VP Dhankhar, the Judiciary and the Clash of Legislative Will and Basic Structure of Constitution

The former Bengal governor had earned a reputation as a constitutional brawler who likes to 'play politics' on behalf of the ruling party at the Centre. It is entirely welcome, therefore, that as chairman of the Rajya Sabha, he says he wants to insulate his new constitutional office from 'partisan stances.'

Before his elevation to the high constitutional office of the vice-president of India, the honourable Jagdeep Dhankhar had held another constitutional office.

He made, many thought, a querulous governor in West Bengal – kibitzing the Mamta Banerjee government, converting the Raj Bhavan into a permanent site of protest, heckling and expressing dissent against an elected government with a very, very clear cut electoral mandate and absolute majority in the legislative assembly.

He had earned for himself a reputation as a constitutional brawler, exploiting the vague corners in the constitution  to “play politics” on behalf of the ruling party at the Centre. 

It is therefore entirely welcome that as chairman of the Rajya Sabha, the honourable Dhankhar says he wants to insulate his new high constitutional office from “partisan stances.”

In an extraordinary move, he made a statement in the Rajya Sabha on December 22, choosing to take exception to an observation by Sonia Gandhi, as the chairperson of the Congress Parliamentary Party, in her address to Congress MPs on December 21.

Gandhi had noted: “A troubling new development is the calculated attempt underway to delegitimise the judiciary. Ministers – even a high constitutional authority – have been enlisted to making speeches attacking the judiciary on various grounds.” 

Curiously enough, Gandhi had neither mentioned the chairman of the Rajya Sabha either by name or office, yet Dhankhar saheb concluded that her indictment was directed at him. And, he thought he must salvage the dignity of his new office and his own reputation as he takes guard as the presiding officer.     

It is an honourable impulse, which must be applauded. Dhankhar saheb’s reaction suggests that perhaps his thought process has not been totally misshapen from the all bruising fights he had had with West Bengal chief minister Mamata Banerjee. He is perhaps seeking to assure all sides of the house that he would strive to be fair, and not partisan, in performing his duties as the chairman of the Rajya Sabha. If this be so, this should be a relief in these increasingly partisan times.  

Equally to be applauded is the Congress party’s dignified response, made by the Rajya Sabha member, Jairam Ramesh. In a letter dated December 23, Ramesh, a senior Rajya Sabha member and former cabinet minister, deemed it necessary to nuance Dhankhar’s argument that the judiciary could not possibly override what he called “parliamentary sovereignty.” 

Rajya Sabha chairman Jagdeep Dhankhar in the House on the first day of the Winter Session of Parliament, in New Delhi, December 7, 2022. Photo: Sansad TV Screengrab via PTI

As Ramesh saw it, “Parliamentary sovereignty is best ensured by allowing Parliament to function, by ensuring that the opposition is given space and that the prime minister respects and responds to questions asked of his government.” Like all non-BJP parties, the Congress too has a reason to feel that Dhankhar’s predecessor had unfairly and unreasonably departed from established parliamentary practices and protocol to help the Narendra Modi government railroad its legislative agenda.

Parliamentary sovereignty cannot get reduced to a legislative tyranny by the government of the day. And, there can be no doubt that, as the honourable Dhankhar put it, the “power of the Parliament of the day to act in exercise of its constituent power” to amend any provision of “this constitution” is unqualified and supreme, not amenable to executive attention or judicial intervention.”

And, equally there can be no doubt that the constitution empowers the Supreme Court to sit in judgment over all legislative and executive acts. Years ago, the judiciary in its wisdom fire-walled the constitution against the excesses of demagogues and wayward politicians. The solution was the enunciation of the ‘basic structure’ doctrine. This gave enough room for legislators to play around, but also ensured there could be no tinkering with the basic structure.

Also read: As Courts Rule on Constitution’s Basic Structure, Landmark Doctrine Turns Out to Be Elastic

As Congress spokesman Ramesh points out to Dhankhar, “The ‘basic structure’ doctrine has stood the test of time for over 45 years and is considered a proud Indian judicial invention which is the envy of the world.”

Any exaggerated emphasis on the centrality of “parliamentary sovereignty” would mean the downgrading of the two other branches, the executive and the judiciary. Such a maximalist view of the parliament’s powers can come only at the cost of the inherent constitutional equilibrium. Demagogues are free to invoke the mandate and endorsement of the “masses” but they are not at liberty to monkey around with the supremacy of the constitution. 

The Modi government, like all its predecessors, chafes at the idea of having to see its actions undergo judicial scrutiny. The Modi government is entitled to believe in its uniqueness and its leadership’s unqualified dedication to the nation and its welfare, but it is itself a creature of the constitution and therefore is very much subject to the supremacy of the constitution.

Yet no one is surprised that the Modi regime has launched an offensive against the judiciary, wanting the Supreme Court to become “congenial.” 

Many had feared that that new xhairman of the Rajya Sabha was lending his voice to this push. It is therefore a matter of satisfaction that the honourable Dhankar saheb has sought to clarify that he intends to bat for constitutional wholesomeness. It would be rewarding for him to lead civilised conversations among parliamentarians. Tin-pot demagogues need not define how discussions are conducted. 

Civilised societies and political communities are defined by their ability and dedication to define the rules of the game and the ideals of the nation in a constitutional document. A constitution is a covenant assured to the people – “We, the People” – that the polity will endeavour to seek a shared destiny for one and all in accordance with certain values and virtues. This compact is not to be fiddled with at the whims and fancies of a ruling clique.