New Delhi: Vice president Jagdeep Dhankhar launched a fresh attack on the Supreme Court for striking down the law that approved an alternate system to appoint judges, adding that he does not agree with the restriction imposed by the top court that parliament cannot amend the ‘basic structure’ of the constitution.
A day later, Congress MP and former finance minister P. Chidambaram tweeted that Dhankhar is “wrong” and that it is the constitution, not the parliament which is supreme.
“The “basic structure” doctrine was evolved in order to prevent a majoritarian-driven assault on the foundational principles of the Constitution,” he tweeted.
Suppose Parliament, by a majority, voted to convert the parliamentary system into a Presidential system. Or repeal the State List in Schedule VII and take away the exclusive legislative powers of the States. Would such amendments be valid?
— P. Chidambaram (@PChidambaram_IN) January 12, 2023
“Suppose Parliament, by a majority, voted to convert the parliamentary system into a Presidential system. Or repeal the State List in Schedule VII and take away the exclusive legislative powers of the States. Would such amendments be valid?” Chidambaram asked.
“After the NJAC Act was struck down, nothing prevented the Government from introducing a new Bill. The striking down of one Act does not mean that the “basic structure” doctrine is wrong,” he added.
“In fact, the Hon’ble Chairman’s views should warn every Constitution-loving citizen to be alert to the dangers ahead,” Chidambaram wrote.
Speaking at the 83rd All India Presiding Officers (Assembly Speakers) Conference in Jaipur on Wednesday, Dhankhar slammed “public posturing from judicial platforms”. One of the themes for the conference was ‘The need to maintain a harmonious relationship between the Legislature and the Judiciary in accordance with the spirit of the Constitution’.
This is the third time after taking office that the vice president has criticised the Supreme Court for striking down the National Judicial Appointments Commission (NJAC) Act. The law – approved unanimously by both houses of parliament – would have replaced the existing collegium system to appoint judges.
After Dhankhar criticised the top court in his maiden address to the Rajya Sabha, a bench of the court had asked attorney general R. Venkataramani to advise top government figures and constitutional authorities to exercise restraint.
On Wednesday, the vice president said he was “shocked” by this suggestion. He said:
“In an assembly, you cannot write a court judgment. Similarly, the court cannot legislate. It is as clear as anything else. Aaj ka haalat kya hain?(What is the situation today?) One-upmanship. Public posturing. Public posturing from judicial platforms. Ye theek nahin hain(This is not right). These institutions must know how to conduct themselves. There can be interaction, there can be deliberations. But using these platforms for public consumption… mujhe bada aascharya hua, shresht nyayalay ke nyayadipad ne attorney general ko kaha ki high constitutional authority ko message do (I was very surprised when the judges of the Supreme Court asked the attorney general to send a message to high constitutional authorities).”
“Friends, I have declined to undertake the attorney general on this point. I cannot be a party to emasculate the power of legislature. I have been solider of judiciary. I have highest respect for judiciary. I have been part of it by training, by profession. And I do respect it by the position I hold. Through this august platform, I will appeal to them, we all have to confine to our deep sense of propriety, self-respect and commitment to the constitution. Dialogue through public platforms is not a wholesome mechanism of communication.”
On December 8, when judges of the top court had disapproved of criticism of the collegium system, senior advocate Vikas Singh – the president of the Supreme Court Bar Association – referred to statements made by Union law minister Kiren Rijiju and Dhankhar. “People in constitutional posts are saying [that the] Supreme Court does not have judicial review. That is basic structure. It is a little upsetting,” he had said.
In response, one of the judges on the bench, Justice S.K. Kaul, said: “Tomorrow people will say basic structure is also not a part of constitution!”
The judge’s prediction came true, as Dhankhar on Wednesday said that in a democratic society, the ‘basic’ of any ‘basic structure‘ can only be the supremacy of the people and the sovereignty of parliament.
“Executive thrives on sovereignty of the Parliament. Legislatures and parliament decide who will be chief minister, who will be prime minister. The ultimate power is with the legislature. Legislature also decides who will be there in other institutions. In such a situation, all constitutional institutions – the legislature, the executive, the parliament – are required to be within their limits. One must not make incursion in the domain of other (sic).”
Dhankhar asked in Hindi if parliament’s power to amend the constitution is dependent on any other institution. “Is there a new theatre in the Indian constitution, which says the laws passed by parliament will only come into force only after our stamp is on it?”
The vice president slammed the court’s 1973 decision in the Kesavananda Bharati case that gave rise to the basic structure doctrine.
“With due respect to the judiciary, I cannot subscribe to this [that parliament cannot amend the basic structure]. This house must deliberate. Can this be done? Can Parliament be allowed… that its verdict will be subject to any other authority? When I assumed the office of chairman of the Rajya Sabha, in my maiden address, I said this. I am not in doubt about it. Yeh nahi ho sakta ha (this cannot happen),” he said. If such limits are imposed, the very nature of democracy is in danger, he added.
He then criticised the Supreme Court for declaring the NJAC Act as unconstitutional, saying that the law was “not a challenge to the judiciary” but was driven by a belief in the constitution and democracy.
“Duniya me aise kahi nahi hua hain (This never happened anywhere else in the world). How can Parliament’s sovereignty be compromised?” he asked.
Dhankhar’s comments on the judiciary come after the government has been putting sustained pressure on the collegium system – accusing it of being inefficient, opaque and ‘alien’. The top court has struck back at these suggestions, saying that it is the law of the land and must be followed.
Note: This article has been updated to include P. Chidambaram’s tweets.