Do not transgress separation of powers

The Supreme Court's Kesavananda Bharati Judgment of 1973 which restricted the power of the parliament to amend the Constitution is incorrect and started a wrong tradition, Vice President and senior advocate Jagdeep Dhankhar said on Wednesday. The judgment, he said, gave the idea that parliament can amend the Constitution but not its basic structure.

The Vice President himself is a senior lawyer and knows the Constitution better. He was not attacking the judiciary but only suggesting his view point. He was speaking at the 83rd All India Presiding Officers' Conference in Jaipur. This is not the first time that the V-P expressed his opinion on this count. Pertinently, he was critical of what he considered as public posturing from judicial platforms. Even as the Chairman of Rajya Sabha, the other day, when he reiterated his position, the Supreme Court did not take it lying down. It had taken a critical view of the comments made by Dhankhar about the Collegium system of appointing judges to the High Courts and the Supreme Court.

A bench of Justices Sanjay Kishan Kaul, Vikram Nath and Abhay S Oka had said that the comments were not well-taken, and had asked Attorney General for India R Venkataramani to "advise them" (such government functionaries). But, Dhankhar was least perturbed and insisted again at the meeting of the presiding officers that "these institutions must know how to conduct themselves. Dialogue through public platforms is not a wholesome mechanism of communication," he added. The running feud between the Constitutional position holders and the judiciary and the government is neither good for our democracy nor for the country. There is a separation of powers between the three organs that is legislature, executive and judiciary and no one should overstep into the other's domain despite the best intentions that one nurtures.

As Dhankhar pointed out democracy blossoms, and survives when the legislature, the executive and the judiciary act in togetherness. On the other hand, the SC has already conveyed to the government that it was prepared to question the processes adopted. This 'exchange of views' between these powers has the potential to impact our systems a lot. The presiding officers further resolved "the conference reaffirms its complete faith in the primacy of the people of India in lawmaking through the legislative bodies of the nation and while reposing confidence in the principle of separation of powers, exhorts all organs of State to respect the constitutional boundaries enshrined in the Constitution of India".

Jawaharlal Nehru had clearly foreseen such conflicts in saying that things could change. "We shall frame this constitution...but does anyone in this House imagine that, when a free India emerges, it will be bound down by anything that even this House might lay down for it?" As he further suggested, only what is achieved by unanimity and by cooperation is likely to survive. All those involved in such dialectics are educated in every sense and their words carry a great weight. One cannot simply dismiss their observations as trivial or as unreasonable. Yet, the exchanges leave a tinge of bitterness. Dr S Radhakrishnan had once observed "our opportunities are great but let me warn you that when power outstrips ability, we will fall on evil days."