Satya Prakash
New Delhi, December 2
Amid stand-off between the Government and the Collegium over judicial appointments, Vice-President Jagdeep Dhankar on Friday raised questions over undoing of the NJAC Act and wondered if a constitutional amendment unanimously passed by Parliament reflecting the will of the people can be undone by the Supreme Court.
“In the year 2015-16, the Parliament was dealing with a constitutional amendment act and as a matter of record the entire Lok Sabha voted unanimously. There was no abstention and no dissention. And the amendment was passed. In Rajya Sabha it was unanimous, there was one abstention. We the peoplehellip; their ordainment was converted into a constitutional provision,” the Vice-President said.
Delivering the 8th Dr LM Singhvi Memorial Lecture on ‘Universal Adult Franchise: Translating India’s Political Transformation into a Social Transformation’, Dhankar said, “Power of the people, which was expressed through a legitimate platform, that power was undone. The world does not know of any such instance.
“I appeal to the people here, they constitute a judicial elite class, thinking minds, intellectuals ndash; please find out a parallel in the world where a constitutional provision can be undone,” he said in the presence of Chief Justice of India DY Chandrachud, several Supreme Court judges, Union Ministers, Delhi Chief Minister Arvind Kejriwal and several lawyers.
“Our Indian constitution provides in explicit terms in Art 145 (3)hellip; Interpretation of the Constitution when a substantial question of law is involved can be done by the court. Nowhere, it says that a provision can be run down. If a constitutional provision that carries the ordainment of people at large in such a vibrant democracy is undone, what will happen?” the Vice-President wondered.
The Vice-President’s assertion came close on the heels of Law Minister Kiren Rijiju’s reported statement that the Collegium could issue notification for judges’ appointment if it thought the government was sitting over its recommendations.
A Bench led by Justice Sanjay Kishan Kaul had on November 28 taken exception to Rijiju’s statement. “Names are not being cleared. How can the system work? … We have expressed our anguish. It appears that the government is unhappy that the NJAC did not pass constitutional muster… Can that be the reason not to clear the names for so longhellip; if today, the government says it will not adhere to the law of the land, then tomorrow someone will not adhere to another part. You must think of the larger picture Mr. Attorney,” the Bench had asked the Attorney-General R Venkataramani.
Parliament had passed the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act which came into force on April 13, 2015. The Amendment and the NJAC Act did away with the Collegium system of appointing judges to the higher judiciary and replaced it with a system that gave some say to the Executive in judicial appointments. However, the Supreme Court on October 16, 2015, declared the 99th Constitutional Amendment and NJAC Act unconstitutional and restored the Collegium system under which judges appoint judges.
Noting that the basis of the basic structure was primacy of the will of the people, Dhankar said, “In a democracy, there can be nothing more basic than the prevalence of the rights of the people. And the ordainment of the people should be reflected through a legitimised mechanism which is the legislature in a sanctified manner. I’m sure it is never too late to reflect and think.”
Describing the judiciary as one of the critical institutions of governance along with the executive and legislature, he said, “The doctrine of separation of powers is fundamental to our governance. The harmonious working of these institutions is vital for the growth of democracy. Any incursion, howsoever, subtle, in the domain of one by another has the capacity to unsettle the apple cart of governance.”
Noting that Parliament was far more representative today, Dhankar said, “I have an appeal that as a true citizen of this country, generate a public opinion that political stance should be distanced from sublimity of our constitutional functioning.
“It is never too late. The basic structure doctrine, we have lived with it. We have taken as such. It was by a majority of 7 to 6. As a student of law, can parliamentary sovereignty be ever compromised? Can a succeeding Parliament have to be bound by what has been done by an earlier Parliament? I leave you with this thought,” he added.
“We must keep only one thing in mind ndash;interest of Bharatndash;above everything else. It is indicated in the preamble of our constitution ndash; we the people. That means the power resides in the people – their mandate, their wisdom. Indian parliament reflects the minds of the people,” the Vice-President said.
