Justice katju
A war of words seems to have broken out between Indian Vice President Jagdeep Dhankhar 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 Dhankhar, 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 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
न्यायपूर्ण टिप्पणी।।साधुवाद आपको ।।
🙏 🙏 🙏
If wrong issues are resolved by the honourable Supreme Court of India, the judgment of the Court must be respected. If necessary, Constition of India may be amended for this purpose. 🙏
In God We Trust ! Justice, Jayaho !!!
It seems that the “wisdom of the people” is being used as per convenience by the Honourable Court. In the Tamilnadu Governor’s case, it holds that the wisdom of the people, as reflected in an act passed by a State Assembly is supreme, but in the case of the Judicial Appointments Act, it just nullified the act duly passed by the Parliament. Where is the parity? Judicial overreach does appear to be real. Will of the people cannot be superseded by the will of a couple of judges, in a democracy.
Well Balanced thoughts and advice of Justice Katju which is based on Constitutional Provisions as well as previous judgments of the SC.