Manas Dasgupta
NEW DELHI, Apr 17: The vice-president Jagdeep Dhankhar on Thursday lambasted the Supreme Court judges days after the apex court effectively set a deadline for the President and Governors to clear bills saying that article 142 that give special powers to top court was being used as a “nuclear missile against democratic forces, available to the judiciary 24×7.”
Using very strong words for the judiciary, Mr Dhankhar said the country could not have a situation where courts direct the President. Voicing concern over the judgement, Mr Dhankhar said India had not bargained for a democracy where judges would legislate, perform Executive functions and act as a “super Parliament.”
Last week, the Supreme Court had, for the first time prescribed that the President should decide on the bills reserved for her consideration by the governor within three months from the date such reference is received. The court had equally framed timeline for the governors to clear the bills passed by the state legislatures.
Addressing the 6th batch of Rajya Sabha interns, the Vice-President said, “There is a directive to the President by a recent judgement. Where are we heading? What is happening in the country? We have to be extremely sensitive. It is not a question of someone filing a review or not. We never bargained for democracy for this day. President being called upon to decide in a time-bound manner, and if not, becomes law,” Mr Dhankhar said. “So we have judges who will legislate, who will perform executive functions, who will act as super Parliament, and absolutely have no accountability because law of the land does not apply to them.”
Mr Dhankhar said his worries were at a “very highest level” and he had never thought in “my life” that he will have the occasion to see it. He reminded the audience that the President of India is a very elevated position. President takes oath to preserve, protect and defend the Constitution. Others, including ministers, the vice president, parliamentarians and judges take oath to abide by the Constitution.
“We cannot have a situation where you direct the President of India and on what basis? The only right you have under the Constitution is to interpret the Constitution under Article 145(3). There it has to be five judges or more …,” he said.
The SC judgement came in response to a November 2023 petition filed by the Tamil Nadu government against the State’s Governor indefinitely withholding assent to ten Bills passed by the State Assembly, some as early as 2020.
The Supreme Court has put the President on a three-month deadline to decide whether or not to assent to State Bills referred to her by a Governor. The clock would begin ticking from the day the Governor referred the Bill to the President for her consideration.
“In case of any delay beyond this period, appropriate reasons would have to be recorded and conveyed to the State concerned,” the apex court held in an April 8 judgment. The States, in turn, must be cooperative to any queries or suggestions from the Centre on the Bills.
A Bench of Justices J.B. Pardiwala and R. Mahadevan declared that the President ought to, as a measure of prudence, seek the Supreme Court’s advice on Bills reserved by a Governor for her consideration on grounds of perceived unconstitutionality.
Mr Dhankhar also spoke about the massive cash haul from the home of Delhi High Court judge Yashwant Varma. “An event happened on the night of 14th and 15th of March in New Delhi, at the residence of a judge. For seven days, no one knew about it. We have to ask questions to ourselves. Is the delay explainable? Condonable? Does it not raise certain fundamental questions? In any ordinary situation, and ordinary situations define rule of law – things would have been different. It was only on 21st March, disclosed by a newspaper, that people of the country were shocked as never before.
“Thereafter, fortunately, in public domain, we had input from authoritative source, the Supreme Court of India. And the input indicated culpability. Input did not lead to doubt that something was amiss. Something required to be investigated. Now the nation waits with bated breath. The nation is restive because one of our institutions, to which people have looked up always with highest respect and deference, was put in the dock,” he said.
The Vice-President said no FIR has been filed against the judge after the cash haul. “An FIR in this country can be registered against anyone, any Constitutional functionary, including the one before you. One has only to activate the rule of law. No permission is required. But if it is Judges, their category, FIR cannot be straightaway registered. It has to be approved by the concerned in the Judiciary, but that is not given in the Constitution,” he said.
“The Constitution of India has accorded immunity from prosecution only to the Honourable President and the Honourable Governors. So how come a category beyond law has secured this immunity? Because the ill-effects of this are being felt in the mind of one and all. Every Indian, young and old, is deeply concerned. If the event had taken place at his house, the speed would have been an electronic rocket. Now it is not even a cattle cart,” said Mr Dhankhar, a senior lawyer who has practised in the Rajasthan High Court and the Supreme Court.
Mr Dhankhar said any investigation is the domain of the Executive and questioned why a committee of three judges was examining the cash haul case. “Is this committee of three judges having any sanction under any law emanating from parliament? No. And what can the committee do? Committee can at the most make a recommendation. Recommendation to whom? And for what? The kind of mechanism we have for judges, the only action finally that can be taken is by the Parliament. When proceedings of removal are initiated, a month has passed, more than that, and investigation requires speed, expedition, preservation of incriminating material. As a citizen of the country and holding position which I do, I am concerned. Are we not diluting rule of law?” he asked.
He said over a month has passed since the cash haul. “It is now over a month. Even if it is a can of worms. Even if there are skeletons in the cupboard, time to blow up the can. Time for its lid to go out. And time for the cupboard to collapse. Let the worms and skeletons be in the public domain so that cleansing takes place,” he said.
