8 min readJan 16, 2023 01:48 PM IST
First published on: Jan 13, 2023 at 12:35 PM IST
When the speaker of the Lok Sabha and the Chairman of the Rajya Sabha initiate a debate at the all-India presiding officers conference on the role of the judiciary, the country must wake up. Vice-President Jagdeep Dhankhar characterised the Supreme Court judgment on the National Judicial Appointments Commission (NJAC) Act as “a glaring instance of severe compromise of parliamentary sovereignty and disregard of the mandate of the people”. The attack on the judiciary is now out in the open. He went on to say that “we cannot have an ostrich-like stance”. Speaker Om Birla added to this by demanding that, “the judiciary was expected to follow the separation of power mandated by the Constitution”. Both the distinguished leaders desired that the judiciary work in harmony with the executive and legislature.
May I remind the Vice President and Speaker, with utmost respect, that “the diffusion of constitutional morality, not merely among the majority but throughout the entire community, is the indispensable condition of government at once free and peaceable”.
Be you so high, the Constitution is above you – that is the mantra for democracy. That India is and will continue to be. The Constitution is a fundamental document, and is suprema lex. It not only creates the three organs of the state — executive, legislature, and judiciary — but also defines their powers and limitations. Rajendra Prasad reminded the Constituent Assembly of this at its outset on December 11, 1946: “We have been fighting for the freedom of our country for a long time. This Constituent Assembly has been brought into existence by three forces. First, the sacrifice of our patriots… Second, the history of the British nation; their selfishness, and their generosity. Third, the present world conditions, the serious situation and the forces that are raging in the world. All these combined together to bring into being our Constituent Assembly.”
The Constitution confers fundamental and other rights on the people of India. But, as B R Ambedkar said, “All of us are aware of the fact that rights are nothing unless remedies are provided whereby people can seek to obtain redress when rights are invaded”. Thus was born Article 32 of the Constitution, which confers the right to move the Supreme Court for their enforcement. Article 13(2) is a unique provision and provides that “the state shall not make any law that takes away or abridges the rights, conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void”.
This Article was debated as Article 8 in the Constituent Assembly on November 25, 26 and 29, 1948. Parliament in 1971, (while Indira Gandhi was Prime Minister and Congress had the majority), by Constitution (24th Amendment) Act, 1971, inserted sub-article (4) in Article 13 to dilute the above provision: “Nothing in this Article shall apply to any amendment of this constitution made under Article 368.”
Clearly, this amendment was an afterthought and was a majoritarian act. The Supreme Court, therefore, in the celebrated case of Kesavananda Bharati v. State of Kerala, while affirming the power to amend the Constitution, rightly held that Parliament cannot change the basic features of the Constitution under Article 368. Amongst the basic features are fundamental rights, rule of law, judicial review, separation of powers, and an independent judiciary. The Supreme Court declared the NJAC Act and the consequential amendment to the Constitution as unconstitutional. The Supreme Court did what it is ordained to do under the Constitution. Nothing more and nothing less.
The framers of the Constitution were clear in Articles 141 and 144. Article 141 states that the law declared by the Supreme Court is binding on all courts within the territory of India. Article 144 states that all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.
Clearly, the judiciary and in particular the Supreme Court are under duty to protect the Constitution and its basic features. Parliament is injuncted by virtue of Article 13(2) from framing any law that in any manner takes away or affects the fundamental rights of citizens. Such laws are declared by the constitution framers “to be void”. The Supreme Court being the ultimate interpreter of the Constitution must necessarily make a declaration on such laws.
The Constituent Assembly passionately debated the independence of the judiciary and provided for the judiciary to be independent of the executive and legislature. K M Munshi said on May 23, 1949: “Largely, however, it will depend on how the judiciary works, what the spirit of the legislature is and in what spirit the executive works. That is a matter which principally lies with the public opinion in the country as well as with those working the Constitution.” He reaffirmed that the independence of the judiciary was sufficiently provided under the Constitution. Ambedkar added: “And I have said that the relation between the executive and the judiciary is so separate and distinct that the executive has hardly any chance of influencing the judgment of the judiciary.”
We must appreciate that the Constituent Assembly comprised some of the greatest Indians and it worked over two years, 11 months and 17 days from December 9, 1946, to November 25, 1949. The final draft had 395 Articles and VIII Schedules and the number of amendments tabled was 7,635 out of which 2,473 were moved within the House. In the end, Ambedkar refused to enter into the merits of the Constitution saying: “Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave?” He ended the debate on November 25, 1949, with those words, further saying that “there is great danger of things going wrong. Times are fast changing. People including our own are being moved by new ideologies. They are getting tired of the people. They are prepared to have Governments for the people and are indifferent whether it is Government of the people and by the people.”
Is the prophecy of the great man turning out to be true? Have things gone so wrong? Is the current moment a precursor to the debate on the presidential form of government?
The world today is caught between autocracy and democracy. Let India realise the danger of this discourse. Let the legal profession awaken to defend our beloved Constitution and the Judiciary.
The writer is a senior advocate, Supreme Court of India and former president, Supreme Court Bar Association of India
Vice-President Jagdeep Dhankhar had recently characterised the Supreme Court judgment on the National Judicial Appointments Commission Act as “a glaring instance of severe compromise of parliamentary sovereignty and disregard of the mandate of the people”. (Photo: PTI) 
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