Balance of powers

The constitutional bedrock should stay untouched

The executive and the legislative branches of the Indian state appear to be in conflict, which does not bode well for the country. A long-lasting disagreement on who gets to appoint senior judges has now expanded into a disagreement over the very separation of powers and the final word on the constitutionality of legislation. The latest salvo in this conflict was fired by Vice-President Jagdeep Dhankhar, who declared that the “basic structure” doctrine, which limits the powers of Parliament to amend the Constitution, was itself an infringement of democracy. In 1973, in the landmark Kesavananda Bharati case, the Supreme Court noted there were specific basic features of the Constitution of India that Parliament could not amend at will. Legal scholars have debated the outline of this “basic structure” ever since, given that neither the Kesavananda Bharati judgement nor those that have come after have provided a consistent view on what features this basic structure might have. Even so, subsequent judgements have relied heavily on this doctrine and it is now part of settled law.

It is hard to see, therefore, what Mr Dhankhar imagines will be the outcome of his sequence of statements attacking the basic structure other than a broader destabilisation of the delicate separation of powers. What is worrying is that this does not appear to be a one-off incident. Not only has Mr Dhankhar spoken on this subject before since taking over as vice-president relatively recently, this particular intervention came at the 83rd All India Presiding Officers’ Conference. In other words, the impression was given that this was both the executive and the legislature arrayed against the judiciary. Such an impression was underlined by the fact that Lok Sabha Speaker Om Birla used the same conference to say that the judiciary should “confine [itself] to its limits prescribed in the Constitution”, clearly implying that in the opinion of the presiding officer of the House of the People, the Supreme Court was also overstepping itself habitually.

There is no question that the Supreme Court and some of the high courts had in the past strayed into the realm of issues that might more properly be decided by the legislature or the executive. This must, however, be corrected on a case-by-case basis, and can quite often be the simple result of legislation that is outdated or insufficiently detailed. There is a vast difference between addressing such examples of judicial overreach and seeking to overturn a doctrine that has served the Republic of India well for half a century. What is even worse is if this destabilisation of the balance of powers is being conducted merely in order to ensure the executive wins the current disagreement over judicial appointments. Many Indians, including Supreme Court judges, are aware that the collegium system, which oversees appointments at the higher judiciary, has problems of opacity and lack of accountability. Replacing it with a system that allows the executive a whip hand over the judiciary — the law minister’s reported suggestion of including a government nominee in the decision-making process of shortlisting judges — would, however, render the current problems even worse. Thus, the question of judicial appointments needs to be approached with greater sensitivity and not precipitately. Statements that seek to reduce the role of the judiciary in protecting India’s constitutional norms will not hasten a just and sustainable solution.