Dhankar questions ‘basic structure’ doctrine, says Parliament’s sovereignty cannot be compromised by judiciary

Jaipur, Jan 11 (PTI) Vice President Jagdeep Dhankhar on Wednesday questioned the landmark 1973 Kesavananda Bharati case verdict that gave the basic structure doctrine, saying it set a bad precedent and if any authority questions Parliament’s power to amend the Constitution, it would be difficult to say “we are a democratic nation”.

As he again criticised the scrapping of the National Judicial Appointments Commission (NJAC) Act in 2015 by the apex court, Dhankhar said he does not subscribe to the Kesavananda Bharati case ruling that Parliament can amend the Constitution but not its basic structure.

The basic structure principle became the ground for setting aside several Constitutional amendments, including the quashing of the Constitutional amendment and the corresponding NJAC Act on the appointment of judges in the higher judiciary.

In the NJAC verdict, the apex court held that the law violated the principle of independence of the judiciary which was a basic tenet of the Constitution.

Dhankhar, who is the Rajya Sabha chairman, on Wednesday asserted that parliamentary sovereignty and autonomy are quintessential for the survival of democracy and cannot be permitted to be compromised by the executive or judiciary.

Addressing the 83rd All India Presiding Officers Conference here, he said that the judiciary cannot intervene in lawmaking.

“In 1973, a wrong precedent (galat parampara) started.

“In 1973, in the Kesavananda Bharati case, the Supreme Court gave the idea of basic structure saying Parliament can amend the Constitution but not its basic structure. With due respect to the judiciary, I cannot subscribe to this,” Dhankhar, who has been a Supreme Court lawyer, said.

He asked, “Can Parliament be allowed that its verdict will be subject to any authority… The executive has to follow laws and the judiciary cannot intervene in law-making.”

“If any institution on any basis strikes down the law passed by parliament then it will not be good for democracy and would be difficult to say we are a democratic nation,” the Rajya Sabha Chairman said.

Talking about the judiciary scrapping the NJAC Act, Dhankhar said it was “a scenario perhaps unparalleled in the democratic history of the world”.

“The executive is ordained to be in compliance with the constitutional prescription emanating from Parliament. It was obligated to adhere to the NJAC. Judicial verdict cannot run it down,” he said.

Parliamentary sovereignty cannot be permitted to be diluted or compromised by the executive or the judiciary, he further said.

His statement comes in the backdrop of a raging debate on the issue of appointment to the higher judiciary with the government questioning the current Collegium system and the Supreme Court defending it.

Dhankhar said no institution can wield power or authority to neutralise the mandate of people.