent judiciary is the most essential characteristic of a free society like ours..”
127.
Singh [56].
128.
See, e.g., L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
129.
See, e.g., Pareena Swarup v. Union of India, (2008) 14 SCC 107.
130.
See, e.g., Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441; All India Judges Association (3) v. Union of India, (2002) 4 SCC 247; Madras Bar Association v. Union of India, (2010) 11 SCC 1.
131.
Pareena Swarup v. Union of India, (2008) 14 SCC 107, 111.
132.
Jain [30]

The members of the Constituent Assembly were very much concerned with the question of independence of the Judiciary and, accordingly, made several provisions to ensure this end.41 The Supreme Court has itself laid emphasis on the independence of the judiciary from time to time. As the Court has observed recently in Thalwal “The constitutional scheme aims at securing an independent judiciary which is the bulwark of democracy.” (Internal citations omitted.)
133.
K. Veeraswami v. Union of India, (1991) 3 SCC 655, 697.
134.
The Prevention of Corruption Act, No. 49 of 1988, India Code (1988) vol. 4 § 13(1)(e). Sub-clause (e) to §13(1) states that a public officer has committed the offence of criminal misconduct if he, or any person on his behalf, is or has been, at any time during his office tenure, been in the possession of resources or property disproportionate to his known sources of income. The explanation to sub-clause (e) clarifies that the term “known sources of income” to mean income received from a lawful source.
135.
See K. Veeraswami v. Union of India, (1991) 3 SCC 655. The majority opinion of the Supreme Court in this case rejected the contention of the appellant to interpret Section 6 ejusdem generis. Section 6 stipulated that previous sanction of the appointing authority was necessary for the cognizance of an offence. The majority held that clause (c) of Section 6 reading “in case of any other person…” the words any other person was applicable to the judges. In other words, the roles of judges were essentially brought under the ambit of the Prevention of Corruption Act, and now fall under the category of “public servant.” A public servant can now be prosecuted for offences specified in the Prevention of Corruption Act with the prior sanction “of the authority competent to remove him from his office.” Section 6 providing for prior sanction from the competent authority and its direction that no court shall take cognizance of the offence under Section 5(1) without such prior sanction is a protection for Judges from frivolous and malicious prosecution.
136.
Id. at 709.
137.
Id.
138.
Id. at 708–09.
139.
Id. at 695.
140.
See generally Union of India v. Sankalchand Himatlal Sheth, (1977) 4. SCC 193, 224 (Chandrachud, J.)

Judges of the High Court owe their appointment to the Constitution and hold a position of privilege under it. They are required to “uphold the Constitution and the laws”, “without fear” that is without fear of the executive; and “without favour” that is without expecting a favour from the executive. There is thus a fundamental distinction between the master and servant relationship between the government and the Judges of High Courts and the Supreme Court.
141.
K. Veeraswami v. Union of India, (1991) 3 SCC 655, 705.
142.
See, e.g., All India Judges Association v. Union of India, (1993) 4 SCC 288; C. Ravichandran Iyer v. Justice A. M. Bhattacharjee, (1995) 5 SCC 457; Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193.
143.
Gautam [57].
144.
See, e.g., Vermeule [58], arguing that,

[The] current doctrine ignores half of the Compensation Clause conundrum, precisely the half that the judges are most likely to ignore. The conundrum of the Clause is that enforcement of a rule protecting judicial independence is committed to judges who, by virtue of the rule’s subject matter, have a financial interest in maximizing their compensation, whether or not that is the legally accurate outcome.
145.
See India Const. art. 125 § 1, which states that the salaries of the judges of the Supreme Court will be paid, as determined by the Parliament by law, and until such provision is made, such salaries as are specified by the Second Schedule. In the USA, “Although budget allocations are dependent on Congress, budget estimates are prepared by the Judiciary’s own officials and transmitted by the Executive to Congress without revision.” See Colvin [49, p. 229, 245].
146.
On this issue, the High Court of Australia (which is the Australian apex court) has also expressed similar views. In Austin v. Commonwealth, 215 CLR 185 (2003) (High Court of Australia), the Court held that, “…by regulating an aspect of judicial remuneration, the superannuation tax scheme impermissibly interfered with a state’s freedom to determine the remuneration of its judges.” See Ananian-Welsh and Williams [50, p. 593, 610].
147.
Evans v. Gore, 253 U.S. 245 (1920).
148.
Id. at 247.
149.
Id. at 264–267.
150.
To this extent, the observations of Prof. Irving R. Kaufman are extremely important. Prof. Kaufman, speaking in the context judicial independence in the United States very aptly observed,

The essence of judicial independence, therefore, is the preservation of a separate institution of government that can adjudicate cases or controversies with impartiality. This principle is embodied in the doctrine of separation of powers, which elevates the judiciary to the status of a co-equal branch. Cases defining the separation of powers suggest that article III’s protection to judicial independence extends beyond the specific prohibitions of the salary and tenure provisions to embrace all significant intrusions upon the exercise of judicial power.

See Kaufman [55, p. 671, 688]. See also Entin [51, p. 25].
151.
See generally Reichman [59].
152.
Ananian-Welsh and Williams [50, pp. 593, 611–13].
153.
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
154.
S.R. Bommai v. Union of India, (1994) 3 SCC 1; Nicholas Aroney & Khagesh Gautam, Federalism—A Selected Comparison, in India and Australia—A Comparative Overview of the Law and Legal Practice (Shaun Star ed., 2015).
155.
See generally All India Judges Association v. Union of India, (1993) 4 SCC 288.
156.
See India Const. art. 125 § 1 stating that the judges of the Supreme Court may be paid such salaries as may be determined by the Parliament by law, and until such provision is made, such salaries as are specified by the Second Schedule. See also, Jain [30].

By the way of the 54th Amendment, the parliament has been given the power to determine the salary payable to a Supreme Court Judge. It should also be noted that the parliament can decide from time to time the questions of privileges, allowances and pensions etc. for these judges. None of these can be varied to the disadvantage of the judge. All these matters are now regulated by the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958. This act was recently amended by the High Court and Supreme Court Judges (Salaries and Conditions of Services) Amendment Act, 2009.
157.
Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193.
158.
Law Commission of India, Report no. 14, Reform of Judicial Administration 163 (1958).
159.
All India Judges Association v. Union of India, (1993) 4 SCC 288, 296.
160.
Id. at 295–96, 297. See also, Glidden Co. v. Zdanok, 307 U.S. 530 (1962), holding that extra-judicial revisory authority is incompatible with the limitations placed upon drawn from article III of the US Constitution; and Chandler v. Judicial Council, 398 U.S. 74 (1970), holding that the power to direct trial judges in the execution of their decision-making duties is a judicial power entrusted only to a judicial body; Kaufman [55, p. 671, 693].
161.
All India Judges Association v. Union of India, (1993) 4 SCC 288, 297.
162.
Id. at 295–96.
163.
Kaufman [55, p. 671, 688].
164.
Judicial independence is now universally accepted as a key feature of modern constitutionalism. See, e.g., Rankin [60], noting that, “With its roots in the doctrine of the separation of powers, the need for an independent judiciary is increasingly considered a sine qua non of democratic constitutionalism.” See also Vyas [61].
165.
The Queen v. Marc Beauregard, [1986] 2 S.C.R. 56, 77 (Canada).
166.
See Dr. D. C. Wadhwa v. State of Bihar (1987) 1 SCC 378, 393 (Bhagwati, C.J) (the Court emphasizing that it would amount to a colorable exercise of power on the part of the executive to re-promulgate an ordinance, the provisions of which are substantially the same as the lapsed one. In other words, the constitutional authority something cannot do indirectly, when it was not permitted to do it directly), and more recently Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1.
167.
In the US context, it has been so argued. See Entin and Jensen [48, p. 965, 967], Entin [51, p. 25, 34].
168.
Under the Indian Constitution, the Governor of a State, if he feels that the urgency of the circumstances so require, has the power to promulgate ordinances during the time the Parliament is not in session. These ordinances are temporary in nature but have the force and effect of a legislation. The Supreme Court has declared unconstitutional the practice of re-promulgation of ordinances on the ground that such re-promulgation amounts to colorable exercise of executive power. See Dr. D.C. Wadhwa v. State of Bihar (1987) 1 SCC 378. Even though in the US context the practical/political possibility of a straight-forward attack of judicial independence by means of a colorable legislation intended to reduce judicial salaries to influence judicial behavior is conceded to be negligible, the possibility is not entirely denied and it has been said that such a measure will be unconstitutional. See Entin and Jensen [48, p. 965, 967], arguing that,

And a facially neutral statute motivated by a congressional desire to influence the judicial (if that bad motive could be demonstrated) would probably fail constitutional requirements as well …it is almost impossible to imagine Congress’s mounting a straightforward economic attack on the judiciary. With or without a Compensation Clause, a tax clearly directed at the judiciary is just not going to happen – or so one hopes.
169.
See Jennings [62]. Speaking in the context of exercise of governmental powers in a non-arbitrary manner, Ivor Jennings, stresses the point that it is not enough to hope that the power that is granted will be exercised in an honest and non-arbitrary manner. A grant of power must come with those necessary restrictions that are required in order to check the abuse of power. This, he argues, is the fundamental requirement in a system that is based on the idea of “rule of law.” Commonwealth v. Stilp, 905 A.2d 918 (Pa. 2006) is a good example of such powers being abused for political reasons in the face of clear constitutional prohibitions. See Nomi Claire Lazar, States of Emergency in Liberal Democracies 3 (2009) (arguing that “in a real crisis, emergency powers do not violate rights and the rule of law because these rules are simply not in effect at such exceptional times.”), Entin [51, pp. 25, 29–30]. Furthermore, the powers might be abused without it even being realized that they are being abused. In an emergency situation,

…[I]f a state agency [is] created in order to promote a certain important public interest, it is likely to overvalue the importance of protecting this public interest and undervalue the harm to individual liberties which may occur in the course of achieving this end. …Judicial review [would be] therefore crucial to balance this tendency and protect the liberty of the individual.

See also, Reichman [59, pp. 63, 64–65].
170.
Singh [56].
171.
See, e.g., Elkins et al. [63], Kamath [64] (Kamath notes supersession started after the Supreme Court delivered its opinion in the landmark case of Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 and by a narrow majority ruled that any amendment to the Constitution that infringes the basic structure of the Constitution is void. After this opinion was delivered, the unwritten principle that the senior-most judge of the Supreme Court shall be appointed as the Chief Justice was broken, and Justice A. N. Ray was appointed as the Chief Justice. Kamath notes that this action of the government evoked “sharp reactions” from the Bar and that there was “a near unanimous vote condemning the government’s actions.”), Khanna [65] (Justice Khanna in his memoirs discusses the supersession of three judges after the decision in Kesavananda Bharati case and later his talks about his own supersession that came after his world famous dissent in A.D.M. Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207, 2 SCC 521 which led him to resign from the Supreme Court.).
172.
A similar note of warning has been struck in the United States as well. Prof. Kaufman argued for insulating the judiciary from the other two branches in order to ensure its independence as, “…the political departments may attempt to enlist the judiciary in a campaign to subvert the Constitution ….” See Kaufman [55, p. 671, 693].
173.
The case arose in rather unusual circumstances where certain Bar Councils had passed resolutions against the sitting Chief Justice of the Bombay High Court. The petitioner, who was a lawyer, approached the Supreme Court seeking an appropriate writ to permanently restrain these Bar Councils from, “…coercing Justice A. M. Bhattacharjee [the] Chief Justice of Bombay High Court, to resign from the office as Judge.” The petitioner argued that these actions by these Bar councils, i.e., “removal by forced resignation,” was unknown to law, and unconstitutional as it seriously jeopardized judicial independence. The then Attorney General supporting the petitioner’s contentions argued that, “…any resolution passed by any Bar Association tantamounts to scandalising the court entailing contempt of the court. [The bar association] cannot coerce the judge to resign.” See C. Ravichandran Iyer v. Justice A. M. Bhattacharjee, (1995) 5 SCC 457, 464–467, 468.
174.
C. Ravichandran Iyer v. Justice A. M. Bhattacharjee, (1995) 5 SCC 457, 469 (Emphasis added).
175.
Id. at 469–471.
176.
Pareena Swarup v. Union of India, (2008) 14 SCC 107, 111.
177.
See Michael Nash, The Removal of Judges under the Act of Settlement (1701), Address at 18th British Legal History Conference: Judges and Judging Oxford (2–5 July 2007), Epstein [66], Kirby [67].
178.
The Federalist No. 79, at 531 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
179.
Evans v. Gore, 253 U.S. 245, 253–54 (1920), Justice Van Devanter (for the Court) holding that, “The original intent behind the Compensation Clause was also to, “…protect federal judges from external pressures that might keep the judges from acting impartially.” See also United States v. Will, 449 U.S. 200, 217–18 (1980), (Berger, C.J., for the Court) noting that,

The compensation clause has its roots in the long standing Anglo-American tradition of an independent judiciary. A Judiciary free from control by the executive and the legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government. Our constitution promotes that independence specifically by providing [for the Compensation Clause].

On a similar vein, see United States v. Hatter, 449 U.S. 229 (1980), Justice Berger (for the Court), noting that,

We also agree with Evans insofar as it holds that the Compensation Clause offers protections that extend beyond a legislative effort directly to diminish of judge’s pay, say, by ordering a lower salary…otherwise a legislature could circumvent even the most basic compensation close protection by enacting a discriminatory tax law, for example, that precisely but indirectly achieved the forbidden effect. (Internal Citations Omitted).

On this basic purpose there was never any disagreement among the founding fathers of the US Constitution. See Entin and Jensen [48, pp. 965, 969–70, 974], Entin [51, p. 25, 31], noting that, “[Compensation Clause] cases establish a baseline principle: constitutional prohibitions against diminishing judicial compensation mean that the other branches may not reduce the salaries paid to judges once those salaries have vested.”
180.
The most famous (or rather infamous) case study in the abuse of constitutional powers remains that of Adolf Hitler who abused the powers under article 48 of the Weimar Constitution in order to establish and then maintain his dictatorial regime in Nazi Germany. See, e.g., Scheppele [68]. In USA, President Truman during the Korean War in 1950 claimed emergency powers that did not find favor with the US Supreme Court that declared the same as unconstitutional in the famous Steel Seizure Case. See Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579 (1952). President Lincoln’s suspension of habeas corpus during the Civil War also had at its foundation a claim to emergency powers. Lincoln’s famous rhetorical question in today’s date is capable of being used as the ultimate justification for the invocation of emergency powers. He asked, “[A]re all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?” See Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 4 The Collected Works of Abraham Lincoln 421, 429–30 (Roy P. Basler ed., 1953). The abuse of emergency powers by successive military regimes under the Pakistani constitution has been well documented. See, e.g., Akhtar [69]. And lastly we may note the proclamation of emergency by Prime Minister Indira Gandhi in India during the early 1970s. Even though the Supreme Court of India never had a chance to judicially review the constitutionality of proclamations of emergency by Indira Gandhi, it was, and is widely regarded as an abuse and colorable exercise of constitutional powers. See Malhotra [70]. In a recent speech given in the Parliament, former Finance Minister of India, the late, Padma Vibhushan Shri. Arun Jaitley equated the proclamation of emergency by Prime Minister Indira Gandhi with the proclamation of emergency by Adolf Hitler. Manoj [71].
181.
See Kaufman [55, p. 671, 685]. Prof. Kaufman discusses a rather important incident where:

…[T]he Rhode Island General Assembly summoned the Court to explain the grounds upon which it had adjudged a legislative act unconstitutional, and therefore void. When three of the court’s five judges protested that they were not obliged to explain the basis for their decisions to the legislature, a resolution was introduced to remove them from office. Dismissal of judges was averted only after the Assembly was persuaded that it could not remove them except upon trial for criminal misconduct. (Internal Citations Omitted).

Such an exercise of constitutional powers quite clearly falls into the colorable category. Judicial review is one of the most effective remedies against such a potential misuse of constitutional powers. The point has been stressed by the Supreme Court of India. See L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, 301, (Ahmadi, C.J., for the Court):

The Judges of superior courts have been entrusted with the task of upholding the constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the constitution is maintained and that the legislature and executive do not, in the discharge of their functions transgress constitutional limitations. (Emphasis Supplied).

In a 2006 case, Commonwealth v. Stilp, 905 A.2d 918 (Pa. 2006), arising from art. V, § 16(a) of the Pennsylvania Constitution (that provides protections similar to the Compensation Clause and the Salary Clause), the Pennsylvania Supreme Court, “…rebuffed an effort to roll back a pay raise four months after it had gone into effect.” The Pennsylvania Constitution’s Compensation Clause is the closest to the Indian Economic Emergency Clause in the sense that they both provide for reduction of judicial salaries during an economic crisis. The Court in Stilp noted that the provision providing for reduction of judicial salaries applies only during a state-wide economic crisis and not as a reaction to a political backlash. Anything else would be an open invitation to attacks on judicial independence. Commonwealth v. Stilp, 905 A.2d 918, 944–48 (Pa. 2006). See also Entin [51, p. 25, 29–30].
182.
See Elkins et al. [63].
183.
See Beloff [23, pp. 1, 25–26], Note, Legislative Reduction of Judicial Compensation during the Depression, 43 Yale L. J. 1175, 1176–77 (1934), Anderson and Helland [72].
184.
See Topf [73] (the author notes Justice Joseph Story’s efforts to stave of attack from democratic extremes, which sought to amend the Massachusetts State constitution to enable a reduction of the salary of the judges of the Massachusetts courts). See also Kelly [54].
185.
See In Re: Provincial Court Judges case, [1997] 3 S.C.R 3, 128; Note, Legislative Reduction of Judicial Compensation during the Depression, 43 Yale L. J. 1175, 1176–77 (1934), Anderson and Helland [72], Kelly [54].
186.
See Anderson and Helland [72, pp. 1277, 1303–04].
187.
See Seervai [74]; id at 2708–11 (noting that an abuse of power to transfer a judge would impair judicial independence); id at 2721 (asserting that Justice Vohra, who was an additional judge, was not given a permanent tenure, on account of a perverse judgement against the Prime Minister’s son). See also Austin [34] (noting the repeated attempts made by the Indira Gandhi government to attack the independence of the judiciary in the 1970s), Sengupta [75]. For an account of executive’s abuse of power to make the judiciary compliant in India, see generally Robinson [76], Rajagopalan [77], Ramnath [78]. For a comparison with the situation in the United States, see Fisher [79] (noting that the aftermath of 9/11 produced a complaint judiciary, and culminated in the abuse of presidential powers), Pfander [80].
188.
See, e.g., Greene [12, p. 594, 620] (noting that deference to the executive during an economic crisis should be treated skeptically), Jethmalani [81] (noting that during an emergency, the role of judicial review is limited only to the scope of enforcement of fundamental rights), Vermule [43, pp. 163, 200–01]. See also, Bickel [82].
189.
See Note, Legislative Reduction of Judicial Compensation during the Depression, 43 Yale L. J. 1175, 1176–77 (1934) (noting the legislative reduction of judicial salaries in Oklahoma).
190.
U.S. v. Will, 535 U.S. 911 (2002) (Breyer, J. dissenting), Note, Legislative Reduction of Judicial Compensation during the Depression, 43 Yale L. J. 1175, 1176–77 (1934).
191.
See Gautam [83], Abeyratne [84], Singh [56]. See also Jain [30].
192.
See, e.g., Gautam [85].
193.
Madras Bar Association v. Union of India, (2010) 11 SCC 1.
194.
Madras Bar Association v. Union of India, (2014) 18 SCC 1.
195.
Madras Bar Association v. Union of India, (2015) 8 SCC 583.
196.
See Datar [86], Ramesh [87], Padmanabhan [88], Gautam [85].
197.
Madras Bar Association v. Union of India, (2010) 11 SCC 1, 18.
198.
Id. at 19, 54.
199.
Id. at 26.
200.
Id. at 35. Justice Raveendran, speaking for the Court, observed that:

Impartiality, independence, fairness and reasonableness in decision making are the hallmarks of judiciary. If “Impartiality” is the soul of the judiciary, “Independence” is the lifeblood of the judiciary. Without independence, impartiality cannot thrive. Independence is not the freedom for judges to do what they like. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where he can work with absolute commitment to the cause of justice and constitutional values.
201.
Id. at 36.
202.
Id. at 42.
203.
Id. at 43.
204.
Id. at 56.
205.
Id. at 56 (Emphasis added).
206.
India Const. art. 14.
207.
In the Canadian context, but well applicable to India, as any administrative lawyer in India would intuitively know, Prof. Colvin notes:

The independence of the Judiciary is further compromised if adjudicative work can be selectively advanced or impeded through decisions about the allocation of resources and support services, or if judges themselves perceive the quality of their occupational environment to be subject to the discretion of an Executive which is sometimes a party to litigation.

Colvin [49, p. 229, 234].
208.
See India Const. art. 32 (The right to approach the Supreme Court for enforcement of fundamental rights is a fundamental right); See also A.K. Gopalan v. State of Madras AIR 1950 SC 27 (emphasizing that the right to move the Supreme Court for the enforcement of fundamental rights through issuance of writ remedies); Romesh Thapar v. State of Madras AIR 1950 SC 124 (reiterating the court’s stance as a ‘protector and guarantor of fundamental rights); Prem Chand Garg v. Excise Commissioner AIR 1963 SC 996 (stating that the fundamental right to move the court for the enforcement of fundamental right is the “corner-stone of the democratic edifice” of the constitution).
209.
India Const. art. 50 (The State shall take steps to separate the judiciary from the executive in the public services of the State). The importance of judicial independence and need for separation of the judiciary from the control executive have reiterated time and time again, and has been followed in a catena of cases, most recently in Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1. See, e.g., Chandra Mohan v. State of U.P. AIR 1966 1 SC 1987, 1993 (Subba Rao, C.J.) (noting that there “shall be a separate judicial service free from executive control.”); Union of India v. Sankalchand Himatlal Sheth (1977) 4 SCC 193, 238 (Bhagwati, J.) (noting that the intent of the framers of the Indian Constitution in including Art. 50 was to immunize the judiciary from any form of executive control or interference.); S.P. Gupta V. Union of India (1987) Supp. SCC 87, 223 (Bhagwati, J.) (noting that the concept of “independence of the judiciary is a basic feature of the Constitution…which is essential for the establishment of real participatory democracy.); Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441, 680 (Verma, J.) (observing that the independence of the judiciary is a part of the basic structure of the Constitution and the “broad scheme of separation of powers” provides some “insight to the true meaning of the relevant provisions in the Constitution relating to the composition of the judiciary.”); Registrar (Admn.) High Court of Orissa v. Sisir Kanta Satapathy (1999) 7 SCC 725, 728 (Venkataswami, J.) (reiterating that independence of the judiciary is a basic feature of the Indian Constitution to note that executive control over the retirement of judges would be violative of the fabric of the Constitution).
210.
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
211.
See, e.g., Mate [89,90,91].
212.
India Const. art. 368.
213.
For a discussion of the line of Supreme Court decisions leading up to the finale in the Kesavananda Bharati, see Mate [89, pp. 175, 179–191], Mate [90, pp. 441, 464–489].
214.
See, e.g., Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, 430, Shelat, J. (Grover, J., concurring), holding that, “Our constitution is federal in character and not unitary. In a federal structure the existence of both the Union and States is indispensable and so is the power of judicial review.”; Robinson [92, p. 1, 31], noting that in Kesavananda Bharati the majority, “…described the basic structure as containing such principles as judicial review, democracy, federalism, secularism, and many of the fundamental rights.”
215.
Minerva Mills v. Union of India, (1980) 3 SCC 625.
216.
Id. at 694, Bhagwati, J. (partly dissenting) holding that,

It is true that by reason of [article 352(5)(a)], the satisfaction of the President is made final and conclusive, and cannot be assailed on any ground, but, as I shall presently point out, the power of judicial review is a part of the basic structure of the Constitution and hence this provision debarring judicial review would be open to attack on the ground that it is unconstitutional and void as damaging or destroying the basic structure. This attack against constitutionality can, however, be averted by reading the provision to mean – and that is how I think it must be read – that the immunity from challenge granted by it does not apply where the challenge is not that the satisfaction is improper or unjustified but that there is no satisfaction at all.

The majority opinion by Chandrachud, C.J., also held judicial review to be a part of basic structure but in the context of reviewing constitutional amendments. Chandrachud, C.J. (for himself, Gupta, Untwalia, and Kailasam, JJ.), declaring the newly inserted article 31-C unconstitutional on the ground that it takes away the power of judicial review. See id. at 660. See also Seervai [74], Jain [30], Datar [31], Mate [89, p. 175, 210] noting that, “The Court’s basic structure decisions in Kesavananda and later cases illustrate how courts may assert limits on governments to prevent them from amending the Constitution in a way that violates certain entrenched constitutional norms or principles.”; Mate [90, p. 441, 477], Mate [91, p. 361, 375].
217.
Minerva Mills v. Union of India, (1980) 3 SCC 625, 694.
218.
I. R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.
219.
See id. at 100, 105, Sabharwal, C.J. (for the Court), holding that, “After enunciation of the basic structure doctrine, full judicial review is an integral part of the constitutional scheme … Judicial review is an essential feature of the Constitution….”
220.
See, e.g., N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1, 50, (Sinha, J. for the Court) holding that, “Judicial review in our constitutional scheme itself is a part of its basic structure.”; Subhash Sharma v. Union of India, (1991) Supp. 1 SCC 574, 597, holding that, “Judicial review is a part of the basic constitutional structure and one of the basic features of the essential Indian constitutional policy.”; Government of India v. Alka Subhash Gadia, (1992) Supp. 1 SCC 496, 515, Sawant, J. (for the Court) holding that judicial review of legislation or of any order passed by the administrative authorities is a part of the basic structure of the Constitution. See also Robinson [92].
221.
See, e.g., Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1, 708, Justice Goel (for himself, Justice Khehar, Justice Lokur, and Justice Josepsh, concurring),

The judiciary has an apolitical commitment in its functioning. Once the independence of the judiciary is acknowledged as a basic feature of the Constitution, the question is whether the power of appointing Judges can be delinked from the concept of independence of the judiciary or is an integral part of it.

Answering this question Justice Goel, “… concluded that “primacy of the Judiciary” and the “limited role of the Executive” in judicial appointments was a part of the basic structure of the Indian Constitution.” (Internal Citations Omitted). See also Gautam [83, pp. 653, 661–69].
222.
Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1. Justice Lokur, relying primarily on historical materials, held that that the opinion of the Chief Justice of India [should] be given primacy in judicial appointments in order to maintain the independence of judiciary, located the importance to preserve independence of judiciary within the broad structure of judicial review which is a part of the basic structure. Justice Joseph concurred with Justice Lokur completely but relied on a structural analysis, rather than a historical one. Justice Khehar and Justice Goel, both using a textual-doctrinal method of analysis arrived at similar conclusions. See Gautam [83, pp. 653, 661–669].
223.
Conrad [93, 94], Roznai [95].
224.
Albert [96], noting that,

In countries far and near – from Argentina to Austria, Belize to Brazil, Greece to Hungary, India to Italy, Peru to Portugal, South Africa to Switzerland, Taiwan to Turkey – high courts have with accelerating frequency adopted the doctrine of unconstitutional constitutional amendment, authorizing themselves (sometimes in defiance of the constitutional text) to strike down an amendment for violating their reading of the constitution, whether or procedural or substantive grounds. (Internal Citations Omitted);

See also Landau [97], noting that,

A series of countries have developed the so-called “unconstitutional-constitutional amendment doctrine,” which holds that a constitutional amendment can itself be substantively unconstitutional under certain conditions. The doctrine has been espoused by courts such as the German, Indian, Turkish, and the Colombian Constitutional Courts.
225.
As noted by Yaniv Roznai in [95, p. 657, 659]. Other constitutional orders that provide for an unamendable core of their constitutions are the Mexican Constitution of 1824, the Venezuelan Constitution of 1830, the Peruvian Constitution of 1839, the Ecuadorian Constitution of 1843, the Honduran Constitution of 1848, the Dominican Republic’s Constitution of 1865, and the El Salvadorian Constitution of 1886. See id. at 667–68.
226.
Landau [97, pp. 189, 201–03].
227.
Id. at 203.
228.
Roznai [95, p. 657, 664]. After an exhaustive study, Roznai notes—

Constituent power is the extraordinary power to establish the constitutional order of a nation. It is the immediate expression of the nation and thus its representative. Constituted power is the power created by the constitution, an ordinary power that the nation grants through positive law. These two powers exist on different planes: constituted power exists only in the state, inseparable from a pre-established constitutional order, while constituent power is situated outside the state and exists without it. (Emphasis Added) (Internal Citations Omitted).

See generally, Roznai [98].
229.
Conrad [94, pp. 1, 13–15].
230.
But see Cassels [99] for a critical account of the Doctrine of Basic Structure; Coan [100] criticizing the Doctrine as lacking any basis in original understanding.
231.
Khanna [65]. Justice Khanna, who was the swing vote in Kesavananda Bharati, after his retirement wrote his memoirs in which he narrates the attempt to have the decision in Kesavananda Bharati reconsidered. At the height of Prime Minister Indira Gandhi’s emergency, Khanna narrates,

The main argument to oppose reconsideration was advanced by Nani Palkhiwala. …[T]he height of eloquence to which Palkhiwala rose on that day had seldom been equaled and never surpassed in this history of the Supreme Court. Palkhiwala was still on his feet when the court rose for the day. Next day when we assembled in the Chief Justice’s chamber he told us that he had decided to dissolve the bench and not to proceed with the matter. …So ended the attempt to reconsider the correctness of the Kesavananda decision.
232.
Issacharoff [101], noting that,

…[W]hat is distinct about a basic-structure approach to constitutional adjudication is that it protects the core features of contested democratic governance, even if it is not apparent from the outset of a democracy which provisions may prove to be central.
233.
Landau [97, p. 189, 233], noting that, “… it allows judges to defend the constitutional order without being constrained by the limits of constitutional text.”
234.
See S. P. Gupta v. Union of India, (1981) Supp. SCC 87, 225, where Justice Bhagwati in his lead opinion stressed that, “… the concept of independence of judiciary is not limited only to independence from executive pressure or influence but it is much wider concept which takes within its sweep independence from many other pressures and prejudices.”; Gautam [83, p. 653], Mate [102].
235.
Ely [103].
236.
See, e.g., Reichman [59], Note, The Pakistani Lawyers’ Movement and the popular currency of Judicial Power, 123 Harv. L. Rev. 1705 (2010), Qureshi [104].
237.
United States v. Will, 449 U.S. 200, 217–18 (1980), Chief Justice Berger (for the Court)

The compensation clause has its roots in the long standing Anglo-American tradition of an independent judiciary. A Judiciary free from control by the executive and the legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government. Our constitution promotes that independence specifically by providing [for the Compensation Clause].

See also Carlton, Jr. [105].
238.
See Kline [106] (citing a former president of the American Bar Association who asserted that “[w]hat marks our nation from so many unstable or authoritarian governments is, to a substantial measure, the independence of our judges as preservers of our constitutional rights.”), Keith [107, p. 195].
239.
See Lillich [108] (reporting on the Paris Minimum Standards of Human Rights Norms in a State of Emergency). See id. at section B, sub-clause 3, which reads as follows—

The guarantees of the independence of the judiciary and of the legal profession shall remain intact. In particular, the use of emergency powers to remove judges or to alter the structure of the judicial branch or otherwise to restrict the independence of the judiciary shall be prohibited by the constitution. (Emphasis Added)

See also, id. at sub-clause 5 of section B, which reads—

The judiciary shall have the power and jurisdiction to decide: firstly, whether or not an emergency legislation is in conformity with the constitution of the state; secondly, whether or not any particular exercise of emergency power is in conformity with the emergency legislation …A court of law shall have full powers to declare null and void any emergency measure (legislative or executive) or any act of application of any emergency measure which does not satisfy the aforesaid tests.

(Emphasis Added)

Lastly, see Keith [107].
240.
See, e.g., Providence Bank v. Alpheus Billings 29 U.S. 514, 563 (1830) (Marshall, C.J., writing for the Court) (“This vital power may be abused; but the constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the state governments.”); Raja Ram Pal v. Speaker, Lok Sabha, (2007) 3 SCC 184, 443–4, where C.K. Thakker, J., writing the majority judgement, placed reliance on Justice Marshall’s words to conclude that it was a well-established principle of Constitution Law, that possibility of abuse of power does not make provision ultra vires or bad law; Govt. of A.P. v. P. Laxmi Devi (2008) 4 SCC 720, wherein a two judge bench of the Supreme Court held that the mere likelihood of abuse of discretionary power would not render a statute unconstitutional.
241.
See, e.g., Dr. Khare v. State of Delhi, SCR 1950 SC 519, 524 (“Abuse of the power given by a law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension”); Raja Ram Pal v. Speaker, Lok Sabha, (2007) 3 SCC 184, 443 (“Again, it is well-established principle of law that the mere possibility or likelihood of abuse of power does not make the provision ultra vires or bad in law”).
242.
See, e.g., Associated Provincial Picture Houses v. Wednesbury Corporation [1947] 2 All ER 680 (CA).
243.
See, e.g., R.K. Garg v. Union of India (1981) 4 SCC 675, 691 (Bhagwati, J., writing for the majority)

Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There, may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid… There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity.
244.
Id. See also, Ex parte Milligan 71 US 2, 125 (1866), where Justice Davis, writing for the court, noted in his inimitable manner that:

Wicked then, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the, dangers to human liberty are frightful to contemplate.
245.
See Ex parte Milligan 71 US 2, 125 (1866); R v. Halliday [1917] AC 260, 271 (Lord Atkinson) However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement. It is not contended in this case that the personal liberty of the subject can be invaded arbitrarily at the mere whim of the Executive. A.D.M. Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207, 2 SCC 521, 722

It impossible that when past powers are vested in the executive, the exercise of which is immune from judicial scrutiny, they may sometimes be abused and innocent persons may be consigned to temporary detention. But merely because power may sometimes be abused, it is no ground for denying the existence of the power. All power is likely to be abused. That is inseparable from the nature of human institutions.
246.
See Elkins et al. [63, p. 155].
247.
Id. at 155–56.
248.
See, e.g., Schechter Poultry Corp. v. United States 295 U.S. 495, 528 (1935) wherein the US Supreme Court, relying on its decisions Ex parte Milligan 71 US 2 (1866), and Home Building & Loan Ass’n v. Blaisdell 290 U.S. 398 (1934), opined that “extraordinary conditions do not create or enlarge constitutional power.”
249.
Gautam [83].

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Supreme Court of India, New Delhi, India
Abhishek Singhvi
Jindal Global Law School, O. P. Jindal Global University, Sonipat, Haryana, India
Khagesh Gautam

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Singhvi, A., Gautam, K. (2020). Judicial Independence and Economic Emergency in India. In: The Law of Emergency Powers. Springer, Singapore. https://doi.org/10.1007/978-981-15-2997-9_4

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DOI: https://doi.org/10.1007/978-981-15-2997-9_4
Published: 31 October 2020
Publisher Name: Springer, Singapore
Print ISBN: 978-981-15-2996-2
Online ISBN: 978-981-15-2997-9
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