New Delhi: Sounding a warning about judges acting as “super Parliament”, Vice President Jagdeep Dhankhar Thursday questioned the Supreme Court setting a three-month timeline for the President to decide on bills referred by governors.
He also questioned the legitimacy of a three-member panel set up by the top court to look into the row related to the discovery of a huge amount of cash from the Delhi residence of high court judge Justice Yashwant Varma, who was subsequently repatriated to the Allahabad HC from Delhi.
Speaking at the Valedictory Function of the 6th Rajya Sabha Internship Programme at the Vice-President’s Enclave, Dhankhar said candidates in any election are required to declare their assets, while “judges don’t do it. Some do, some don’t”.
He also spoke about the Supreme Court’s last week judgment in which the court, for the first time, set a three-month timeframe for the President to act on bills sent to him/her by the Governor.
“So we have judges who will legislate, who will perform executive functions, who will act as super parliament, and absolutely have no accountability because law of the land does not apply to them,” Dhankhar said.
He added, “We cannot have a situation where you direct the President of India, and on what basis?”
He also referred to the Supreme Court staying the Lokpal’s order in January this year, pertaining to the anti-corruption ombudsman’s jurisdiction to hear complaints against sitting high court judges.
He said judicial independence is not a “protection” and “some kind of impregnable cover against enquiry, investigation, probe”.
“Institutions thrive with transparency, with there being probe,” he said.
Dhankhar went on to speak about the “impregnability” of the basic structure doctrine, saying, “Just imagine, we are being sold these narratives at a critical time because we don’t ask questions. I wish somebody in the audience would have asked the question ‘what happened to your Basic Structure Doctrine in 1975 (when Emergency was imposed by the Indira Gandhi government)?”
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‘Can of worms’
He questioned the legitimacy of the inquiry mechanism initiated by the Supreme Court against Justice Varma, asserting the report submitted by the SC-appointed inquiry panel lacks legal standing.
He said the cash was allegedly found at Justice Varma’s residence on the intervening night of 14 and 15 March but the incident didn’t come to light until over a week later. “We have to ask questions to ourselves: Is the delay explainable? Condonable? Does it not raise certain fundamental questions?” he said.
The Rajya Sabha chairperson pointed out it has been over a month since the incident, and called for a reckoning: “Even if it is a can of worms, even if there are skeletons in the cupboard, (it’s) time to blow up the can. Time for its lid to go out. And time for the cupboard to collapse. Let the worms and skeletons be in the public domain so that cleansing takes place.”
Dhankhar pointed out the immunity granted to judges from criminal prosecution isn’t a part of the Constitution, which grants immunity from prosecution only to the President and Governors. The Supreme Court had ruled in 1991 that no FIR can be filed against a judge unless the government “consults” the Chief Justice of India.
“So how come a category beyond law has secured this immunity? Because the ill-effects of this are being felt in the mind of one and all. Every Indian, young and old, is deeply concerned. If the event had taken place at his house, the speed would have been an electronic rocket. Now, it is not even a cattle cart,” he said.
On appointment of judges
Dhankhar launched a tirade against the judgers’ appointments mechanism as well. He referred to Article 124 of the Constitution, which says that Supreme Court judges shall be appointed by the President after “consultation with such of the judges of the Supreme Court and of the high courts” as may be necessary.
In the series of judgments on judges’ appointments in the 1990s, the Supreme Court had held that despite the usage of the term “consultation” used with regard to judges’ appointments, the CJI would still have primacy in judicial appointments.
However, Dhankhar asserted, “Consultation is not concurrence. Consultation is consultation.”
He quoted Dr BR Ambedkar’s address in the Constituent Assembly, when Article 124 was being debated.
“[T]o allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore think that is also a dangerous proposition,” Dr Ambedkar had said.
Referring to Dr Ambedkar’s speech, Dhankhar said, “But in the Second Judge’s case in 1993, the court interpreted consultation will be read as concurrence. The two words are different…How can these two words used differently by the Constituent Assembly members in the Constitution be read differently?”
‘Executive governance by judiciary’
Dhankhar’s speech touched upon “executive governance” by judicial orders. He explained that when the government is elected by people, it is accountable to Parliament, and the government is accountable to the people. “But if this executive governance is by Judiciary, how do you ask questions? Whom do you hold accountable in elections?” he asked.
Dhankhar spoke of the importance of the legislature, judiciary and the executive operating in their own domains, saying, “Time has come for our three institutions – Legislature, Judiciary, and Executive – to blossom. And they blossom best when they operate in their own area. Any incursion by one in the domain of the other poses a challenge, which is not good. It can upset the balance.”
“The relationship between these three must be wholesome, soothing, one of deep understanding and coordination, not show of authority,” he added.
Talking about Article 142 which allows the Supreme Court to pass any order necessary to do “complete justice” in any case, he said, “Article 142 has become a nuclear missile against Democratic forces, available to judiciary 24 x 7,” he said.
The Supreme Court invoked this provision in its recent judgment to virtually grant assent to the bills that the Tamil Nadu governor did not assent to.
Legitimacy of the probe panel
Dhankhar went on to raise several questions over the three-emember committee probing the Justice Varma case, asking what was the legitimacy and the jurisdictional authority that this committee possesses.
“Is the committee under the Constitution of India? Is this committee of three judges having any sanction under any law emanating from Parliament?” he asked, while responding to both the questions in the negative.
The committee, he said, can at most make a recommendation.
He pointed out a month has passed since the incident, and asserted that an investigation requires “speed, expedition and preservation of incriminating material”.
“As a citizen of the country and holding a position which I do, I am concerned. Are we not diluting rule of law? Are we not answerable to ‘We the People’ who gave us the Constitution?” Dhankhar asked.
(Edited by Ajeet Tiwari)
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VP Dhankhar is spot on in his assessment. The current CJI Mr. Sanjiv Khanna comes across as an activist judge intent on usurping the roles of the Executive and the Legislature.
The Supreme Chief Justice of India (SCJI), Mr. Kapil Sibal, has already declared Justice Varma as innocent and “one of the finest”. The same was reported by The Print in an earlier article.
No wonder the Supreme Court thinks it can force the President of India into signing bills within a time frame.
It’s high time the legislature and the executive show some spine and stand up to the bullying from the Supreme Court. The CJI must be shown his place.
If “Milords” think they can order the President of India, they are grossly off the mark.
The Indian Constitution puts the President above everyone, including the CJI.