Tag: NJAC

  • Basic structure doctrine a North Star that guides interpreters of Constitution, says CJI Chandrachud

    By PTI

    MUMBAI: Chief Justice of India D Y Chandrachud on Saturday called the basic structure doctrine a North Star that guides and gives a certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted.

    The remarks by the CJI came against the backdrop of the recent remarks by Vice President Jagdeep Dhankhar who questioned the landmark 1973 Kesavananda Bharati case verdict that gave the basic structure doctrine.

    Dhankar had said the verdict 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.”

    Delivering the Nani A Palkhivala Memorial Lecture here, the CJI said the craftsmanship of a judge lies in interpreting the text of the Constitution with the changing times while keeping its soul intact.

    “The basic structure of our Constitution, like the north star, guides and gives a certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted,” he said.

    “The basic structure or the philosophy of our Constitution is premised on the supremacy of the Constitution, rule of law, separation of powers, judicial review, secularism, federalism, freedom and the dignity of the individual and the unity and integrity of the nation.”

    The CJI said that from time to time, we require people like Nani Palkhivala, who was an eminent jurist, to hold candles in their steady hands to light the world around us. “Nani told us that our Constitution has a certain identity which cannot be altered.”

    He said the doctrine of basic structure has shown that it might be beneficial for a judge to look at how other jurisdictions have dealt with similar problems for them.

    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.

    ALSO READ | WEB SCRAWL:  In defense of the collegium

    Dhankhar, who is the Rajya Sabha chairman, recently said he does not subscribe to the Kesavananda Bharati case verdict that Parliament can amend the Constitution but not its basic structure. He had 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 in Jaipur on January 11, he said 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.

    Dhankar’s statement came against 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.

    In his lecture, Justice Chandrachud said the identity of the Indian Constitution has evolved through the interaction of Indian citizens with the Constitution and has been accompanied by judicial interpretation.

    “The craftsmanship of a judge lies in interpreting the text of the Constitution with the changing times while keeping its soul intact,” he added.

    The CJI also observed that India’s legal landscape has undergone a significant change in recent decades in favour of removing “strangulating regulations, augmenting consumer welfare and supporting commercial transactions.”

    He said the emerging world economy has erased national boundaries, and companies no longer stop at the border.

    “In recent decades, India’s legal landscape has also undergone a significant change in favour of removing strangulating regulations, augmenting consumer welfare and supporting commercial transactions.”

    The CJI noted that legislations such as the Competition law and the Insolvency and Bankruptcy Code have been enacted to promote fair market competition.

    Similarly, the Goods and Services Tax (GST) has sought to streamline indirect taxation on the supply of goods and services in India, he added.

    “If you look at the Constitution, it does not favour unbounded economic liberalism. Rather, our Constitution seeks to find the right balance.”

    The CJI further said the Constitution allows the state to change and evolve its legal and economic policies to meet societal demands.

    He said that when individuals have the opportunity to exercise their liberties and to be fairly rewarded for their efforts, then economic justice becomes one of the many interrelated dimensions of life.

    Ultimately, we share common faiths and destinies to the point that the development of each individual fosters social justice in the entire world, he added.

    “We have come a long way from the time when getting a phone required you had to wait for a decade, and buying your car even longer at times. We have come a long way from the time of the control of capital issues,” he added.

    Talking about Palkhivala and several prominent cases in which he was involved, the CJI said the eminent jurist was at the forefront of preserving the very identity and cardinal principle embedded in the Constitution.

    “Nonetheless, the larger picture of legal culture and local dimensions of law, which are dictated by the local context, should never be obfuscated. Law is always grounded in social realities.”

    MUMBAI: Chief Justice of India D Y Chandrachud on Saturday called the basic structure doctrine a North Star that guides and gives a certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted.

    The remarks by the CJI came against the backdrop of the recent remarks by Vice President Jagdeep Dhankhar who questioned the landmark 1973 Kesavananda Bharati case verdict that gave the basic structure doctrine.

    Dhankar had said the verdict 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.”

    Delivering the Nani A Palkhivala Memorial Lecture here, the CJI said the craftsmanship of a judge lies in interpreting the text of the Constitution with the changing times while keeping its soul intact.

    “The basic structure of our Constitution, like the north star, guides and gives a certain direction to the interpreters and implementers of the Constitution when the path ahead is convoluted,” he said.

    “The basic structure or the philosophy of our Constitution is premised on the supremacy of the Constitution, rule of law, separation of powers, judicial review, secularism, federalism, freedom and the dignity of the individual and the unity and integrity of the nation.”

    The CJI said that from time to time, we require people like Nani Palkhivala, who was an eminent jurist, to hold candles in their steady hands to light the world around us. “Nani told us that our Constitution has a certain identity which cannot be altered.”

    He said the doctrine of basic structure has shown that it might be beneficial for a judge to look at how other jurisdictions have dealt with similar problems for them.

    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.

    ALSO READ | WEB SCRAWL:  In defense of the collegium

    Dhankhar, who is the Rajya Sabha chairman, recently said he does not subscribe to the Kesavananda Bharati case verdict that Parliament can amend the Constitution but not its basic structure. He had 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 in Jaipur on January 11, he said 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.

    Dhankar’s statement came against 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.

    In his lecture, Justice Chandrachud said the identity of the Indian Constitution has evolved through the interaction of Indian citizens with the Constitution and has been accompanied by judicial interpretation.

    “The craftsmanship of a judge lies in interpreting the text of the Constitution with the changing times while keeping its soul intact,” he added.

    The CJI also observed that India’s legal landscape has undergone a significant change in recent decades in favour of removing “strangulating regulations, augmenting consumer welfare and supporting commercial transactions.”

    He said the emerging world economy has erased national boundaries, and companies no longer stop at the border.

    “In recent decades, India’s legal landscape has also undergone a significant change in favour of removing strangulating regulations, augmenting consumer welfare and supporting commercial transactions.”

    The CJI noted that legislations such as the Competition law and the Insolvency and Bankruptcy Code have been enacted to promote fair market competition.

    Similarly, the Goods and Services Tax (GST) has sought to streamline indirect taxation on the supply of goods and services in India, he added.

    “If you look at the Constitution, it does not favour unbounded economic liberalism. Rather, our Constitution seeks to find the right balance.”

    The CJI further said the Constitution allows the state to change and evolve its legal and economic policies to meet societal demands.

    He said that when individuals have the opportunity to exercise their liberties and to be fairly rewarded for their efforts, then economic justice becomes one of the many interrelated dimensions of life.

    Ultimately, we share common faiths and destinies to the point that the development of each individual fosters social justice in the entire world, he added.

    “We have come a long way from the time when getting a phone required you had to wait for a decade, and buying your car even longer at times. We have come a long way from the time of the control of capital issues,” he added.

    Talking about Palkhivala and several prominent cases in which he was involved, the CJI said the eminent jurist was at the forefront of preserving the very identity and cardinal principle embedded in the Constitution.

    “Nonetheless, the larger picture of legal culture and local dimensions of law, which are dictated by the local context, should never be obfuscated. Law is always grounded in social realities.”

  • Government misread NJAC verdict, says Additional Solicitor General Vikas Singh

    Express News Service

    NEW DELHI:  With Kiren Rijiju’s letter to Chief Justice of India DY Chandrachud seeking inclusion of government representatives in the decision making process for appointment of judges to the higher judiciary drawing flak, the Union law minister defended his missive saying it was based on the 2015’s bench verdict that struck down the National Judicial Appointments Commission (NJAC).

    “This is precise follow-up action of the direction of Supreme Court Constitution Bench while striking down the National Judicial Appointment Commission Act. The SC Constitution Bench had directed to restructure the MoP of the collegium system,” Rijiju said in a tweet.

    I hope you honour Court’s direction! This is precise follow-up action of the direction of Supreme Court Constitution Bench while striking down the National Judicial Appointment Commission Act. The SC Constitution Bench had directed to restructure the MoP of the collegium system. https://t.co/b1l0jVdCkJ
    — Kiren Rijiju (@KirenRijiju) January 16, 2023
    The five-judge bench in 2015 while declaring the NJAC Act as unconstitutional, had agreed to review the Memorandum of Procedure (MoP) of the collegium system. Noting that the existing system of judicial appointment required reforms with regards to eligibility, transparency, Secretariat and complaint mechanism, the bench had directed the restructuring of the MoP. However, the MoP is yet to be revamped. 

    Speaking to this newspaper, senior advocate and former Additional Solicitor General Vikas Singh said, “The law minister has either not read the judgment or  not understood it. He can’t ask for the Centre to be included in the collegium because collegium is already decided”.

    “MoP comes into play after the collegium makes a recommendation and the modalities for making final recommendations. According to me, this letter by the government is clearly misconceived and shows complete lack of understanding of the legal position.” Both the AAP and the Congress criticised the letter, saying it’s extremely dangerous. 

    NEW DELHI:  With Kiren Rijiju’s letter to Chief Justice of India DY Chandrachud seeking inclusion of government representatives in the decision making process for appointment of judges to the higher judiciary drawing flak, the Union law minister defended his missive saying it was based on the 2015’s bench verdict that struck down the National Judicial Appointments Commission (NJAC).

    “This is precise follow-up action of the direction of Supreme Court Constitution Bench while striking down the National Judicial Appointment Commission Act. The SC Constitution Bench had directed to restructure the MoP of the collegium system,” Rijiju said in a tweet.

    I hope you honour Court’s direction! This is precise follow-up action of the direction of Supreme Court Constitution Bench while striking down the National Judicial Appointment Commission Act. The SC Constitution Bench had directed to restructure the MoP of the collegium system. https://t.co/b1l0jVdCkJ
    — Kiren Rijiju (@KirenRijiju) January 16, 2023
    The five-judge bench in 2015 while declaring the NJAC Act as unconstitutional, had agreed to review the Memorandum of Procedure (MoP) of the collegium system. Noting that the existing system of judicial appointment required reforms with regards to eligibility, transparency, Secretariat and complaint mechanism, the bench had directed the restructuring of the MoP. However, the MoP is yet to be revamped. 

    Speaking to this newspaper, senior advocate and former Additional Solicitor General Vikas Singh said, “The law minister has either not read the judgment or  not understood it. He can’t ask for the Centre to be included in the collegium because collegium is already decided”.

    “MoP comes into play after the collegium makes a recommendation and the modalities for making final recommendations. According to me, this letter by the government is clearly misconceived and shows complete lack of understanding of the legal position.” Both the AAP and the Congress criticised the letter, saying it’s extremely dangerous. 

  • In maiden speech, VP Dhankar raps SC verdict on NJAC

    Express News Service

    NEW DELHI:  In his first speech as chairman of the Rajya Sabha, Vice President Jagdeep Dhankar on Wednesday took on the Supreme Court, describing its 2015 verdict that struck down the National Judicial Appointment Commission (NJAC) bill as a glaring instance of severe compromise of parliamentary sovereignty and disregard of people’s mandate.

    Dhankar said there is no parallel in democratic history where a legitimate Constitutional prescription was judicially undone. He underscored Parliament’s position as the exclusive and the ultimate determinative of the architecture of the Constitution.

    “Hon’ble members, there is no parallel to such a development in democratic history where a duly legitimised Constitutional prescription has been judicially undone. It’s a glaring instance of severe compromise of Parliamentary sovereignty,” the V-P said.

    He pointed out that the NJAC bill had received unprecedented bipartisan support but was quashed on the ground that it was not in sync with the basic structure of the Constitution. Calling Parliament the custodian of the “ordainment of the people”, Dhankar also said it was duty bound to address the issue and expressed confidence that it would do so. 

    Democracy blossoms and flourishes when its three facets the legislature, the judiciary and the executive scrupulously adhere to their respective domains, Dhankhar said, adding that the doctrine of separation of powers must be respected. “Any incursion by one institution in the domain of the other has the potential to upset the governance apple cart,” he said.

    Last week, speaking at an event in the presence of Chief Justice of India D Y Chandrachud, Dhankar had said the power of the people reflected through the most certified mechanism on a legitimised platform, was undone.

    NEW DELHI:  In his first speech as chairman of the Rajya Sabha, Vice President Jagdeep Dhankar on Wednesday took on the Supreme Court, describing its 2015 verdict that struck down the National Judicial Appointment Commission (NJAC) bill as a glaring instance of severe compromise of parliamentary sovereignty and disregard of people’s mandate.

    Dhankar said there is no parallel in democratic history where a legitimate Constitutional prescription was judicially undone. He underscored Parliament’s position as the exclusive and the ultimate determinative of the architecture of the Constitution.

    “Hon’ble members, there is no parallel to such a development in democratic history where a duly legitimised Constitutional prescription has been judicially undone. It’s a glaring instance of severe compromise of Parliamentary sovereignty,” the V-P said.

    He pointed out that the NJAC bill had received unprecedented bipartisan support but was quashed on the ground that it was not in sync with the basic structure of the Constitution. Calling Parliament the custodian of the “ordainment of the people”, Dhankar also said it was duty bound to address the issue and expressed confidence that it would do so. 

    Democracy blossoms and flourishes when its three facets the legislature, the judiciary and the executive scrupulously adhere to their respective domains, Dhankhar said, adding that the doctrine of separation of powers must be respected. “Any incursion by one institution in the domain of the other has the potential to upset the governance apple cart,” he said.

    Last week, speaking at an event in the presence of Chief Justice of India D Y Chandrachud, Dhankar had said the power of the people reflected through the most certified mechanism on a legitimised platform, was undone.