KK Venugopal: ‘Restraint needed but Supreme Court left Parliament groping in the dark’

Venugopal, 91, who argued in favour of the NJAC, said that the real problem is that “if an amendment affects the judiciary, then the decision will be very very subjective.” He cited the example of how the judiciary “step-by-step took over the power of appointment of the higher judiciary.”

In 2015, a five-judge Constitution bench of the Supreme Court struck down the NJAC amendment on the grounds that it alters the independence of the judiciary which is the basic structure of the Constitution. The Collegium form of appointments was devised by the Supreme Court with a view that it would protect the independence of judiciary.

“Therefore, (after the NJAC ruling) I would pity Parliament. Where Parliament would not know in advance if they are thinking of a social reform whether that will stand the basic structure test or not. Therefore, unless you have a procedure for advance rulings as you have (on) taxation laws, the result (is) that the Parliament will be groping in the dark and, therefore, they will take a risk and say that look we want this law, it is for the benefit of the people but…if the court wants to interfere then there is nothing we can do about it.”

Venugopal’s father M K Nambiar first argued the basic structure theory before the Supreme Court in the 1967 Golak Nath case. While the argument was not accepted at that time, Justice H R Khanna applied the doctrine in the 1975 Kesavananda Bharati ruling.

In the five decades that the basic structure doctrine has been applied, the Supreme Court has fully struck down only one amendment, the NJAC. A critic of the Collegium system of appointment of judges, Venugopal said that the Supreme Court has strayed from the Constitution on appointment of judges.

“In fact, in the Constituent Assembly debates, the suggestion was made to say (the government must) not consult, but to (require) concurrence of the Chief Justice of India but Ambedkar shot it down. Ambedkar said he’s only one single person with all the weaknesses and strengths of a human being. Today, the judiciary proposes the name and the government will have to make the appointment,” he said.

Venugopal has suggested that the panel could be changed, ensuring the government did not have a veto but an equal say.

“As a result of this, I am quite concerned about the aspects which can be held to be part of the basic structure. Another very clear aspect which one can have no doubt about federal structure and then independence of the judiciary and so on. But you go on adding to it…(with) no idea as to what its aspects would be,” he said.

Despite his critique of the basic structure doctrine used to strike down NJAC, Venugopal said it was “necessary that some sort of restraint had to be placed on Parliament.”

“I have no doubt whatsoever that in the background of Indian polity with various political parties, exercising vast powers. Whenever they get into government, it is possible that they may misuse the powers by altering the Constitution in a manner which would not all comply with the democratic principles. Now, in that case what happens? Would it be a dictatorship like Germany during Hitler’s regime? Suppose a very powerful prime minister wants to dynastic rule so that the republic would be converted into a dynasty? Therefore, it became necessary that some sort of restraint had to be placed in Parliament, and therefore came the evolution of the basic structure doctrine.”