In Legislature vs Judiciary, Jagdeep Dhankhar's Comments Trigger Fresh Row

The legislature versus judiciary debate has gone up a notch after the Rajya Sabha chairman Jagdeep Dhankhar's comments and the sharp reaction of the Congress. While Mr Dhankhar has questioned the basic structure doctrine and indicated that the judiciary should know its limits, the Congress has declared that he should "get back to textbooks" and the "Constitution is supreme, and not the legislature". Mr Dhankhar's criticism of a 1973 supreme Court judgment considered a landmark, was an "extraordinary attack on the judiciary," the Congress said.

At a programme in Jaipur, Mr Dhankhar said the scrapping of the National Judicial Appointments Commission Act by the top court, was "a scenario perhaps unparalleled in the democratic history of the world".

"The legislature is supreme... it has the right to make laws and so it is hoped that all institutions will remain in their limits... of course, they can scrutinise the law but to do a PIL on every law is also not appropriate," he said.

In this context, he also said that he disagreed with the historic 1973 Supreme Court judgment on the Kesavananda Bharati case -- an earlier instance of the legislature versus judiciary debate.

"In 1973, a wrong precedent (galat parampara) started. In the Kesavananda Bharati case, the Supreme Court gave the idea of basic structure saying that Parliament can amend the Constitution but not its basic structure," Mr Dhankhar said.

In the Kesavananda Bharati case, the top court had dealt with questions on the extent of constitutional amendment that is possible and concluded that parliament can amend the Constitution, but it cannot change its basic structure.

Mr Dhankhar was seconded by Speaker Om Birla at the same 83rd All India Presiding Officers' Conference. "Legislatures in our country have always respected the powers of the judiciary. The judiciary is also expected to follow the principle of separation and balance of powers conferred by the Constitution," Mr Birla has said.

The Rajya Sabha chairman had slammed the scrapping of the NJAC (National Judicial Appointments Commission ) Act in his maiden speech in parliament, drawing sharp remarks from the Supreme Court. A bench headed by Justice SK Kaul had asked the Attorney General to advise constitutional authorities to refrain from making statements on the Collegium system.

"I declined to entertain the Attorney-General on this point. I cannot be a party to emasculating the powers of the legislature… Today this one-upmanship and public posturing from judicial platforms are not good. These institutions must know how to conduct themselves," Mr Dhankhar said.

The Congress said such a "no-holds-barred assault" on one Constitutional institution by another is unprecedented.

"In my 18 years as an MP, I've never heard anyone criticise the 1973 Kesavananda Bharati judgment of the Supreme Court… In fact, legal luminaries of BJP like Arun Jaitley hailed it as a milestone. Now, the Chairman of Rajya Sabha says it was wrong. Extraordinary attack on the judiciary!" Congress communications in-charge Jairam Ramesh said in a series of tweets.

"Having different views is one thing, but the Vice President has taken the confrontation with the Supreme Court to an altogether different level!" Mr Ramesh said in another tweet.

Former Union minister P Chidambaram tweeted: "The Hon'ble Chairman of the Rajya Sabha is wrong when he says that Parliament is supreme. It is the Constitution that is supreme."

The "basic structure" doctrine was evolved to prevent a majoritarian-driven assault on the foundational principles of the Constitution, said Mr Chidambaram, who is also a senior advocate.

"Suppose Parliament, by a majority, voted to convert the parliamentary system into a Presidential system. Or repeal the State List in Schedule VII and take away the exclusive legislative powers of the States. Would such amendments be valid?" he said in another tweet.

The debate on legislature versus judiciary has spiked over the issue of judicial appointments, where the government is pushing for a bigger role.

Over the last years, the government has repeatedly thumbs downed on several names chosen for elevation by the Supreme Court.

Sources said the Supreme Court Collegium has recently sent a note to the law ministry – a reminder on the appointment of judges. If the Collegium sends a name for the second time, the government has to follow the recommendation.