Bhopal: Vice President Jagdeep Dhankhar on Friday wondered how can the Chief Justice of India, even by “statutory prescription”, get involved in executive appointments such as that of CBI director, and said it was time to “revisit” such norms.
Speaking at the National Judicial Academy, Bhopal, he also said that in his view, the `doctrine of basic structure’ has a very “debatable jurisprudential basis”.
“To stir your minds, how can in a country like ours or in any democracy, by statutory prescription, Chief Justice of India participate in the selection of the CBI director?” Dhankhar asked the gathering.
“Can there be any legal rationale for it? I can appreciate that the statutory prescription took shape because the Executive of the day has yielded to a judicial verdict. But time has come to revisit. This surely does not merge with democracy. How can we involve the Chief Justice of India with any executive appointment!” he said.
Executive governance by judicial decree is a “Constitutional paradox that the largest democracy on the planet cannot afford any longer,” the vice president further said.
All institutions must operate within their constitutional bounds, he said.
“Governments are accountable to the legislature. And periodically accountable to the electorate. But if executive governance is arrogated or outsourced, enforceability of accountability will not be there,” he said.
Any intervention in governance, from legislature or judiciary, is “antithetical to constitutionalism”, the vice president added.
“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 advert instances except to observe that executive governance by judiciary is being frequently noticed and discussed nearly in all quarters,” he said.
On the power of judicial review, Dhankhar said it was a “good thing” as it ensures that laws conform to the Constitution.
But when it comes to amending the Constitution, the ultimate authority is Parliament, he stressed.
“The judiciary’s public presence must be primarily through judgments. Judgments speak for themselves….Any other mode of expression… undermines institutional dignity,” he further said.
“I seek 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,” Dhankhar remarked.
He then touched on the debate surrounding the basic structure doctrine, which lays down that Parliament can not amend certain basic features of the Indian Constitution.
Referring to a book by former solicitor general Andhya Arjuna on the Kesavananda Bharati case (in which the doctrine was spelt out), he said, “Having read the book, my view is that the doctrine of the basic structure of the Constitution has a debatable, very debatable, jurisprudential basis.”
Referring to his stint as Parliamentary Affairs Minister in 1990, Dhankhar said the Supreme Court then had eight judges.
“More often than not, all the eight judges sat together (on a bench hearing a case)….When the strength of the Supreme Court was eight judges, under Article 145(3), there was a stipulation that interpretation of the Constitution will be by a bench of five judges or more,” he said.
“Please note, when this strength was eight, it (size of constitutional bench) was five. And the Constitution allows the highest court of the land to interpret the Constitution,” he added.
But under the guise of interpretation, there can be no “arrogation of authority”, and the essence and spirit which the founding fathers had in mind under Article 145(3) must be respected, the vice president further said.
“If I analyze arithmetically, they were very sure the interpretation will be by majority of judges, because the (total) strength then was eight. That five stands as it is. And the number (of total judges) is more than fourfold,” he added.
Article 145(3) of the Constitution of India states that at least five judges are required to sit on a case involving the interpretation of the Constitution.
Underlining the importance of dialogue and deliberation, the vice president said if the right to express oneself is throttled or diluted, “democracy gets thinner and thinner and thinner.”
Besides addressing the gathering at the National Judicial Academy where he also planted a sapling in the memory of his late mother Kesari Devi, the vice president attended the wedding of Union Agriculture Minister Shivraj Singh Chouhan’s younger son in the city.
