Let there be no threat to independence of judiciary

Democracy includes the doctrine of separation of powers between a set of institutions that act as a system of checks and balances

India is going through a crisis posed by senior government functionaries. On January 11, Vice President of India and Rajya Sabha Chairman Jagdeep Dhankhar targeted the Supreme Court for striking down the National Judicial Appointments Commission (NJAC) Act in 2015 as a severe compromise of parliamentary sovereignty which was “unparalleled in the democratic history of the world”.

On December 15, Union Minister of Law Kiren Rijiju said that the “spirit of the Constitution says that it is the government’s right to appoint judges”.

These moves have met with strong objections, arguing that this push to extend the government’s control over the judiciary, if taken to its conclusion, would erode the authority of this important institution and put an end to the separation of powers. It has also given rise to allegations that the Narendra Modi government aims to change the Constitution.

The sum of Dhankhar's contention lends itself to the interpretation that the Members of Parliament are chosen directly by the people and represent the will of the nation, which should be supreme in a democracy. Parliament should also decide who should be there in other institutions. On December 7, the Vice President said that the apex court scrapping the NJAC was an instance of “severe compromise of parliamentary sovereignty".

The Vice President also questioned the basic structure doctrine formulated by the Supreme Court, as per which Parliament cannot amend the features forming the basic structure of the Constitution.

On the basic structure of the Constitution, he said: "In the case of Kesavananda Bharati, Supreme Court gave the idea of basic structure, that Parliament can amend the Constitution but not its basic structure. With due respect to judiciary, I cannot subscribe to this. This must be deliberated. Can this be done? Can Parliament allow that its verdict will be subject to any other authority?”

Otherwise it will be difficult to say that we are a democratic nation, he said.

Coming from a veteran lawyer who has been a senior advocate in the Supreme Court, these statements are surprising. This amounts to reducing democracy to elections, and the will of the majority. Democracy is, in fact, more than mere elections and legislature or Parliament. It includes the doctrine of separation of powers between a set of institutions that act as a system of checks and balances. The judiciary is one crucial such institution.

The Indian Constitution recognises the separation of powers and roles of the three organs of the government: the Executive, the Judiciary, and the Legislature. This separation of powers ensures that no one organ of government becomes too powerful, and that the rights of citizens are protected. In this context, the Vice President's statement(s) raises concerns about the potential erosion of the independence of the judiciary, and the balance of power within the government.

It is well established that the framers of the Constitution gave us an independent judiciary. Parliament and state legislatures have the power to make the laws within their respective jurisdiction, but this power is not absolute. The Constitution vests in the judiciary the power of judicial review, to adjudicate upon the constitutional validity of all the laws. If a law made by Parliament or a state legislature violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires.

Article 368 of the Constitution gives the impression that Parliament's amending powers are absolute and encompass all parts of the document. But the Supreme Court has acted as a regulator of legislative intent ever since Independence. It has also laid down the doctrine of the basic structure of the Constitution that cannot be altered by any government simply on the strength of a majority in Parliament. Among the basic features are fundamental rights, the rule of law, judicial review, separation of powers, an independent judiciary, and federalism.

It is only now, under the current Union government that objections are being raised about this, and the will of the majority is being projected as supreme. In India, it is the Constitution that is supreme, and every organ of the government have to function under the Constitution.

The government’s argument overlooks the fact that the majority in Parliament is transient, and different parties with different ideologies have a majority in Parliament at different times. Even the parties that showed unanimity in passing the NJAC law are no longer supporting it.

Besides, a majority in Parliament does not represent the views of a majority in India. The Modi government secured just over 37 percent of the total votes polled in the 2019 general elections. That is far from the “will” of the majority in India.

Then there is also the argument against the dictatorship of the majority riding roughshod over the rights of the minority. The Constitution guarantees the rights of every citizen, and it is the courts that are the recourse open to a citizen if the government of the majority transgresses their rights.

While the Vice President's statements have sparked meaningful discussions about the balance of power within the government and the role of the judiciary in protecting citizens' rights, it is important to consider the potential consequences of such a shift in power, and to ensure that the independence of the judiciary is upheld.

(Rajesh Sinha is a journalist.)

The views expressed above are the author's own. They do not necessarily reflect the views of DH.