We cannot have an ostrich-like stance” said Vice President Jagdeep Dhankhar, by way of preface to a rash of comments on the relationship between parliament and judiciary and the basic structure doctrine. Speaking at a conference of presiding officers of legislatures in Jaipur on Wednesday, the V-P sought to arrogate to himself the sheen of the truth-teller. But listen to him and it is clear that he is actually trying to contrive an opposition, by ranging one institution of constitutional democracy against the other: Legislature vs judiciary. In the V-P’s words, “one-upmanship, public posturing from judicial platforms” is leading to the “emasculation of the power of the legislature”. India’s written Constitution, he said — boldly hijacking the words of Ambedkar and Rajendra Prasad and force-fitting them into a completely different time and political context — is but a “lifeless machine”. And therefore the “basic structure” doctrine that the judiciary laid down in 1973 and invoked to strike down the constitutional amendment passed by Parliament to bring in the National Judicial Appointments Commission in 2015, underlines a fundamental antagonism between Parliament-made law and Supreme Court decision. For V-P Dhankhar, it also raises a question: “Are we a democratic nation?” Dhankhar has made similar remarks before. Repetition does not lend them any more gravitas or persuasiveness.
The basic structure doctrine was laid down by the Supreme Court in the Kesavananda Bharati judgement in the turbulent 1970s following serial attrition between the Indira Gandhi-led executive and the court. The court ruled that while Parliament has vast powers to change the Constitution, it cannot touch certain “basic features” or foundational principles that give the Constitution its coherence or identity, make it what it is. That is, Parliament can amend, not destroy. Ever since, the doctrine has held firm and stood the test of time because the court has kept the formulation of “basic features” wide and abstract. It has been careful not to spell them out too exhaustively or narrowly and thereby tread on the toes of the elected legislature. The fact also is that, contrary to the V-P’s blunt oppositions, these checks on the powers of the legislature, which is governed by the majoritarian principle, by the court, an institution that is not, are an integral part of the democratic framework, not outside it, or in opposition to it. These constraints help maintain the fine balance that makes democracy work better for the people.
As a politician, Dhankhar was associated with the Janata Dal that positioned itself against the Congress’s excesses. He has also practised law. He knows well the perils of using the people’s mandate as unfettered license, and the dangers of shortcircuiting due process. He knows how Indira Gandhi rewarded a judge who had dissented in the basic structure case and brought in a slew of amendments during the Emergency to undermine the verdict, to clip many a court’s wing. As Vice President of a large and diverse nation, he must resist the seductions of zero-sum scenarios. Surely, he doesn’t want to be seen on the same side as Indira Gandhi when it comes to drawing the line for the judiciary to ensure untrammelled power for the legislature.