© The Indian Express Pvt Ltd
Tags:
Journalism of Courage
His criticism of the Supreme Court for striking down the National Judicial Appointments Commission Act had surprised the Opposition. They read it as being of a piece with the Government’s increasing attacks on the higher judiciary. Vice President Jagdeep Dhankhar’s reference that he didn’t agree with the verdict in the Kesavananda Bharati case has rekindled the debate over the doctrine of separation of powers and triggered renewed alarm bells in the Opposition camp.
The 7-6 decision of the Supreme Court in the landmark case of 1973 enunciated the Basic Structure Doctrine under which the court asserted its right to quash amendments that it felt violated the fundamental architecture of the Constitution. This was seen as a push back to the Indira Gandhi government which had started showing authoritarian tendencies. The Opposition then celebrated the verdict then but within days Indira moved to undermine it by making Justice A N Ray — who had dissented — as the Chief Justice of India superseding at least three senior judges.
Barely three years later, during Emergency, her government passed three Constitutional amendment bills that, together, sought to nullify the Kesavananda Bharati verdict.
The 39th Amendment barred any challenge to the election of the President, Vice-President, Speaker and Prime Minister; the 41st Amendment prohibited any case, civil or criminal, being filed against the President, Vice-President, Prime Minister or the Governors; and the 42nd amendment vested Parliament with unbridled powers to amend the Constitution denying courts the power of review.
Clearly, the shoe is on the other foot.
The main Opposition Congress led a strident criticism Thursday against Dhankhar. The question, many in the Opposition said, was whether he was airing his opinion or was he reflecting the mind of the government?
Senior Congress leader and former Union Minister P Chidambaram said Dhankhar is “wrong when he says that Parliament is supreme”. He said “it is the Constitution that is supreme” and, interestingly, argued the basic structure doctrine was evolved in order to prevent a “majoritarian-driven assault on the foundational principles of the Constitution.”
Chidambaram argued: “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?”
He said that nothing prevented the Government from introducing a new Bill after the NJAC Act was struck down by the Supreme Court. “The striking down of one Act does not mean that the “basic structure” doctrine is wrong. In fact, the Hon’ble Chairman’s views should warn every Constitution-loving citizen to be alert to the dangers ahead,” he said.
Congress communication head Jairam Ramesh said Dhankhar has “taken the confrontation with the Supreme Court to an altogether different level.” He said that “legal luminaries of BJP like Arun Jaitley” had hailed it as a milestone. “Now, the Chairman of Rajya Sabha says it was wrong. Extraordinary attack on the judiciary!”
Speaking to The Indian Express, former Law Minister and Rajya Sabha MP Kapil Sibal said: “If he (Dhankar) is speaking on behalf of the government, then the appropriate procedure is for the government to seek a review of the decision. At least then we will know where this government stands,” he said.
Basic structure, Sibal said, includes many elements. “It includes the rule of law, the separation of powers, judicial independence, the power of judicial review, federalism, secularism which in this context means religious harmony and respect for disparate religious beliefs….the rule of law encapsulates the right to equality, right to personal liberty, right to free speech.. I am sure the Vice President, who is a renowned lawyer and a man who is familiar with legal issues, will certainly not like to see free speech or liberty to be curtailed or the rule of law to be jettisoned,” he said.
“Any rejection of the basic structure theory would mean that Parliament can amend any provision of the Constitution and even take away the right to life and liberty. It can by law do anything it wants,” said Sibal. “At the heart of the basic structure theory is the concept of judicial review and the supremacy of the Constitution. The supremacy of the Constitution is articulated through rulings of the court. In Kesavananda Bharati, 13 judges of the court held that there are certain basic features of the Constitution that cannot be amended. I respect the Vice President’s opinion…We can differ yet respect each other’s point of view,” he said.
Another former Law Minister Ashwani Kumar said that the doctrine of basic structure is now an “established principle of our Constitutional jurisprudence and has served its function by delineating the contours of constitutional power dispersed between the three organs of the State.”
“The judgment has reiterated that democracy as a part of the basic structure of the constitution. For the Vice President to suggest that parliamentary democracy is under siege on account of the NJAC is not correct, although I believe that there is a need to revisit the existing mechanism for appointment of judges,” he told The Indian Express.
The rekindled debate, he said, is of far reaching consequence for the future of India’s constitutional democracy.
RJD Rajya Sabha MP Manoj Kumar Jha said Dhankhar’s statement does not “go down well with our collective memory, with our collective sense…how we have seen the debate on basic structure so far.”
“That judgment set many things in order,” Jha said. “it put a kind of a bar on temptation on the part of any leader or executive using the legislature to tamper with the idea of basic structure.”
CPM General Secretary Sitaram Yechury said the Vice President should realise that it is the Constitution of India which established Parliament. “The Constitution established all the organs of our democracy and Parliament derives its power and authority — like the other organs — from the Constitution. So the basic supremacy is that of the Constitution of India.”
He said the Constitution of India rests the supremacy exclusively in the hands of the people.
“The centrality of the Constitution is that the sovereignty lies with the people… That is why the Preamble begins by saying ‘we the people’ and it ends by saying ‘adopt and enact this Constitution’…The elected representatives are not the people. That is where the Vice President is confusing. Elected representatives are the medium through which people exercise their sovereignty,” he said.
