Dhankhar's remarks: Assault on the Constitution

If Dhankhar's views on the relationship between parliament and judiciary were faulty, his view on the basic structure of the Constitution is much more damaging

Vice President Jagdeep Dhankhar has taken his criticism of the judiciary, made in his first address to the Rajya Sabha as its Chairperson, further and has now targeted the basic structure doctrine of the Constitution as such, in an obviously planned and scripted campaign. If his views on the relationship between parliament and judiciary were faulty, his view on the basic structure of the Constitution is much more damaging and consequential. The attack on the basic structure doctrine is an attack on the Constitution: If the basic structure does not exist, as Dhankhar maintains, the essential Constitution does not, too, and it will be a devalued document. In the absence of the doctrine, parliament can pass any law abridging fundamental rights, including the rights to life and equality, undermining the rule of law, abandoning the parliamentary form of government, and doing away with the separation of powers and judicial review. What will remain of our democracy then?

Dhankhar had started with his concern over the Supreme Court striking down the 99th Amendment and a parliamentary law that created the National Judicial Commission for appointment of judges to higher courts. He does not accept the judiciary’s power to strike down a constitutional amendment or law passed by parliament. He thinks it amounts to the judiciary nullifying the will of the people expressed through parliament. He pits the legislature against the judiciary and says that the “one-upmanship, public posturing from judicial platforms” is leading to the “emasculation of the power of the legislature”. He thinks the basic structure doctrine undermines parliament’s sovereignty. This a wrong and mischievous idea. Parliament is not sovereign. It is the Constitution that is supreme. The parliament is a creature of the Constitution. The idea of parliamentary supremacy in Britain cannot be ported to India which has a written Constitution that assigns different powers and responsibilities to the three organs of State. The power of judicial review, which gives the court the power to review the actions and decisions of the executive and the legislature, ensures that there are checks and balances in the system. It is the ultimate guarantor against the abridgement of the Constitution and citizens’ rights. It ensures that the system is not hijacked with the help of a majority in parliament. This is especially relevant now when majoritarianism is being boosted and promoted.

It is only now that the idea of the basic structure is being challenged by persons holding high constitutional office. This, and the persistent campaign against the collegium system and the comment of Lok Sabha Speaker Om Birla that the judiciary should respect the sanctity of legislature, cannot be seen in isolation. Dhankhar’s very combative tone and posture should also not be missed. Do they represent the government’s views? Prime Minister Narendra Modi should publicly clarify this.