BHOPAL: Vice President Jagdeep Dhankhar questioned on Friday the involvement of the Chief Justice of India (CJI) in any executive appointment.
Addressing the faculty and students at the National Judicial Academy in Bhopal on Friday evening, the Vice President sais, “How can, in a country like ours or in any democracy, the Chief Justice of India participate in the selection of the CBI director? Can there be any legal rationale for it? I can appreciate that the statutory prescription took shape because the executive of the day yielded to a judicial verdict. But the time has come to revisit this. This surely does not align with democracy. How can we involve the Chief Justice of India in any executive appointment?”
Expressing deep concern over the breach of the principle of separation of powers, Dhankhar said, “Executive governance by judicial decree is a constitutional paradox that the largest democracy on the planet cannot afford any longer. When institutions forget their bounds, democracy is remembered by the wounds this forgetfulness imparts.
The Constitution envisions harmony, a synergetic approach to be in sync, surely. A concert of chaos was never in the contemplation of the founding fathers of the Constitution. Constitutional consultation without institutional coordination is mere constitutional tokenism.”
“Jurisdictional respect and deference require that these institutions operate within defined constitutional bounds while maintaining a cooperative dialogue, keeping national interest ever in mind. Executive governance, reflecting the will of the people, is constitutionally sanctified.
Accountability is enforceable when executive roles are performed by an elected government.
Governments are accountable to the legislature and periodically accountable to the electorate. But if executive governance is arrogated or outsourced, the enforceability of accountability will not exist.
Exclusively, governance lies with the government… with utmost respect, any intervention from any source, in the country or outside, from the legislature or judiciary, is antithetical to constitutionalism and certainly not in consonance with the fundamental premise of democracy,” he added.
Dhankhar further remarked, “Democracy thrives not on institutional isolation but in coordinated autonomy. Indisputably, institutions contribute productively and optimally while working in their respective domains. Out of deference, I will not refer to specific instances except to observe that executive governance by the judiciary is frequently noticed and discussed in nearly all quarters… We are a sovereign nation, and our sovereignty resides in the people. The constitution given by the people makes this sovereignty inviolable.”
Drawing attention to the concerns related to the organization of the constitution bench, he said, “When I became a parliamentary affairs minister in 1990, there were eight judges.
More often than not, all eight judges sat together. When the strength of the Supreme Court was eight judges, under Article 145(3), there was a stipulation that the interpretation of the Constitution would be by a bench of five judges or more.
Please note, when this strength was eight, it was five. And the constitution allows the highest court of the land to interpret the constitution. You interpret what is interpretable.
In the guise of interpretation, there can be no arrogation of authority. The essence and spirit with which the founding fathers had in mind under Article 145(3) about the Constitution must be respected. If I analyze arithmetically, they were very sure that the interpretation would be by a majority of judges because the strength then was eight. That five stands as it is, and the number is more than fourfold.”
While speaking about judicial review, the Vice President said, “Parliament is supreme in law-making, subject to judicial review. It's a good thing. Judicial review must be based on the premise that the legislation is in conformity with the Constitution. But when it comes to making an amendment to the Indian Constitution, the ultimate repository, the ultimate power, and the last authority is only the Indian Parliament. There can be no intervention from any quarter whatsoever on any pretext, because the will of the people is reflected in a representative manner on the most sanctified platform through elections.”
During his address, Dhankhar further stated, “The judiciary's public presence must be primarily through judgments. Judgments speak for themselves. Judgments carry weight. And under the Constitution, if the judgment emanates from the highest court of the land, it is a binding precedent. Any other mode of expression, other than through judgments, avoidably undermines institutional dignity. Again, with the total command that I have, I exercise restraint to assert. I seek a revisitation of the present state of affairs so that we get back to the groove—a groove that can give sublimity to our judiciary. When we look around the globe, we never find judges reflecting the way we see here on all issues.”
About the basic structure doctrine, Dhankhar said, “The basic structure doctrine debate reflects our institutional tendency to question foundations while ignoring structural cracks. I seek to recall observations made in the maiden speech of a former Chief Justice of India, Ranjan Gogoi (as a nominated member of Rajya Sabha), nominated by the Hon'ble President of India in the distinguished category of 12. I seek to quote him: 'The law may not be to my liking, but that does not make it arbitrary. Does it violate the basic feature of the Constitution?' I have to say something about the basic structure. There is a book by former Solicitor General of India, Andhyarjuna, on the Kesavananda Bharati case. Having read the book, my view is that the doctrine of the basic structure of the Constitution has a debatable, very debatable, jurisprudential basis.”
While underlining the importance of dialogue and deliberation, the Vice President said, “Democracy has been evolved and defined by two words: Expression. You must have the right to express yourself. If that right is compromised, throttled, or diluted, democracy gets thinner and thinner. It is your right of expression that makes you the most important factor in democracy, a stakeholder.
One facet of expression is the right to vote. But more important is to express your views, your point of view.
You participate in governance and administration by having a voice of expression. And this expression is not standalone. This expression requires dialogue. Expression without dialogue means ‘my way or no way.’
Dialogue is nothing but reflection, either approval of your expression or the other point of view. My own experience says that in life, the other point of view is not only important, but more often than not, the correct point of view. But lending consideration to the other point of view is quintessential for humanity's development. Consideration does not mean conceding a point. Consideration means respect for all points of view. And you can find a way out if the two points cannot be reconciled. Herein comes the human spirit of cooperation, convergence, and coordination. A difference of opinion should not result in confrontation. A difference of opinion must ignite an urge in us to converse and find a common ground. Sometimes yielding is the better part of discretion.”