If the government is serious about ending the logjam, it must engage the apex court in a creative manner instead of playing at proxy wars
The incessant firing at the judiciary by the Union government from the shoulders of, first, the Union law minister and, then, the Vice-President of the country, began with the collegium system of appointments in the higher judiciary as the target. It has now escalated to the next phase wherein the new target is the idea of judicial review and the power to interpret the Constitution — some of the basic precincts democracies all over the world are built on.
In the latest volley, Vice-President Jagdeep Dhankhar has questioned the doctrine of basic structure expounded in the 1973 Kesavananda Bharati case verdict of the Supreme Court, calling it a wrong precedent. The 13-member bench had said in its landmark judgment that the Parliament can amend the Constitution, including those parts related to the fundamental rights, but that the “basic structure of the Constitution could not be abrogated even by a constitutional amendment”.
The Vice-President now complains that the doctrine questions the Parliament’s power to amend the Constitution which, according to him, makes it difficult to say “we are a democratic nation”. He has also repeated his criticism of the Supreme Court striking down the National Judicial Appointments Commission Act, 2014, on the plea that it violated the principle of independence of the judiciary which was a basic structure of the Constitution. The judiciary cannot interfere with the law-making powers of the legislature, Mr Dhankhar, who is also the chairman of the Rajya Sabha, insists, reasoning that parliamentary sovereignty and autonomy are quintessential to the survival of democracy and hence cannot be compromised with — neither by the executive, nor by the judiciary.
It cannot be the case that Mr Dhankhar — who distinguished himself as an eminent lawyer before he donned the robe of a full-time politician — is unaware of the legal thought behind the doctrine of basic structure — that the Indian Parliament is a product of the Constitution, and not otherwise, and while the Constitution empowers the Parliament to make laws and even amend the Constitution itself, making fundamental changes to the Constitution will undo the logic of the Constituent Assembly and its product, the Constitution.
The government’s resentment about the collegium system has in effect led to the piling up of vacancies in high courts and the Supreme Court, and several benches have noted that the delay on the part of the government in vetting the appointments recommended by the collegium has resulted in several worthy lawyers backing off from joining the bench. The court has noted that it will not claim that the collegium system is fool-proof and that the Parliament can bring in a new law after excising the parts which the court had found to be violating the constitutional principle.
If the government is serious about ending the logjam which is sure to have a debilitating impact on jurisprudence in the country, it must engage the apex court in a creative manner instead of playing at proxy wars and shadowboxing. As for Mr Dhankhar suddenly developing a distaste for the doctrine of basic structure, one can only hope that it is not part of a larger gameplan that is intrinsic to rightwing politics — with an eye to power manufacture an artificial enemy.