Vice President Jagdeep Dhankhar today said that the Chief Justice of the country shouldn't be involved in any executive appointment in a democracy like India. "How can in a country like ours or in any democracy, by statutory prescription, the Chief Justice of India participate in the selection of the CBI director? Can there be any legal rationale for it?" Mr Dhankhar wondered.
"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?" he added.
His statement has come at a time when a meeting is to be held for the selection of the next Chief Election Commissioner. The selection would be a first since the Chief Election Commissioner And Other Election Commissioners (Appointment, Conditions of Service And Term of Office) Act, 2023, was passed.
The act came after a verdict by the Supreme Court in March 2023 which directed for a three-member panel comprising the Prime Minister, the Leader of the Opposition and the Chief Justice (CJI) to operate till Parliament enacted a law. The new law, however, excluded the CJI from the panel. Detractors say the new law amounts to excessive interference of the executive in the appointments and was detrimental to the independence of the poll panel.
Chief Election Commissioner (CEC) Rajiv Kumar is set to retire on February 18 and the selection committee for appointing his successor is expected to meet possibly on Monday.
The committee - comprised of Prime Minister Narendra Modi, Law Minister Arjun Ram Meghwal, and Leader of the Opposition in the Lok Sabha Rahul Gandhi, will deliberate on the appointment a day before the Supreme Court hears petitions against the new law.
Jagdeep Dhankhar,while speaking at the National Judicial Academy in Bhopal expressed his deep concern over the breach of the principle of separation of powers and said, "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."
He said that these institutions should operate within defined constitutional bounds while "maintaining cooperative dialogue, keeping national interest 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.
Recalling his stint as Parliamentary Affairs Minister in 1990, Mr Dhankhar said the Supreme Court then had 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 the interpretation of the Constitution will be by a bench of five judges or more," he said.
"Please note, when this strength was eight, it (size of constitutional bench) was five. And the Constitution allows the highest court of the land to interpret the Constitution," he added.
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, the vice president further said.
Article 145(3) of the Constitution of India states that at least five judges are required to sit on a case involving the interpretation of the Constitution.
Mr Dhankhar, speaking about Judicial review, said, "Parliament is supreme in lawmaking 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."
He said in this case there can't be any intervention from any quarter because the "will of the people is reflected in a representative manner on the most sanctified platform through elections."
Mr Dhankhar further said the judiciary's public presence must be through judgments as "other mode of expression other than through judgments avoidably undermines institutional dignity".
"When we look around the globe, we never find judges reflecting the way we see here on all issues," he added.
Stressing the importance of dialogue, the Vice President said that democracy gets "thinner" if the right to express is "compromised, or throttled, or diluted".
"One facet of expression is right to vote. But more important is to express your views, your point of view. You participate in governance, and administration, by having a voice of expression. And this expression is not standalone. This expression requires dialogue. Expression without dialogue means my way or no way. Dialogue is nothing but reflection, either approval of your expression or the other point of view," he said.
"A difference of opinion should not result in confrontation. A difference of opinion must ignite an urge in us to converse to find a common ground. And sometimes yielding is a better part of discretion," he added.
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