'Constitution bigger than Parliament': Legal experts slam Dhankar’s remarks on judiciary

Vice President Jagdeep Dhankhar’s remarks questioning the landmark 1973 Kesavananda Bharati verdict which had held that the basic structure of the Constitution is unamendable — were slammed by legal experts who contended that the Constitution is supreme, and not the Parliament.

Dhankar at a function in Jaipur had virtually censured the judiciary saying “one-upmanship and public posturing” from judicial platforms are not good and these institutions must know how to conduct themselves.

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He was also critical of scrapping the National Judicial Appointments Commission (NJAC) in 2015 by the apex court.

Reacting to his remarks, Supreme Court Bar Association president and senior advocate Vikas Singh said there is no question of posturing as the Supreme Court decides a case on the basis of pleadings.

“I don’t really understand what he is saying. Is he saying that justice delivery should stop, or the judges should not pass judgements contrary to what the government wants it to do? As far as the judiciary is concerned there is no question of posturing as they decide a case on the basis of pleadings and judicial review is an integral part of our system,” he said.

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Noted lawyer Prashant Bhushan said in a constitutional republic, the Parliament is not supreme and rather it is the Constitution which is.

“The present government is unhappy with the basic structure doctrine because it wants no impediment to the structural changes they want to make in our democracy and polity. It’s a government which has been destroying every democratic institution and wants to do away with secularism as well,” he said

“For this reason, it wants to weaken the judiciary which it seems today as the only impediment to its quest for a fascist dictatorship. In a constitutional republic, Parliament is not supreme but the Constitution is. Mr Dhankhar should go back to study the Constitution,” Bhushan said.

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The senior lawyer said the basic structure doctrine is 50 years old and it has never been questioned thereafter by any serious jurist, lawyer and has stood the test of time .

“It was only because of basic structure doctrine that the 39 constitutional amendment which provided that prime minister’s election was beyond challenge was struck down by the Supreme Court. Several other constitutional amendments have also been struck down thereafter on this doctrine. It is obvious that this vice president who owes his position to the BJP government is making such outrageous statements only to curry favour with the people who brought him to this position,” Bhushan said.

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Former finance minister and Congress leader P Chidambaram, also a senior advocate, said Dhankhar is “wrong” in stating that Parliament is supreme and his views should warn every Constitution-loving citizen to be alert to the dangers ahead.

Reacting to Dhankhar’s remarks, he said on Twitter, “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 in order to prevent a majoritarian-driven assault on the foundational principles of the Constitution, the former Union minister said.

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“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?” Chidambaram said in a series of tweets.

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 in order to prevent a majoritarian-driven assault on the foundational principles of the Constitution.

— P. Chidambaram (@PChidambaram_IN) January 12, 2023

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?

— P. Chidambaram (@PChidambaram_IN) January 12, 2023

Senior lawyer and constitutional law expert Rakesh Dwivedi said judges in India are used to such remarks and right from the time of late Indira Gandhi there has been attack on the judiciary.

Dwivedi said the Vice President may have his own views but they are not binding on the judiciary in any manner.

“Even if he speaks in the capacity of Chairman of Rajya Sabha, they are not binding. Judiciary can take just note of it and it can go in its own way it wishes to go. The judges in India are used to this. Right from the time of Indira Gandhi, there has been an attack on the judiciary. Judges are made of sterner stuff. they are not people who will be blown away by these public statements,” he said.

“Everyday on social media, so many things are being said. Judges have to learn with this. They can withstand all this. This has virtually become part of the democracy since long. I am not approving this and the manner in which these things are said. There are alternative ways, in conferences, seminars these things can be said in a much more suave manner and in a better tone. Our judges know how to deal with all this and ignore it as well,” he said.

(With agency inputs)