Vice-President Jagdeep Dhankhar has raised concerns over the involvement of the Chief Justice of India in executive appointments, questioning the legal rationale behind such a practice.
Speaking at the National Judicial Academy on Friday, he asserted that “executive governance by judicial decree” is a constitutional paradox that India, as the world’s largest democracy, cannot afford any longer.
Dhankhar particularly pointed to the selection of the Director of the Central Bureau of Investigation (CBI), stating that it was time to “revisit” the existing norms.
“To stir your minds, how can in a country like ours or in any democracy, by statutory prescription, Chief Justice of India participate in the selection of the CBI director?” he remarked, adding that while the practice had originated due to an executive yielding to a judicial verdict, it was inconsistent with democratic principles. “This surely does not merge with democracy. How can we involve the Chief Justice of India with any executive appointment!” he said.
Call for institutional limits
Reiterating the need for institutions to function within their constitutional limits, the Vice-President stressed that governance must remain accountable to both the legislature and the electorate.
“Governments are accountable to the legislature. And periodically accountable to the electorate. But if executive governance is arrogated or outsourced, enforceability of accountability will not be there,” he stated.
He further contended that any intervention in governance from either the legislature or judiciary was “antithetical to constitutionalism.”
While democracy thrives on “coordinated autonomy,” he observed, it also requires institutions to operate productively within their respective domains.
“Out of deference, I will not advert instances except to observe that executive governance by the judiciary is being frequently noticed and discussed in nearly all quarters,” he noted.
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Addressing the matter of judicial review, Dhankhar acknowledged its importance in ensuring that laws conform to the Constitution. However, he maintained that the power to amend the Constitution ultimately rests with Parliament.
“The judiciary’s public presence must be primarily through judgments. Judgments speak for themselves… Any other mode of expression… undermines institutional dignity,” he cautioned.
Calling for a reassessment of the current framework, he asserted that such a move would restore the judiciary to its intended role.
“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 observed.
Debate over basic structure doctrine
In his address, the Vice-President also touched upon the basic structure doctrine, which restricts Parliament from amending certain fundamental features of the Constitution.
Referring to a book by former Solicitor General Andhya Arjuna on the Kesavananda Bharati case, he said, “Having read the book, my view is that the doctrine of the basic structure of the Constitution has a debatable, very debatable, jurisprudential basis.”
He then recalled his tenure as Parliamentary Affairs Minister in 1990, when the Supreme Court had only eight judges.
“More often than not, all the eight judges sat together (on a bench hearing a case)…. 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,” he said.
Dhankhar argued that the stipulation for a five-judge constitutional bench had remained unchanged, despite the Supreme Court’s strength now having more than quadrupled.
He stressed that while the judiciary has the authority to interpret the Constitution, it cannot extend that authority beyond its intended scope.
“But under the guise of interpretation, there can be no ‘arrogation of authority’, and the essence and spirit which the founding fathers had in mind under Article 145(3) must be respected,” he remarked.
The Vice-President underscored the necessity of open discourse, stating that democracy depends on the ability to express diverse viewpoints.
“If the right to express oneself is throttled or diluted, democracy gets thinner and thinner and thinner,” he asserted.
During his visit to Bhopal, Dhankhar also planted a sapling in memory of his late mother, Kesari Devi, at the National Judicial Academy. Later, he attended the wedding of Union Agriculture Minister Shivraj Singh Chouhan’s younger son in the city.
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