Dhankar takes on judiciary over ruling on President powers

Vice President Jagdeep Dhankar came down heavily on the judiciary over its response to the reported cash seizure from the residence of Delhi High Court judge Yashwant Varma, questioning the legitimacy and jurisdictional authority of the committee of three judges investigating the case.

“There is a committee of three judges investigating the matter, but investigation is domain of the Executive. Investigation is not the domain of Judiciary…. Is the committee under the Constitution of India? No. Is this committee of three judges having any sanction under any law emanating from Parliament ? No. A committee can at most make a recommendation,”
he said. Dhankar, a former lawyer himself, was addressing the sixth batch of Rajya Sabha interns.

Referring to the cash haul on the night of March 14, he said it was known only after seven days through the media and no FIR has been filed. “The kind of mechanism we have for judges, the only action that can be taken is by the Parliament. A month has passed. An investigation requires speed, expedition and preservation of incriminating material,” he said and asked if this was not diluting rule of law.

“I would strongly urge everyone concerned to examine this as a test case. What legitimacy and jurisdictional authority does this committee possess? Can we have separate law made by a category and the law made by that category, dehors Constitution, dehors Parliament? The committee report, according to me, inherently lacks legal standing,” he said.

He also criticised the Supreme Court’s judgment that sets a deadline for the President of India to decide on legislations on bills referred by governors, and said Article 142 of the Constitution, granting special powers to the court, has become a “nuclear missile against democratic forces, available to judiciary 24×7.” These remarks against the come days after Supreme Court order ruled that Tamil Nadu Governor RN Ravi’s decision to withhold assent to 10 Bills was “illegal” and “arbitrary”. It set a three-month deadline for Presidential and gubernatorial assent to Bills passed by the legislature for the second time and said that the President’s functions are amenable to judicial review under Article 201 of the Constitution. The apex court said it would be prudent for the President to refer Bills with constitutional questions to it.

“We cannot have a situation where you direct the President of India and on what basis? The only right you have under the Constitution is to interpret the Constitution under Article 145(3). There, it has to be five judges or more,” Dhankar said.

Dhankar said the President of India was a very elevated position and takes the oath to preserve, protect and defend the Constitution. “There is a directive to the President by a recent judgment. Where are we heading? What is happening in the country? We have to be extremely sensitive. It is not a question of someone filing a review or not. We never bargained for democracy for this day. President being called upon to decide in a time-bound manner, and if not, becomes law. So we have judges who will legislate, who will perform executive functions, who will act as super-parliament, and absolutely have no accountability because law of the land does not apply to them,” he said.

Recently, former Supreme Court judge justice Rohinton Nariman spoke against any dilution of in the “basic structure” doctrine of the constitution, while speaking at the launch of his book “The Basic Structure Doctrine: Protector of Constitutional Integrity”, underlining that the basic doctrine has come to say “And if by chance, it ever goes, God help this country. Jallianwala Bagh becomes a distinct possibility,” he said.

“Can that ever occur again in free India, this time Dyer being replaced by one of our own generals or police captains and doing this to our own people? Obviously, it cannot. And the reason it cannot is because, in large measure, of this great doctrine which the Supreme Court has laid down to save us from constitutional amendments which may allow such things,” he said.

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