Manas Dasgupta
NEW DELHI, Apr 22: Even as the top government sources have said the respect for the judiciary was paramount and the BJP has distanced itself from the critics of the Supreme Court, the vice-president Jagdeep Dhankhar has not stopped his tirade against the judiciary as the debate over supremacy of each pillar of democracy rages on.
Mr Dhankhar on Tuesday again questioned the remit of the Supreme Court within the framework of the government as laid out in the Constitution, declaring the “Parliament is supreme” and that “elected representatives are the ‘ultimate masters’ of what the Constitution will be… there cannot be any authority above them.”
Mr Dhankhar, at a Delhi University event Tuesday morning, also hit back at criticism of earlier attacks, declaring “every word spoken by a constitutional functionary is guided by supreme national interest.”
The unseemly public attacks on the Supreme Court included criticism for contradictory statements, in two separate landmark verdicts, about the Preamble of the Constitution – the 1967 IC Golaknath case and the 1973 Kesavananda Bharati case. Mr Dhankhar also questioning the court’s role during the Emergency imposed by ex-Prime Minister Indira Gandhi in 1975.
“In one case, the Supreme Court says the Preamble is not part of the Constitution… in another it says it is… but let there be no doubt about the Constitution. Elected representatives will be ultimate masters of what the Constitution will be. There cannot be any authority above them…”
The Supreme Court, he said, had also overturned verdicts by nine High Courts on the imposition of Emergency, which he called “the darkest phase in democratic history” and the suspension of fundamental rights. “I say ‘darkest’ because the highest court in the land ignored the verdict of nine High Courts… that democracy’s fundamental rights could never be put on hold…”
“But that (the suspension of those rights) was done. It was held by the Supreme Court… as the sole arbiter of fundamental rights. It can suspend for as much time as it likes…” he said. “But a Prime Minister who imposed Emergency (referring to Mrs Gandhi) was held accountable in 1977 (the Congress, then in power, lost the general election). Therefore, let there be no doubt about it – the Constitution is for the people and it is a ‘repository’ of safeguarding it…” Mr Dhankhar declared. ‘
“Public representatives are severely accountable on occasion through elections. A Prime Minister who imposed an Emergency was held accountable. Democracy is for the people and is a repository of safeguarding, it is that of elected representatives,” the Vice President said while addressing an event.
“Elected representatives are the ultimate masters as to what constitutional content will be. There is no visualisation in the Constitution of any authority above Parliament. Parliament is supreme. It is as supreme as every individual in the country,” Dhankhar added.
The latest comments of Mr Dhankhar, who by virtue is also the Chairperson of the Rajya Sabha, follow the row he triggered by referring to Article 142 of the Constitution, which gives the Supreme Court special powers to pass orders that are enforceable across the country and are “necessary for doing complete justice in any cause or matter pending before it.”
Days after a landmark Supreme Court judgement that set deadlines for the President and state Governors to clear bills passed by state Assemblies, Mr Dhankhar had complained Article 142 “has become a nuclear missile against democratic forces, available to the judiciary 24×7.”
His criticism of the judiciary was followed by at least two BJP members of Parliament Nishikant Dubey and Dinesh Sharma who attacked the Supreme Court for issuing directions to the president and the governors with one of them even going to the extent of holding the Chief Justice of India Sanjiv Khanna “responsible for the civil wars” in the country.
On paper the BJP swiftly distanced itself from the remarks, calling them “personal statements” by the MPs concerned and stating that the party “completely rejects” such comments. But, in response to his comments, the Attorney General of India has been asked to sanction criminal contempt of court proceedings against Nishikant Dubey specifically for his comment that the Supreme Court was “taking the country towards anarchy” and holding Chief Justice Sanjiv Khanna, who steps down next month, responsible for the “wars taking place in the country.”
Justice Surya Kant, while hearing a contempt of court case from Karnataka about a newspaper report, expressed confidence in the strength of the judiciary. “We are not worried about the institution part, the institution comes under attack everyday!” he declared.
And, on Monday, the court had a wry (and indirect) response to the allegations of judicial overreach. Hearing a plea to direct the centre to deploy paramilitary forces in Bengal, to quell anti-Waqf Bill violence, Justice BR Gavai, who will be the next Chief Justice, remarked, “You want us to issue Writ of Mandamus to the President… As it is, we are facing allegations of encroaching into Executive…”
The Vice President’s comments were batted away by opposition leaders and prominent Supreme Court lawyers Abhishek Manu Singhvi and Kapil Sibal among others. Mr Singhvi said there was no need for Mr Dhankhar, as the holder of the second-highest constitutional post, to say what he did.
“The President of India does not comment on such things and on this issue, there is no difference between the President and the Vice President. Previous incumbents of the office have not commented on such issues and there is no reason to start this process,” he said. He also supported the court’s exercise of powers under Article 142 for “complete justice.”
Mr Sibal countered Mr Dhankhar’s “Parliament is supreme” remark, saying neither Parliament nor the Executive was is supreme but the constitution is. Mr Sibal, also the president of the Supreme Court Bar Association, said on X, “The law: Neither Parliament nor the Executive is supreme. The Constitution is supreme. The provisions of the Constitution are interpreted by the Supreme Court. That’s how this country has understood the law so far.” Mr Sibal did not name the Vice President in his post.
The senior jurist added that the top court’s recent judgments, which some BJP leaders and the Vice-President have criticised, were consistent with our constitutional values and guided by national interest. “Supreme Court: Parliament has the plenary power to pass laws. Supreme Court has the obligation to interpret the Constitution and do complete justice (Article 142). Everything the Court said is : 1) Consistent with our constitutional values 2) Guided by national interest,” Mr Sibal said in another post.
And, amid the debate, ex-Supreme Court justice Ajay Rastogi dismissed talk of ‘judicial overreach’, pointing out Parliament had the power to amend provisions in the event of disagreement with the court.
Senior Supreme Court judges have made it clear that they have taken note of the critical remarks. Justice BR Gavai, who takes over as Chief Justice of India next month, mentioned twice on Monday that the top court was being accused of encroaching on the Executive’s domain. And today, Justice Surya Kant, the third most senior judge in the Supreme Court, said the institution of the judiciary comes under attack every day and that they were “not worried.”
In his fresh attack targeting the judiciary and stressing that Parliament was “supreme,” Mr Dhankhar mentioned Justice Hans Raj Khanna, a former top court judge who stood up to the Indira Gandhi government during the Emergency in 1975, and the uncle of Chief Justice of India Sanjiv Khanna.
The Vice-President said there was a need to remind the country why the Constitution Day and the Samvidhan Hatya Divas were celebrated. “On November 29, 1949, the Constitution was adopted. And it was ravaged on June 25, 1975. That was the darkest period of democracy,” he said, referring to the Emergency. During the Emergency, Mr Dhankhar said, the Supreme Court ignored the advice of nine high courts that fundamental rights cannot be put on hold. “There was one dissent voice, and that was from an alumnus of this place,” he said, referring to Justice HR Khanna.
Justice Hans Raj Khanna became a Supreme Court judge in 1971 and was in line for the Chief Justice of India post in 1977. But that was not to be. The Indira Gandhi government imposed the Emergency in 1975. In 1976, a five-judge Constitution bench heard a case on the suspension of fundamental rights during the Emergency – known as the ADM Jabalpur vs Shivkant Shukla case – and ruled that the right to personal liberty can be suspended in the interest of the State.
Justice HR Khanna was the sole dissenting judge in that 4:1 verdict. Nine months after the judgment, the Indira Gandhi government appointed Justice MH Beg the Chief Justice, superseding Justice Khanna. Justice Khanna resigned soon after. Nine years after he died in 2008, the landmark verdict was overruled by a nine-judge bench of the Supreme Court in the Puttuswamy vs Union of India judgment.
Justice Khanna has since emerged as a symbol of resistance to State power. The BJP has often raked up the Indira Gandhi government’s treatment of the judge to attack the Congress. The current CJI Sanjiv Khanna is known to idolise his uncle. According to sources close to the family, the Chief Justice’s father, Justice Dev Raj Khanna, a judge of the Delhi High Court, and his mother, Saroj Khanna, a professor, wanted their son to become a chartered accountant because a career in law was more challenging.
But he was inspired by his uncle, who took on the State. “He always considered his uncle an idol and keenly followed his work,” sources said. Chief Justice Khanna has preserved all the copies of Justice HR Khanna’s judgments, his notes and registers, the source said. In 2019, Justice Sanjiv Khanna’s first day as a Supreme Court judge was in the courtroom his uncle once sat in. The room has a portrait of Justice HR Khanna.
The Chief Justice is set to retire next month, after which Justice BR Gavai will take over the top post.
