Amid widespread criticism of his remarks last week in which he referred to Article 142 of the constitution as a “nuclear missile against democratic forces”, Vice President Jagdeep Dhankhar doubled down and renewed his attack on the judiciary on Tuesday (April 22) to hold that it is the parliament that is “supreme”.

Dhankhar sought to address the criticism he had faced and said that the “constitution is for the people and its repository of safeguarding is that of elected representatives”. He also drew upon the 1975 Emergency imposed by Indira Gandhi and called it the “darkest period in human history of the democratic world” as the Supreme Court echoed the executive to hold that it is the sole arbitrator of fundamental rights which can be suspended by it. 

However, he then contended that there is “no visualisation in the constitution of any authority above parliament.”

Last week, Dhankhar's remarks had come as a response to the landmark judgement by the Supreme Court when it set a deadline for the President to decide on bills referred by governors of states, and said that Tamil Nadu governor R.N. Ravi’s withholding of assent over 10 bills and reserving them for the President’s assent was illegal. 

Dhankhar’s remarks on Tuesday included contradictory statements as it ignores the constitutional scheme itself which holds that the constitution is supreme, and the parliament itself is its creation, not otherwise.

Dhankhar brings up Emergency

Speaking at an event in Delhi University, Dhankhar criticised the Supreme Court by drawing attention to the Emergency of 1975. Dhankhar said that the Supreme Court had ignored the verdicts of nine high courts then that had held that fundamental rights cannot be put on hold.

“Nine high court verdicts were uniform that in democracy fundamental rights can never be put on hold, access to judiciary cannot be moderated, much less denied being a fundamental right under Article 32 of the Constitution,” he said. 

“But that was done. What was held by the Supreme Court? The executive of the day is the sole arbitrator of fundamental rights and it can suspend them for as much time as it likes. There was one dissent voice. Dissent and decent – and that emanated from an alumnus from this place,” he added.

Dhankhar was referring to the 1976 ADM Jabalpur v Shivkant Shukla case in which the Supreme Court by a 4:1 majority set aside nine high court judgements, which had ruled in favour of enforcement of fundamental rights during the Emergency. Justice H.R. Khanna, the sole dissenter, was the uncle of present Chief Justice of India Sanjiv Khanna.

While Dhankhar’s criticism of the Supreme Court in the case holds, he went on to contend that Parliament is “supreme” and that the prime minister who had imposed Emergency was “held accountable” after elections in 1977, in which Indira Gandhi lost.

“A prime minister, who imposed Emergency, was held accountable in 1977. And therefore, let there be no doubt about it, the constitution is for the people and its repository of safeguarding is that of elected representatives,” said Dhankhar.

He added, “They are the ultimate masters as to what constitutional content will be. There is no visualisation in the constitution of any authority above Parliament. Parliament is supreme and that being the situation, let me tell you, it is as supreme as every individual in the country. Part of ‘we the people’ is an atom in democracy and that atom has atomic power. And that atomic power is reflected during elections and that is why we are a democratic nation.”

Ignores Emergency’s excesses in parliament

While criticising the Emergency and holding parliament to be supreme, Dhankhar did not however make any mention of the excesses by parliament itself during the period that deepened the Emergency. The Parliament had passed a slew of amendments to the constitution that stripped judicial powers and concentrated it in the hands of Parliament.

These included The Constitution (Thirty-eighth Amendment) Act that barred judicial review of the Emergency and The Constitution (Thirty-ninth Amendment) Act that took away the power of the Supreme Court to try electoral disputes concerning the President and Vice President, vested this power in a separate body and gave immunity to the Prime Minister from electoral laws in a bid to nullify the Allahabad high court’s order that had struck down Gandhi’s election on the grounds of electoral malpractice. 

The Constitution (Forty-second Amendment) Act, another excess during the period, inserted the words "sovereign secular socialist democratic republic" in the Preamble but also stripped the judiciary of its right to hear election petitions, gave wide ranging powers to Parliament to amend the Constitution which would remain outside the ambit of judicial review. It also provided that any law passed by Parliament to implement directive principles would not be subject to judicial review.

‘Only constitution is supreme’

While Dhankhar has sought to pit one organ of the government against the other, according to constitutional experts, the constitution itself is supreme.

“The parliament, the executive, and the judiciary are all creations of the Constitution and therefore none of these institutions are supreme; it is only the constitution that is supreme. And this has been clarified by various Supreme Court judgements and it is a settled position. For instance Parliament can amend many things but not the basic structure. That is the limitation imposed on parliament on the judiciary because the judiciary's job is to interpret the constitution,” said former Lok Sabha secretary general P.D.T. Achary.

The 1973 Kesavananda Bharati judgment, which upheld the basic structure doctrine and placed limits on the power of the parliament to amend the constitution. A 13-judge constitution bench ruled 6:7 to hold that the Constitution of India has a basic structure that cannot be altered even by a constitutional amendment. The court held that the Parliament's amending power under Article 368 is not unlimited and that it cannot alter the basic structure of the constitution including principles of the rule of law, separation of powers and the independence of the judiciary.

The court held that while there is no rigid separation of powers, the Constitution itself creates a “system of checks and balances” by distributing powers between the three organs of government so that one cannot become predominant over others.

"We are unable to see how the power of judicial review makes the judiciary supreme in any sense of the word. This power is of paramount importance in a federal Constitution. Indeed it has been said that the heart and core of a democracy lies in the judicial process," the court had observed in the case.

‘Parliament under constitution, not over or above it’ 

According to Faizan Mustafa, constitutional law expert and vice-chancellor of the Chanakya National Law University, unlike the British Constitution, the primacy of the parliament has not been adopted in India.

“The framers of the Indian Constitution have not adopted the supremacy of the parliament doctrine as in Britain. Indian parliament is under the Constitution it is not over or above the Constitution. The Indian parliament is a creation of the Constitution. It is like any other authority subordinate to the Constitution. We have supremacy of the Constitution not of parliament,” he said.

“To maintain the supremacy of the Constitution, the constitutional design adopted by us is that the parliament can pass a law but the constitutionality of that law can be challenged in constitutional courts and if the law or any provisions of that law are found to be in contravention of the constitution or fundamental rights of citizens the constitutional courts would be well within their role to strike down that provision as unconstitutional.”

Mustafa said that the power of judicial review “is an integral part of the supremacy of the constitution as the Constituent Assembly representing the will of Indian people has given this power to the courts”.

“Because you can't be challenging the decisions of parliament in the parliament, you cannot be challenging the decisions of parliament in the executive which commands the majority. All the bills passed in parliament are piloted by the government. Therefore there was no option but to give this responsibility to an independent judiciary to ensure the supremacy of the constitution,” he said.

The constitutional scheme while not explicitly including separation of powers includes a system of checks and balances and separation of functions.

“Therefore a law passed by parliament can be struck down by courts, judges can be impeached by parliament, president is elected by the elected representatives in state assemblies but can be impeached by parliament, no confidence motion can be brought in the Lok Sabha or in Vidhan Sabhas against chief ministers. So the constitutional design is constitutionalism which is of limited governance. Even the Supreme Court is not supreme. They also cannot go beyond the powers given to them by the Constitution,” said Mustafa.

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