VP Jagdeep Dhankar’s stance against judiciary don’t portend well for Indian democracy

Parliament cannot take away the rights and powers of the judiciary and hand it over to the executive

VP Jagdeep Dhankar’s stance against judiciary don’t portend well for Indian democracy

Arun Srivastava

A person like Jagdeep Dhankar, holding the high office of the Vice President of India, launching a vitriolic attack against the Supreme Court on the issue of the appointment of judges, even while the Law Minister Kiren Rijiju in all sincerity has already been on a mission to cast aspersions against the SC, has given rise to certain apprehensions about the intentions of the Narendra Modi government.

It is an open secret that Dhankar is unwaveringly loyal towards PM Modi. This got clearly manifested through his actions and utterances as the Governor of West Bengal. During his tenure there, he resorted to all sorts of intrigues to destabilise the Mamata Banerjee government. He virtually turned the Raj Bhavan into the BJP’s office.

Though his efforts failed to eclipse the popularity of Mamata, the Modi government took note of his performance and promoted him as VP.

His adopting a tough posture against the Supreme Court, that too while presiding over the Rajya Sabha for the first time as chairman on the opening day of the winter session of Parliament, has made it explicit that the Modi government is not willing to give a smooth tenure to the Chief Justice of India, Justice Y.V. Chandrachud.

Dhankar using the opening day of the session to caution the Supreme Court implies that more vociferous and scathing attacks are awaiting to be launched. Had it not been the case, the Modi government would have allowed more time to Rijiju to carry out his tirade.

In his remarks on the floor of the Rajya Sabha, Dhankhar lamented that the Supreme Court had struck down the National Judicial Appointments Commission (NJAC) Act. Going a step forward, he called it a “glaring instance” of “severe compromise” of parliamentary sovereignty and disregard of the “mandate of the people”.

He even told the house that “Parliament, being the custodian of the ordainment of the people”, was duty-bound to “address the issue” and expressed confidence that “it will do so”.

What does this imply? He obviously tried to caution the Supreme Court to mend its ways and act within the Lakshman Rekha, the phrase which was earlier used by Rijiju for the Supreme Court.

There are many similarities between the attack of Rijiju on the judiciary and the word of caution for it from Dhankar.

Earlier, while sharing the dais with the CJI at the 8th Dr L M Singhvi Memorial Lecture in New Delhi on December 2, Dhankar had made similar remarks.

Last month, Rijiju had said that the Collegium system of appointing judges was “opaque” and “not accountable” and “alien” to the Constitution. Of course, his remarks attracted the displeasure of the Supreme Court.

The Modi government owes an explanation to the country why it is adamant on curbing the authority and power of the judiciary. No doubt Parliament is the exclusive and ultimate determinative of the architecture of the Constitution, but it cannot take away the rights and powers of the judiciary and hand it over to executive.

It is worth mentioning that the Parliament had passed the 99th Constitutional Amendment Bill paving the way for the National Judicial Appointment Commission (NJAC) in 2014 after Modi became the PM. On August 13, 2014, the Lok Sabha unanimously voted in its favour, there being no abstention. The Rajya Sabha passed it on August 14, 2014.

This was undone by the Supreme Court on October 16, 2015 by a majority of 4:1 finding the same as not being in consonance with the judicially evolved doctrine of ‘Basic Structure’ of the Constitution.

This step of Supreme Court certainly cannot be treated as severe compromise of parliamentary sovereignty and disregard of the mandate of the people. The creation of NJAC was never an election agenda of BJP.

The Chairman of the Law Commission had sent a letter on January 24, 1978, to the Minister of Law, Justice and Company Affairs containing his view (with which the Member-Secretary broadly agreed) regarding various points. The views of the Chairman were incorporated in five paragraphs which read as under: "As the provisions of the Constitution stand at present, the appointment of an Informal Consultative Panel in connection with the appointment of Judges of the High Courts and the Supreme Court is of doubtful constitutional validity.”

It also mentioned that the Panel (or whatever be the name given to it: perhaps it would be better to call it Judges Appointment Committee or Judges Appointment Commission) should consist of: (a) Chief Justice of India (ex-officio); (b) Minister of Law, Justice and Company Affairs (ex-officio): and (c) three persons, each of whom has been Chief Justice or a Judge of the Supreme Court.

"The sitting Chief Justice should be the Chairman of the Panel. The Panel should express its views to the Government about the suitability of persons to be appointed as Judges and Chief Justices of the High Courts and the Supreme Court,” it said.

The Chairman also suggested: “In case of the appointment of a Judge of the High Court, the Chief Justice of the High Court, before making recommendation, should consult his two senior most colleagues in the communication containing the recommendation. The Chief Justice should state that he has consulted the two senior most colleagues and what has been the view of each of them in respect of the recommendation. Normally, a recommendation in which the two senior most colleagues concur with the Chief Justice, should be accepted.”

It is needless to emphasise the importance of an independent judiciary. The basic postulate of democracy is that the adjudication of disputes both between citizen and citizen as also between the citizen and the State ought to proceed on the basis of law and not on extraneous considerations. Justice must be done. In case of India, the principal function of the law is to protect the weak from the strong.

The intrusion of the government in the matter of judicial appointments makes it crystal clear that its approach is of a devious nature. It intends to turn the judiciary subservient and make it follow its diktats.

Even today, when the ultimate authority lies with the Supreme Court, the Modi government takes its own sweet time to keep hanging the appointment of judges for long periods of time. In some cases, the wait makes a senior judge junior to the new entrant. The names which are sent later get priority while the names earlier have to wait for clearance.    

Dhankar and Rijiju must realise that politics of coercion may not bear any fruitful result. It will simply put the government in a disadvantageous position. The image and charisma of Modi have already suffered a huge damage. His party might have won the election of Gujarat, but it has lost the Municipal Corporation of Delhi and Himachal Pradesh. It is also likely to face a stiff challenge from the Opposition in the 2024 General Election.

In sum, the Modi government would do well to abstain from its ongoing campaign to humiliate the judiciary and allow it to function independently. That's what the Constitution clearly mandates.

(IPA Service)

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    Published: 08 Dec 2022, 6:37 PM