Bhopal: Making major remarks on the judiciary and its power over the executive, Vice President Jagdeep Dhankhar questioned the role of the Chief Justice of India in executive appointments such as the selection of the CBI Director and said the practice does not "merge with democracy".
Speaking at the National Law Academy in Bhopal on Friday, Vice President Dhankhar said, "How can in a country like ours or any democracy, by statutory prescription, Chief Justice of India participate in the selection of the CBI director? 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 the 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!"
How can in a country like ours or in any democracy, by statutory prescription, Chief Justice of India participates in the selection of the CBI Director!
— Vice-President of India (@VPIndia) February 14, 2025
Can there be any legal rationale for it? I can appreciate that the statutory prescription took shape because the Executive of… pic.twitter.com/prFMxYzhvp
The Vice President expressed his concern over the "breach" of the principle of separation of powers. "Executive governance by judicial decree is a Constitutional paradox, that the largest democracy on the planet cannot afford any longer. When institutions forget their bounds, democracy is remembered by the wounds this forgetfulness imparts. The Constitution envision harmony, a synergetic approach to be in sync, surely. A concert of chaos was never in the contemplation of the founding fathers of the Constitution. Constitutional consultation without institutional coordination is mere constitutional tokenism."
Dhankhar said that jurisdictional respect and deference requires that these institutions operate within defined constitutional bounds while maintaining cooperative dialogue, keeping national interest ever in mind.
"Executive governance reflecting the will of the people is constitutionally sanctified. Accountability is enforceable when executive roles are performed by an elected government. Governments are accountable to the legislature. And periodically accountable to the electorate. But if executive governance is arrogated or outsourced, the enforceability of accountability will not be there. Exclusively, governance lies with the government with utmost respect, any intervention from any source, in the country or outside, from legislature or judiciary, is antithetical to constitutionalism and certainly not in consonance as with fundamental premise of democracy," he added.
Democracy, the VP said, 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 to instances except observe that executive governance by the judiciary is being frequently noticed and discussed nearly in all quarters. We are a sovereign nation, our sovereignty resides in the people. The Constitution given by the people makes this sovereignty inviolable," Dhankhar remarked, emphasising that any external intervention in governance, from within or outside, contradicts the fundamental principles of democracy and constitutionalism.
It is my observation that executive governance by judiciary is being frequently noticed and discussed nearly in all quarters.
— Vice-President of India (@VPIndia) February 14, 2025
For constitutional democracy to survive, institutions must learn to differ without disrupting, and dissent without destroying.#Democracy thrives not on… pic.twitter.com/8qGBR3GXRn
Drawing attention towards the concerns related to the organisation of the constitution bench, Dhankhar stated, "When I became a parliamentary affairs minister in 1990. There were eight judges. More often than not, all the eight judges sat together. 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. Please note, when this strength was eight, it was five. And Constitution allows the highest court of the land to interpret the Constitution. You interpret what is interpretable. In the guise of interpretation, there can be no arrogation of authority. The essence and spirit with the founding fathers had in mind in under Article 145(3) about the Constitution must be respected. If I analyse arithmetically, they were very sure the interpretation would be bya majority of judges, because the strength then was eight. That five stands as it is. And the number is more than fourfold."
On judicial review and the role of Parliament, Dhankhar pointed out, "Parliament is supreme in law-making. Subject to judicial review. It's a good thing. The judicial review has to be on the anvil that the legislation is in conformity with the Constitution. But when it comes to making an amendment in the Indian Constitution, the ultimate repository, the ultimate power, the ultimate authority, and the last authority is only the Indian Parliament. There can be no intervention from any quarter whatsoever on any pretext whatsoever. Because will of the people is reflected in a representative manner on the most sanctified platform through elections."
He further stated in his address, "The judiciary's public presence must be primarily through judgments. Judgments speak for themselves. Judgments carry weightage. And under the Constitution, if the judgment emanates from the highest court of the land. It is a binding presidential body. Any other mode of expression other than through judgments avoidably undermines institutional dignity. Again? With the total command that I have, I exercise restraint to assert. 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."
He earlier in his address, highlighted the ongoing debate surrounding the basic structure doctrine, pointing out the tendency to question foundational principles while ignoring deeper structural issues.
Speaking about basic structure doctrine Dhankhar stated, "Basic structural doctrine debate reflects our institutional tendency to question foundations while ignoring structural cracks. I seek to recall observations made in a maiden speech imparted by a former Chief Justice of India, Gogoi, as a nominated member of Rajya Sabha, nominated by the Hon'ble President of India in the distinguished category of 12. I seek to quote him, the law may not be to my liking, but that does not make it arbitrary. Does it violate the basic feature of the Constitution? I have to say something about the basic structure. There is a book by the former solicitor general of India, Andhya Arjuna, on the Kesavananda Bharati case. Having read the book, my view is that the doctrine of the basic structure of the constitution has a debatable, very debatable, jurisprudential basis."
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