On Friday, India’s Vice-President, Jagdeep Dhankar, hit back at courts overturning parliamentary amendments to the Constitution. According to the Vice President, the judiciary cannot become the legislative or the executive because doing so may destabilise the system of government as a whole.

Dhankhar stated during the eighth LM Singhvi memorial lecture that our judiciary, as one of the important institutions of government, cannot be the executive or legislative.

“The doctrine of separation of power is fundamental to our governance. Any incursion, howsoever subtle, in the domain of the other by one has the capacity or potential to unsettle the apple cart of governance,” the vice president stated.

Vice president Dhankar, who also happens to be a Senior Advocate, stated that the Supreme Court overturned a Change to the constitution that was voted unanimously in Lok Sabha and unchallenged in Raya Sabha in 2015-16. Such incidents, he remarked, have no counterpart in any other democracy in the world. The vice president was alluding to the Supreme Court’s decision to disband the National Judicial Appointments Commission.

“India in 2015-16 was dealing with a constitutional amendment act and as a matter of record the entire Lok Sabha voted unanimously and there was no abstention in Lok Sabha and that amendment act was passed. In Rajya Sabha, there was no opposition. We the people their ordainment came to be reflected through the most sanctified mechanisms through the applicable mechanisms. That power was undone. The world does not know of any such instance. I appeal to all judicial minds please think of a parallel in the world where a constitutional provision can be undone,” the vice president stated.

“Power resides in ‘We the People’ – their mandate, their wisdom… If a constitutional provision that carries the ordainment of the people at large in such a vibrant democracy is undone, what will happen?” he further stated.

“I appeal to the people here, they constitute a judicial elite class, thinking minds, intellectuals – please find out a parallel in the world where a constitutional provision can be undone,” vice president Dhankar stated in the lecture where Chief Justice of India DY Chandrachud, several Supreme Court judges, Union Ministers, Delhi Chief Minister Arvind Kejriwal and several lawyers were present.

Dhankar further stated that the Indian Constitution clearly states in Article 145(3) that the court may interpret the Constitution where a serious question of law is involved. “Nowhere it says a provision can be run down,” he stated.

The vice president made these remarks following Law Minister Kiren Rijiju’s remark that the Collegium may release notification for judge appointments if it believed the government was hesitating over its recommendations, the vice president made these statements. Rijiju’s remarks offended a bench chaired by Justice Sanjay Kishan Kaul on November 28.

The Bench asked Attorney-General R Venkataramani, “Names are not being cleared. How can the system work? … We have expressed our anguish. It appears that the government is unhappy that the NJAC did not pass constitutional muster… Can that be the reason not to clear the names for so long… if today, the government says it will not adhere to the law of the land, then tomorrow someone will not adhere to another part? You must think of the larger picture Mr Attorney.”

National judicial Appointments Commission

Notably, in August 2014, shortly after taking office for the first time, the Modi government passed the 99th Amendment to the Constitution and the National Judicial Appointments Commission bill in parliament, establishing the National Judicial Appointments Commission (NJAC). This was a planned organisation that would have been in charge of the appointment and transfer of judges to India’s higher judiciary. However, the measure was ruled unconstitutional by the Supreme Court of India in October 2015.

Judicial appointment process in India

In India, a collegium consisting of the Chief Justice of India and four senior-most judges of the Supreme Court scrutinizes and recommends the candidates for appointment to the Supreme Court. The government cannot suggest any names to the collegium. In the case of High Courts, screening of candidates for appointment to high courts is done by a collegium of chief justices of respective high courts and four senior-most judges on the HC bench.

In addition to this, the deliberations of this collegium are mostly opaque and not disclosed to the public. There is high scope for nepotism and elite self-recruitment to top courts in this collegium system. The reason cited for this system is to ensure the independence of judges.