Reflections on the fading principle of non-intervention

In the tense interplay now between the executive and the judiciary on the appointment of judges, it is worthwhile recalling what ought to hold the key

Updated - December 16, 2022 12:27 pm IST

Published - December 16, 2022 12:08 am IST

‘These are new times and new precedents are being set’

‘These are new times and new precedents are being set’ | Photo Credit: Getty Images/iStockphoto

The President of India, Draupadi Murmu, and the Vice-President of India, Jagdeep Dhankhar, have weighed in on the surpassing significance of the separation of powers in the Indian Constitution. However, both did so in different ways, in substance and style.

Wise counsel

In her valedictory address on November 26 to the Constitution Day celebrations organised by the Supreme Court of India, Ms. Murmu said, “The Constitution outlines a map for good governance. The most crucial feature in this is the doctrine of separation of functions and powers of the three Organs of the State.... It has been the hallmark of our Republic that the three organs have respected the boundaries set in place by the Constitution... It is understandable that in the zeal to serve the best interests of the citizens, one or the other may be tempted to overstep. Yet, we can say with satisfaction and pride that the three have always attempted to keep the boundaries in mind while doing their best to function in the service of the people.”

These measured words do not point a finger at any particular organ of state. Ms. Murmu cautions them all against excessive “zeal” which may lead to transgressing the “boundaries” set for them by the Constitution. Indeed, it can be said without fear of contradiction that seldom has a leader sounded a caution so delicately and yet so effectively. Her wise counsel should be a guide to the political class and the judges.

Mr. Dhankhar, in his capacity as Chairman of the Rajya Sabha, addressed the House (“258th session of the Rajya Sabha”) for the first time on December 7. Devoting a portion of his address to the doctrine of separation of powers in the Constitution, he said, “Democracy blossoms ... when its three facets... scrupulously adhere to their respective domains. The sublimity of the Doctrine of Separation of Powers, is realised when Legislature, Judiciary and Executive optimally function in tandem and togetherness, meticulously ensuring scrupulous adherence to respective jurisdictional domain. Any incursion by one, howsoever subtle, in the domain of [the] other has the potential to upset the governance apple cart.”

And a radical departure

As the Vice-President proceeded further, he departed radically from the President’s views. He said, “We are indeed faced with this grim reality of frequent incursions.”. President Murmu had only pointed to “temptations”. Far from making the charge of “frequent incursions”, she had categorically said that it was the “hallmark” of the Indian Republic that the three organs had respected their constitutionally prescribed boundaries.

In the context of the “grim reality of frequent incursions”, Mr. Dhankhar basically focused on the Supreme Court’s decision to strike down the 99th Constitutional Amendment setting up the National Judicial Appointment Commission (NJAC). He said, “This historic parliamentary mandate was undone by the Supreme Court on October 16, 2015 by a majority of 4:1 finding the same as not being in consonance with the judicially evolved doctrine of ‘Basic Structure’ of the Constitution.” Stating this to be an unparalleled development in “democratic history”, he added, “We need to bear in mind that in democratic governance, ‘Basic’ of any ‘Basic Structure’ is the prevalence of the primacy of the mandate of the people reflected in the Parliament. Parliament is the exclusive and ultimate determinative of the architecture of the Constitution”. He regretted that Parliament had not focussed on this matter for the past seven years. It is difficult to recall another instance of any Vice-President having expressed his views on a judicial decision and in such a manner. But then these are new times and new precedents are being set.

The office of the Republic’s President is above politics. The Vice-President has to be fundamentally above politics too; he/she can only enter that arena when he/she has to exercise a ‘casting vote’ in case of an ‘equality of votes’ in a matter under the consideration of the Rajya Sabha. In the past, Vice-President’s have, in their addresses outside the House, given voice to their views on public policies. Mr. Dhankhar’s choice of words on the Supreme Court’s decision on the NJAC also tends to give an impression that he not merely made a comment on a specific case but raised questions of the long-settled matter of the ambit of Parliament’s powers to amend the Constitution.

The Minister of Law and Justice, Kiren Rijiju, has clarified in Parliament that the Government does not propose to re-introduce the NJAC with amendments. He was critical of the present collegium system for appointment of judges earlier. The Supreme Court is seized of the matter relating to delays by the Government in acting on the recommendation of the collegium in some cases. As the matter is subjudice, it would be improper to comment on the issues. It would not be improper though to recall what Mohammad Hidayatullah, a former Chief Justice of India — he is also one of Vice-President Dhankhar’s predecessor’s — has recorded in his autobiography, My Own Boswell. He wrote that the Chief Minister of Madhya Pradesh, Dr. Kailas Nath Katju, told Justice Hidayatullah when he was Chief Justice of the State that he would never intervene with judges’ appointments but caution him if he heard something adverse about any of his recommendations. This goes back to 1957, decades before the collegium system, but the principle followed by Dr. Katju holds the key even today to the interplay between the executive and the judiciary on the appointment of judges.

Vivek Katju is a retired diplomat

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