Where is the confrontation with the judiciary possibly headed?

Bharat Bhushan

Why did the vice-president (VP) and chairman of the Rajya Sabha, Jagdeep Dhankhar, criticise the Supreme Court in his inaugural speech to the Upper House of Parliament? He claimed that the undoing of the National Judicial Appointment Commission (NJAC) by the judiciary was a “severe compromise of parliamentary sovereignty” and a “disregard of the mandate of the people.” However, that happened in 2015, and there was no demand from the House for a discussion on NJAC.

The VP’s attack on the process of judicial appointments coincided with very public criticism of the collegium system of appointing judges by the union law minister, Kiran Rijiju. Rijiju also responded rather testily to the Supreme Court’s contention that there was a delay in government approval of the collegium nominees, “Never say that the government is sitting on the files. Then don’t send the files to the government, you appoint yourself, you run the show then.” Claiming that the collegium system was “alien” to the Constitution, he asked, “How do you expect that the country will back the decision?” Whether the country backs it or not, vice-president Dhankhar does not.

The VP, previously a senior advocate of the Supreme Court, had fired the first salvo against the Supreme Court on NJAC while delivering the L M Singhvi Memorial Lecture organised by the O P Jindal Global University. He had described the Constitutional amendment that brought about the NJAC as “the ordainment of the people”, which the Supreme Court invalidated.

The Supreme Court had declared the NJAC Act unconstitutional, arguing that the primacy of the judiciary and the limited role of the Executive in the appointment of judges was embedded in the “basic structure” of the Constitution. Dhankhar, however, believes, “The historic parliamentary mandate was undone by the Supreme Court on October 16, 2015, by a majority of 4:1 finding the same as not being in consonance with the judicially evolved doctrine of “basic structure” of the Constitution. There is no parallel to such a development in democratic history where a duly legitimised constitutional prescription has been judicially undone. A glaring instance of severe compromise of parliamentary sovereignty and disregard of the mandate of the people.”

He further advised the parliament, “In democratic governance, any ‘basic structure’ is the prevalence of primacy of the mandate of the people reflected in the parliament”, and therefore, “this House, in concert with the Lok Sabha, being the custodian of the ordainment of the people, is duty bound to address the issue.”

The “basic structure” doctrine arose out of the Kesavanand Bharti case in 1973, whereby a wafer-thin majority of 7:6, a Supreme Court bench, placed limits on the power of parliament to amend the Constitution. The majority judgement held that while parliament had unlimited authority to amend the Constitution, it was subject to the constraint that the amendment could not change its “basic structure”. This was understood as a provision to prevent the misuse of parliamentary powers. Thus, for example, the Constitution cannot be amended to convert India into a monarchy or a Hindu nation. However, no specific definition of “Basic structure” was given, and its interpretation was left to the courts.

Dhankhar claims that the basic structure test is a legal invention and not part of the Constitution. Therefore, his advice to parliament is not limited to the collegium system, which was an uneasy “compromise” between an assertive Judiciary and a weak Executive in 1993. The alliance government of P V Narasimha Rao had barely survived two no-confidence motions (in July 1992 and July 1993). It was so shaky in the aftermath of the Babri Masjid demolition that there was talk of forming a national government to replace it. State governments from Andhra Pradesh to Bihar were accused of packing High Courts with pliable judges. The Supreme Court, too, had come into controversy with the Congress saving Justice V Ramaswami from impeachment by asking its MPs to abstain during the vote.

Against this backdrop, the principle of judicial independence in appointing and transferring judges evolved. In the 1981 S P Gupta vs Union of India, the opinion of the Chief Justice of India (CJI) was not given primacy, and the SC ruled that “consultation” with the CJI specified in Articles 124 and 217 of the Constitution did not require his “concurrence”. However, in the order given in the case of Supreme Court Advocates on Record Association vs Union of India 1993, a nine-judge bench took away the Executive’s say in the appointment of judges by interpreting “consultation” to mean “concurrence” of the CJI and the two most senior judges of the Supreme Court. President Shankar Dayal Sharma acquiesced to the apex court’s interpretation as the Rao government wanted to appease the judiciary, and Sharma himself was looking for a second term. Vice-president K R Narayanan was believed to be opposed to it but to no avail. In 1988, as President, Narayanan sent a presidential reference on the matter to the Supreme Court. However, the apex court’s opinion reinforced the collegium system and expanded it to five judges.

While the collegium system is undoubtedly opaque and publicly unaccountable, it is important to ask why the 1993 compromise is now being challenged. It would be hard to argue that this is to keep the judiciary under check since very few judgements — from the Ayodhya judgement to repeated denial of bail to civil liberties activists — have gone against the current dispensation. The apex court has not taken up the Constitutional validity of reading down Article 370 or the Citizenship Amendment Act. It has barely begun hearings on the opaque procedures of generating campaign funds through electoral bonds. Judges’ pronouncements on free speech and citizens’ rights are confined to Saturday seminars and obiter dicta, mere virtue-signalling with no operational value.

The only reasonable explanation for the recent salvos against the higher judiciary is that the government wants to reach a new compromise with the judiciary. It may hope that public debate on the “basic structure” doctrine will pave the way for its judicial review. That could give the legislature unfettered powers to amend the Constitution. If that is indeed where this confrontation is headed, then the big question is in which Constitutional direction is the nation sought to be taken? Only those privy to a grand design will know the answers.