A person like Jagdeep Dhankhar, who holds the high office of the Vice President of India, launches a scathing attack against the Supreme Court on the issue of appointment of judges, while Law Minister Kiren Rijiju is already on a mission in all sincerity. The impeachment against the SC has given rise to some apprehensions about the intentions of the Narendra Modi government.
It is an open secret that Dhankhar owes unwavering loyalty to PM Modi. This was clearly reflected in his actions and words as the Governor of West Bengal. During his tenure there, he used all kinds of tactics to destabilize the Mamata Banerjee government. He converted the Raj Bhavan into a BJP office in a way.
Although his efforts failed to eclipse Mamata’s popularity, the Modi government took note of his performance and promoted him as VP.
Presiding over the Rajya Sabha for the first time as the Speaker on the opening day of the winter session of Parliament, that too by adopting a tough posture against the Supreme Court, it has become clear that the Modi government is not ready to give in smoothly. Tenure of Chief Justice of India, Justice YV Chandrachud.
Dhankhar used the first day of the session to warn the Supreme Court that more vociferous and sharp attacks were waiting to begin. Had it not happened, the Modi government would have given more time to Rijiju to run his campaign.
In his remarks on the floor of Rajya Sabha, Dhankhar said that the Supreme Court had struck down the National Judicial Appointments Commission (NJAC) Act. Going a step further, he called it a “severe compromise” of parliamentary sovereignty and a “glaring example” of disregard for the “people’s mandate”.
He even told the House that “Parliament, being the custodian of the People’s Ordinance”, was bound to “address the issue” and expressed confidence that “it would do so”.
What does this imply? He apparently tried to warn the Supreme Court to act in its own way and act within the Lakshman Rekha, a phrase earlier used by Rijiju for the Supreme Court.
There are many similarities between Rijiju’s attack on the judiciary and Dhankhar’s warning to it.
Earlier, on December 2, Dhankhar had made similar remarks while sharing the dais with the Chief Justice at the 8th Dr LM Singhvi Memorial Lecture in New Delhi.
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 should give an explanation to the country as to why it is adamant on curtailing the authority and power of the judiciary. There is no doubt that the Parliament is the exclusive and final determiner of the architecture of the Constitution, but it cannot take away the rights and powers of the Judiciary and hand it over to the Executive.
Significantly, after Modi became the PM, Parliament had passed the 99th Constitutional Amendment Bill in 2014, paving the way for the National Judicial Appointments Commission (NJAC). On 13 August 2014, the Lok Sabha voted unanimously in its favor, with no abstentions. Rajya Sabha passed it on 14 August 2014.
It was struck down by the Supreme Court on October 16, 2015, by a 4:1 majority, finding that it was not in consonance with the judicially evolved doctrine of the ‘Basic Structure’ of the Constitution.
This move of the Supreme Court certainly cannot be regarded as a serious compromise of parliamentary sovereignty and disregard of the mandate of the people. Creation of NJAC was never an election agenda of the BJP.
The Chairman of the Law Commission sent a letter to the Minister of Law, Justice and Company Affairs on 24 January 1978 containing his views (with which the Member-Secretary broadly agreed) on various points. The Speaker’s views were summed up in five paragraphs which read as follows: “At present, in accordance with the provisions of the Constitution, an informal advisory panel is appointed with regard to the appointment of Judges of the High Courts and the Supreme Court. Suspected constitutional validity.
It also mentions that the panel (or whatever name it may be given: perhaps it would be better to call it the Judges’ Appointments Committee or the Judges’ Appointments Commission) should consist of: (a) the Chief Justice of India (ex-officio); (b) the Minister of Law, Justice and Company Affairs (ex-officio): and (c) three persons, each of whom has been a Chief Justice or a Judge of the Supreme Court.
“The sitting Chief Justice should be the chairman of the panel. The panel should convey 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.”
The Speaker also suggested: “In the matter of appointment of a High Court Judge, the Chief Justice of a High Court should, before making a recommendation, consult his two most senior colleagues in the communication containing the recommendation. The Chief Justice should state that He has consulted the two senior-most colleagues and what is the view of each of them regarding the recommendation. Normally, a recommendation in which the two senior-most colleagues agree with the Chief Justice should be accepted.
The importance of an independent judiciary hardly needs to be emphasised. The basic principle of democracy is that disputes both between the citizen and the citizen as well as between the citizen and the state should be adjudicated on the basis of law and not on extraneous considerations. Justice must be done. In the case of India, the prime function of law is to protect the weak from the strong.
The interference of the government in the matter of judicial appointments makes it clear that its approach is devious in nature. It intends to subdue the judiciary and obey its decrees.
Even today, when the Supreme Court is the final authority, the Modi government takes its time to keep the appointment of judges hanging for a long time. In some cases, the wait makes a senior judge junior to the new entrant. Names that are sent later get priority while earlier names have to wait for approval.
Dhankhar and Rijiju should realize that the politics of coercion cannot yield any meaningful result. This will directly put the government in a disadvantageous position. Modi’s image and charisma have already suffered huge damage. His party may have won the elections in Gujarat, but it has lost the municipal corporations of Delhi and Himachal Pradesh. It may also face a tough challenge from the opposition in the 2024 general elections.
In short, the Modi government would do well to desist from its ongoing campaign to denigrate the judiciary and allow it to function independently. The constitution clearly says so.
views are personal