Judiciary vs Executive: Can a referee become a player?

It may be inadvertent, but the VP seemed to have joined the ongoing face-off between the judiciary and the government

Prof. Hardwari Lal, an outstanding Jat leader, lawyer, politician and educationist, is said to have once quipped that there were only "one and a half educated Jats" in India – a description that, apart from himself, included Prof. Sarup Singh, who became the Vice Chancellor of Delhi University and was also Governor of Kerala and Gujarat. Since then, the population of educated men and women from the community has grown manifold, and an eminent and scholarly Jat lawyer, Jagdeep Dhankar, is today the vice-president of India and Chairman of the Rajya Sabha. India at large and Rajya Sabha MPs, in particular, will be the beneficiaries of his erudition for the next five years, at least.

However, he was unusually combative in his inaugural speech to the Rajya Sabha urging Parliament to take back from the Judiciary its untrammelled power to amend the Constitution. Dhankar then took another unusual step by reprimanding Congress leader Sonia Gandhi for comments made to her party's MPs outside the House. At a meeting of the Congress parliamentary party, she had pointed to "a calculated attempt underway to delegitimise the judiciary", describing it as a "troubling new development". She regretted that "ministers and even a high constitutional authority have been enlisted to make speeches attacking the judiciary."

Sonia Gandhi is not a member of the Rajya Sabha, nor had she named Dhankar. Nevertheless, Dhankar deplored her comments in the Rajya Sabha as "severely inappropriate" and, taking the high moral ground, criticised them as "indicating lack of faith in democracy", making his response "unavoidable".

Leader of the Opposition Mallikarjun Kharge pointed out that Dhankar's remarks were inappropriate as what "a Lok Sabha member (Sonia Gandhi) talks outside, should not be discussed in Rajya Sabha." Dhankar insisted that his dignity had been compromised, saying, "This office cannot be allowed to be dragged on partisan stance. I cannot be enlisted…I suffered the allegation that I was a part of a system to delegitimise judiciary, which means sounding a death knell of democracy. "

Perhaps the chairman of the Rajya Sabha did not realise the consequences of his inaugural speech in which he seemed to urge Parliament to take on the judiciary on the appointment of judges. He argued against the Supreme Court's 13-judge bench judgment on the "Basic Structure" doctrine, which sets the outer boundaries of Parliament's power to amend the Constitution and is also the basis of the "Collegium" system of appointing judges.

It may have been inadvertent, but he seemed to have joined the ongoing face-off between the judiciary and the government, led by Union law minister Kiran Rijiju. The law minister recently advised the Supreme Court that it should not be hearing bail pleas and "frivolous PILs" as the pendency is high. "If the Supreme Court starts hearing bail applications or frivolous PILs, it will cause lots of extra burden," he told Parliament, adding that "we have to ask the judiciary to ensure that only deserving people are given justice".

The comment raised consternation in the legal fraternity. The Chief Justice of India, D Y Chandrachud, was compelled to point out that "no case is small for the Supreme Court" and ask, "If we do not act in matters of personal liberty and grant relief, then what are we doing here?"

The chairman of the Rajya Sabha has waded into the unresolved conflict between the Executive and the Judiciary when he is not even a player. If the Executive wants to challenge the collegium judgement or even the "Basic Structure" doctrine, it should move court. It is not the business of the chairman of the Rajya Sabha to get involved in the issue unless the demand comes from the House itself. Why should a constitutional authority seemingly put its shoulder to the Executive's effort, which seems patently partisan?

The controversy is unlikely to end soon. Congress General Secretary  Jairam Ramesh has bluntly advised Dhankar not to "cloak this debate in the guise of concern for parliamentary sovereignty". In a two-page letter to him, Ramesh has questioned the government's interference which he points out includes delaying and denying the appointment of judges to the higher judiciary recommended by the Collegium, transferring and removing judges perceived to be passing orders against the government and attempting to modify the "qualifications and manner of appointment to various judicial and quasi-judicial tribunals, such as the NGT (National Green Tribunal), and had those choices struck down by the Supreme Court."

Ramesh argued that the threat to parliamentary sovereignty was more from a government that did not give space to the Opposition in Parliament, from a prime minister who did not answer questions asked of his government, from the improper classification of Bills as Money Bills to avoid voting in the Upper House, from not referring Bills to joint parliamentary select committees when it suited the government "as in the case of the CAA (Constitution Amendment Act) and more recently the Biodiversity Amendment Bill."

Ramesh disagreed with Dhankar's position that the judiciary can do no more than just interpret the legislation passed by Parliament. Stoutly defending the "Basic Structure" doctrine to check mala fide Executive action or legislation in violation of the Constitution, he underlined several cases where the power of judicial review had halted the government's excesses – ranging from infringing the fundamental right of privacy, making Aadhar mandatory for everything and opposing bail to individuals held without just cause for long periods.

Would Dhankar now reply to Ramesh as well in the Rajya Sabha? He would do well to uphold the principle that the chairman of the Rajya Sabha is no more than a referee. He is not expected to set one institution of democracy against the other. The more he criticises the Opposition by hiding behind the dignity of the high Constitutional Office he holds, the more his neutrality is likely to be questioned. The vice-president of India must stay away from any statement or action which suggests that he is taking sides if, indeed, the government is working toward a plan to destabilise the higher judiciary.