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‘SC order striking down NJAC disregards people’s mandate’

NEW DELHI : Vice president Jagdeep Dhankhar on Wedesday said the Supreme Court’s 2015 judgment striking down the National Judicial Appointments Commission (NJAC) Act was a “glaring instance” of “severe compromise” of Parliamentary sovereignty and disregard of the “mandate of the people”.

His comments on the system of selecting judges for constitutional courts in the course of his opening address after assuming the office of Rajya Sabha chairperson indicated the hardening of battle-lines between the executive and the judiciary on the issue.

He cited the NJAC as an example of how the ability of the executive, judiciary and legislature to work within their domains is critical to a democracy.

“Democracy blossoms and flourishes when its three facets—the Legislature, the Judiciary and the Executive—scrupulously adhere to their respective domains,” he said, adding, “Any incursion by one, howsoever subtle, in the domain of other, has the potential to upset the governance apple cart.”

Dhankhar then continued to dwell on the issue and said there is no “parallel” in democratic history where a “duly legitimized constitutional prescription has been judicially undone.”

Dhankhar is the latest leader to weigh in on the subject. Over the past few months, law minister Kiren Rijiju has targeted the Supreme Court’s collegium system, terming it “opaque”, “alien to the Constitution”, and the only system in the world where judges appoint people who are known to them.

Chief Justice of India (CJI) Dhananjaya Y. Chandrachud tacitly responded to Rijiju by making an appeal for “constitutional statesmanship” by the executive and judiciary as he spoke at a Constitution Day function on 25 November.

The court has also repeatedly and publicly criticized delays by the government in going ahead with its recommendations for the appointment of judges to constitutional courts.

On 28 November, justice Sanjay Kishan Kaul, reacting to Rijiju’s comments that the court was welcome to go ahead and appoint judges if it felt the government was taking too long with the names, stressed that the Centre is bound to “observe the law of the land” and cannot “frustrate the entire system” of making judicial appointments just because it doesn’t like it.

On Wednesday, in a status report in the Supreme Court, the government pointed out that the process of appointing ad hoc judges in high courts, as per the Supreme Court’s April 2021 judgment, will require inclusions in the Memorandum of Procedure (MoP)— the document that guides the appointment of judges.

This is not the first time Dhankar has taken on the collegium system and the SC’s scrapping of NJAC.

Speaking at an event last week, he said, “Our judiciary being one of the critical institutions of governance, cannot be the executive or legislature. The doctrine of separation of power is fundamental to our governance. Any incursion, howsoever subtle, in the domain of the other by one has the capacity or potential to unsettle the apple cart of governance.”

On Wednesday, Dhankhar referred to the procedure followed in passing the NJAC bill and said there was “unprecedented support” for it in the Lok Sabha and the Rajya Sabha.

“Rarely in Parliamentary democracy has there been such massive support to Constitutional legislation. This process fructified into a Constitutional prescription after 16 State Assemblies out of 29 States ratified the Central Legislation; the President of India in terms of Article 111, accorded his consent on 31 December 2014….historic parliamentary mandate was undone by the Supreme Court on 16 October 2015 by a majority of 4:1 finding the same as not being in consonance with the judicially evolved doctrine of ‘Basic Structure’ of the Constitution,” he said.

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