• The public criticism aired by Vice-President Jagdeep Dhankhar on the National Judicial Appointments Commission (NJAC) judgment may be seen as comments by a high constitutional authority against “the law of the land”.
  • The Supreme Court has held that its judicial pronouncements lay down the law. Article 141 of the Constitution mandates that a law declared by the Supreme Court is binding on all courts, even the Supreme Court.
  • This is what the court has been trying to convey to the government and high constitutional authorities like Mr. Dhankar in its oral observations and orders recently.
  • That is, as long as the NJAC judgment, which upholds the Collegium system of judicial appointments, exists, the court is bound to comply with the verdict. Parliament is free to bring a new law on judicial appointments, possibly through a Constitution amendment, but that too will be subject to judicial review.
  • A Bench of Justices S.K. Kaul and A.S. Oka has told the Attorney-General to advise the government and constitutional authorities that “it is necessary that all follow the law as laid down by this court; otherwise sections of society may decide to follow their own course…”
  • Now, Mr. Dhankar had remarked that judicial review, as in the case of the NJAC law, diluted parliamentary sovereignty. He had used terms such as “one-upmanship”.
  • He had said he did not “subscribe” to the landmark Kesavananda Bharati judgment of 1973 which had propounded the idea of the Basic Structure, upheld judicial review and limited the Parliament’s power under Article 368 to amend the Constitution.

‘Checks and balances’

  • Yet, the very same Kesavananda Bharati verdict had made it clear that judicial review is not a means to usurp parliamentary sovereignty but only part of a “system of checks and balances” to ensure constitutional functionaries do not exceed their limits.
  • “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 top court had observed in the Kesavananda Bharati judgment.
  • A classic observation in this regard was made by Chief Justice Patanjali Shastri way back in 1952 in State of Madras versus V.G. Row.
  • He said judicial review was undertaken by the courts “not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid down upon them by the Constitution”. His words were reproduced by Chief Justice J.S. Khehar in his lead opinion for the Constitution Bench in the NJAC case in October 2015.
  • A reading of the NJAC judgment showed how the court had discussed instances when political parties, through Parliament, had intruded in the court’s power of judicial review.
  • The 42nd Constitution amendment introduced during the Emergency period was one. His statement that Constitution amendments constituted the “will of the people” has been repeated by successive governments in court.
  • “The same argument had been repeatedly rejected by this court. Article 368 postulates only a ‘procedure’ for amendment of the Constitution.
  • The same could not be treated as a ‘power’ vested in Parliament to amend the Constitution so as to alter the ‘core’ of the Constitution, which has also been described as the ‘basic features/basic structure’ of the Constitution,” the NJAC judgment had said, while upholding judicial independence as a basic feature of the Constitution.


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