Think about rule of law: Vice-President asserting ‘survival of democracy’

We need to think about the positive morality of the Constitution. Austin defines these conventions as “positive morality of the constitution.” What is this? It was derived by Fenwick H. as “non-legal, generally agreed rules about how government should be conducted and, in particular, governing the relations between different organs of government.”

Now, Vice-President Jagdeep Dhankhar (born 18 May 1951) recently asserted that parliamentary sovereignty and autonomy are quintessential for the survival of democracy. The Rajya Sabha Chairman Dhankar said the power of the Parliament to amend the Constitution is not subject to any other authority, but the “lifeline” of democracy.

It is ‘beautifully’ said but behind it one can find a serious problem. It is explained in the words of Mr. Chidambaram’s tweet: “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 Vice-President said: “The essence of democracy lies in the prevalence of the mandate of the people and securing their welfare. The power of the Parliament to amend the Constitution and deal with legislation is not subject to any other authority. This is the lifeline of a democracy. I am sure this will engage your thoughtful consideration.

In response, eminent Parliamentarian and Supreme Court senior advocate Mr. Chidambaram said: “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? In fact, the Hon’ble Chairman’s views should warn every Constitution-loving citizen to be alert to the dangers ahead.”

Where the clear provisions to the Constitution do not need reiterate the same, but there are certain constitutional conventions which evolved from time-tested customs. The analysis of constitutional convention has constantly been made on a presumption of its existence in the Constitution over a period of time. From Constitutional issues, some conventions often fall within the realm of rules of political practice and are observed as binding by those to whom they apply. They are also based on the non-legal rights, obligation, power of the person holding office in the three branches of the government, and the relation between each government organ and government is defined and implemented by conventions. They are not done by courts or Parliament; the Constitutional Conventions are not framed by them.

Strictly, they don’t acquire the status of law or rules and as a result, are neither interpreted nor enforced by the judiciary. But it still maintains its binding character. The main purpose was to secure that the constitutional legal structure retains its adaptability to work in a dynamic environment as per prevailing constitutional values.

The Constitution: Not just a book

The Constitution of India was not written like a book. Eminent constitutional experts like Ambedkar discussed it for thousands of hours. After 1950, to this judgement of the Supreme Court Collegium System is been decided as a legally valid system of appointment and transfer of judges in the SC and all HCs. The names are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. In fact, there is no mention of the Collegium either in the original statute or in successive amendments.

The recommendations of the Collegium are binding on the Central Government if the Collegium sends the names of the judges/lawyers to the government for the second time. But a time limit is not fixed for the government to give assent to the names. This is the reason that appointment of judges takes a long time. The Supreme Court has struck down the ‘National Judicial Appointments Commission’

(Ninety-ninth Amendment Act, 2014) in 2015 on the ground that it posed a threat to the independence of the judiciary. Let us know how there was interesting talk between a Bench of the Hon’ble Supreme Court and the Union Law Minister: (This was referred to P Chidambaram)

SC: The Centre is frustrating the appointment process of judges in higher judiciary by not clearing names recommended by the Collegium.

LM: Never say that the government is sitting on the files, then don’t send the files to the government, you appoint yourself, you run the show.

SC: Let them give the power. We have no difficulty …when somebody high enough says let them do it themselves, we will do it ourselves, no difficulty.

Then, Chidambaram said: “The rising number of vacancies in the Courts — and commonsense — requires that the Executive and the Judiciary must display a degree of statesmanship to resolve the issue. Absent statesmanship, hard words will become harsh words, the wounds will continue to fester and justice will be the casualty.”

He said: “In fact, the Hon’ble Chairman's views should warn every Constitution-loving citizen to be alert to the dangers ahead.”

He cautioned: “…a scenario perhaps unparalleled in the democratic history of the world. The executive is ordained to be in compliance with the constitutional prescription emanating from Parliament. It was obligated to adhere to the NJAC. Judicial verdict cannot run it down.”

Senior Advocate Dushyant Dave referred Vice-President Jagdeep Dhankhar has characterised the Supreme Court judgment on the National Judicial Appointments Commission (NJAC) Act as “a glaring instance of severe compromise of parliamentary sovereignty and disregard of the mandate of the people.” Dave said that “the attack on the judiciary is now out in the open.” He went on to say that “we cannot have an ostrich-like stance.” The Speaker, Om Birla, added to this by demanding, like Dave, that “the judiciary was expected to follow the separation of power mandated by the Constitution.”

This month, when India celebrates its 73th Republic Day, we need to think about rule of law about justice.