Supreme Court’s ‘basic structure’ verdict set bad precedent: Dhankhar

By, Jaipur/new Delhi
Jan 12, 2023 03:12 AM IST

Vice President Jagdeep Dhankhar is not the first VP to use the platform of the presiding officiers’ meeting to question the Supreme Court.

Vice President Jagdeep Dhankhar on Wednesday questioned the landmark Supreme Court judgment that evolved the doctrine of basic structure, asking if the judiciary can put fetters on the Parliament’s powers to amend the Constitution and frame laws in a democratic nation.

Vice President Jagdeep Dhankhar (right) with Lok Sabha Speaker Om Birla (centre) and Rajasthan chief minister Ashok Gehlot at the 83rd All India Presiding Officers’ Conference in Jaipur on Wednesday. (PTI)
Vice President Jagdeep Dhankhar (right) with Lok Sabha Speaker Om Birla (centre) and Rajasthan chief minister Ashok Gehlot at the 83rd All India Presiding Officers’ Conference in Jaipur on Wednesday. (PTI)

“In 1973, a very incorrect precedent was started in India. In the case of Kesavananda Bharati, Supreme Court gave the idea of basic structure, that Parliament can amend the Constitution but not its basic structure. With due respect to judiciary, I cannot subscribe to this. This must be deliberated. Can this be done? Can Parliament allow that its verdict will be subject to any other authority?... Otherwise, it will be difficult to say that we are a democratic nation,” remarked Dhankhar.

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Opening a new front in the ongoing tussle between the executive and the judiciary over the judges’ selection mechanism and the division of powers between the two wings, Dhankhar also expressed his indignation at the 2015 Supreme Court judgment quashing the National Judicial Appointments Commission (NJAC) Act, which had proposed a greater role for the government in the appointment of judges.

Dhankhar is not the first VP to use the platform of the presiding officiers’ meeting to question the Supreme Court. In 2020, then VP Venkaiah Naidu spoke against the the court’s overreach citing the ban on firecrackers and the NJAC decision. “Occasionally, concerns have been raised as to whether they (judiciary) were entering the domains of the legislative and the executive wings,” he had said.

Naidu had sought clear boundaries for the three wings of the state—legislature, judiciary and executive— and said, “There have been debates as to whether some issues should have been left to the other organs of the government.”

Dhankhar said that a judicial verdict cannot run down parliamentary will, adding “parliamentary sovereignty and autonomy cannot be permitted to be qualified or compromised as it is quintessential to the survival of democracy.” Addressing the 83rd All-India Presiding Officers Conference in Jaipur, the Vice President called for a debate if Parliament’s will can be subject to any other authority, including the judiciary.

In his opening address after assuming the office of Rajya Sabha chairperson on December 7, Dhankhar said the Supreme Court’s 2015 judgment striking down the National Judicial Appointments Commission (NJAC) Act was a “glaring instance” of “severe compromise” of parliamentary sovereignty and disregard of the “mandate of the people”.

Dhankhar’s comments on the system of selecting judges had closely followed the persistent criticism of the collegium system by Union law minister Kiren Rijiju, who at several occasions over the last few months called the mechanism “opaque”, “alien to the Constitution” and the only system in the world where judges appoint people who are known to them.

A day after Dhankhar’s December 7 statement, the Supreme Court, while hearing a case related to judicial appointments, asked attorney general R Venkataramani to “advise” government functionaries to “exercise control”, as it underscored that the Union government is bound to follow the collegium system “to a T” because that is the law of the land.

On Wednesday, Dhankhar said he was surprised by the Supreme Court’s suggestion to the AG for conveying the court’s displeasure. “Friends, I have declined to undertake the Attorney General on this point. I cannot be a party to emasculate the power of legislature...what is the situation today? One-upmanship, public posturing...public posturing from judicial platforms. This is not correct,” he said.

The 1973 judgment in the Kesavananda Bharati case is credited for laying down the basic structure doctrine. A 13-judge bench held by a 7-6 majority that Parliament can amend any provision of the Constitution, including fundamental rights, so long as the basic structure of the Constitution remains the same.

While the constitution bench identified some of the features, including supremacy of the Constitution, unity and sovereignty of India, secular character of the Constitution and separation of power as the basic structure of the Constitution, the court clarified the list is not exhaustive. Later, the top court added some more features such as rule of law, judicial review and free and fair elections to the list of basic structure.

The doctrine of basic structure has been construed as the idea to preserve the most fundamental ideals of the Constitution while acting as a check on the powers of the government to make laws that may distort or remove these basic principles.

According to Dhankhar, the judicial process commenced in the Keshavananda Bharati judgment led to parliamentary sovereignty getting compromised. “In a democratic society, basic of any basic structure is supremacy of people, sovereignty of the Parliament. The executive thrives on the sovereignty of the Parliament. The ultimate power is with the legislature. Legislature also decides who will be there in other institutions. One must not make incursion in the domain of others,” he commented.

Dhankhar said that just as the legislature did not have the power to write judicial orders, the executive and judiciary did not have the authority to legislate, adding no institution can wield power or authority to neutralise the mandate of the people. The Vice President said 16 State Legislatures ratified NJAC act—Rajasthan Assembly being the first one - but it was “undone” by the Judiciary.

“Such a scenario is perhaps unparalleled in the democratic history of the world. The executive is ordained to be in compliance of the constitutional prescription emanating from the Parliament. It was obligated to adhere to the NJAC. Judicial verdict cannot run it down,” said Dhankhar.

Lok Sabha Speaker Om Birla also spoke at the event, urging the judiciary “to confine to its limits prescribed in the constitution”. He said: “Judiciary is also expected to follow the principle of separation and balance of powers conferred by the Constitution among all institutions while exercising its constitutional mandate.” The Speaker added that executive, legislature and judiciary should “work in harmony, trust and balance, maintaining each other’s jurisdiction”.

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