The Trigger – Supreme Court’s Tamil Nadu vs Governor Verdict
- Kapil Sibal vs Jagdeep Dhankhar – A Clash of Constitutional Interpretation
- Can the Judiciary Amend the Constitution? Justice Katju Says No
- Article 368, Basic Structure Doctrine, and the Question of Overreach
- The Vice President’s Criticism of Judicial Overreach – Justified or Not?
- Justice Katju’s Take on the Collegium System
Separation of Powers – Are Judges Crossing the Line?
Justice Katju weighs in on the Dhankhar vs Sibal debate over the Supreme Court’s powers. Who’s right about constitutional limits—Parliament or the Judiciary?
Who is correct, Jagdeep Dhankhar or Kapil Sibal ?
By Justice Markandey Katju
A war of words seems to have broken out between Indian Vice President Jagdeep Dhankar and the President of the Supreme Court Bar Association, MP, and former Union Minister Kapil Sibal, over the judgment of the Supreme Court in State of Tamilnadu vs Governor of Tamilnadu.
I have already written an article expressing my grave reservations about the decision
While Kapil Sibal is a personal and highly respected friend of mine, and I have never met Jagdeep Dhankar, in my opinion the latter is right, and Kapil is wrong.
As mentioned in my article above, the Supreme Court cannot amend the Constitution, as that power is only with Parliament vide Article 368. But what has been witnessed repeatedly over the years is the Supreme Court amending the Constitution by judicial verdicts e.g. creation by the Second and Third Judges cases of a body called the Collegium for appointing SC and HC judges, which is foreign to Articles 124 and 217 of the Constitution.
Another example of such misuse of its power by the Supreme Court is it's verdict in Keshavanand Bharati vs Union of India which created the basic structure doctrine, which really tantamounted to amending Article 368 and carving out an exception to it, by a judicial verdict.
The Vice President has rightly said that the President of India cannot be directed to give a time bound decision when no time limit has been mentioned in Article 201 of the Constitution. He has also rightly said that some Judges legislate and act as a super Parliament by amending the law and the Constitution.
The Vice President was also correct in saying that Article 142 has sometimes been misused by the Court, as in this case.
Kapil's response was in a press conference given below :
I am afraid Kapil has not answered the basic question whether it is a legitimate exercise of power by the Supreme Court to amend the Constitution by a judicial verdict, when that power has been given only to Parliament vide Article 368.
Where is a Collegium system for appointing judges mentioned in the Constitution? And where is it mentioned that a name reiterated by the Collegium must be accepted by the Government of India ?
There were several names which were reiterated by the Supreme Court Collegium which have not been accepted by the Government. So should a contempt of court notice be issued? To whom? The Law Secretary ? He will say he is only a small fry who has to obey orders of his political masters, the Prime Minister and the Law Minister. So should a notice be issued to the latter? They will ignore it. What then ? Does the Supreme Court have a police force to arrest the Prime Minister and Law Minister ? It is absurd and ridiculous to even think about this.
The Government of India is not a weak body which can be coerced or pushed around. Decisions at the highest level of the state are to be taken by consensus, not confrontation or showing muscle.
In Divisional Manager, Aravali Golf Club vs Chander Haas, 2007, the Supreme Court observed ( vide paragraph 20 ) :
" Judges must know their limits and not try to run the government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution, and each organ of the state, the legislature, the executive, and the judiciary, must have respect for each other, and not encroach into each other's domain ".
Judges would be well advised to pay heed to the above admonition, coming from the judiciary itself.
(Justice Markandey Katju is a former Judge, of the Supreme Court of India, and former Chairman of the Press Council of India. The views expressed are his own.)
