Vice President Jagdeep Dhankhar 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’.

What did the SC say?

• Vice-President’s public criticism of the National Judicial Appointments Commission (NJAC) judgment may be seen as comments by a high constitutional authority against “the law of the land” (Art. 141).
• 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.
• The Parliament is free to bring a new law on judicial appointments, possibly through a constitutional amendment, but that too would be subject to judicial review.

What is Article 141?

• Article 141 provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India.
• The law declared has to be construed as a principle of law that emanates from a judgment, or an interpretation of law or judgment by the Supreme Court, upon which, the case is decided.
• This article forms the basis of Doctrine of Precedent in India.

What has the VP accused the judiciary of?

• Dilution of Parliamentary Sovereignty: The Vice-President had remarked that judicial review, as was done in the case of the NJAC law, diluted parliamentary sovereignty. He had used terms like “one-upmanship”.
• Curb on Legislature: The Vice-President had said he did not “subscribe” to the landmark Kesavananda Bharati judgment of 1973 which limited the Parliament’s power under Article 368 to amend the Constitution.
• Disregard to the mandate of people: Dhankhar said no institution can wield power or authority to neutralise the mandate of people.

Notes for Aspirants

A classic observation in this regard was made by Chief Justice Patanjali Shastri in State of Madras versus V.G. Row (1952).  Justice Shastri’s words were reproduced by Chief Justice J.S. Khehar in his lead opinion for the Constitution Bench in the NJAC case in October 2015.

(1) Actual nature of Judicial Review

• Justice Shastri 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”.
• The Kesavananda Bharati verdict (1973) had made it clear that judicial review is not a means to usurp parliamentary sovereignty.
• It is a “system of checks and balances” to ensure constitutional functionaries do not exceed their limits.

(2) Limitations to Article 368

• Article 368 postulates only a ‘procedure’ for amendment of the Constitution.
• The same could not be treated as a ‘power’ vested in the Parliament to amend the Constitution so as to alter the ‘core’ of the Constitution, which has also been described as the ‘basic structure’ of the Constitution.

Back2Basics: Doctrine of Precedent

• Any judicial system’s structure places a high priority on the notion of precedent.
• It suggests that a judgement made by a court at the top of the judicial food chain binds courts below it.
• According to Article 141 of the Indian Constitution, all lower courts must abide by the Supreme Court’s interpretation of the law.
• Similar to this, a State’s High Court’s decision is binding on all Lower Courts within that state, and a division bench of a State High Court’s ruling is binding on the Justices sitting singly in that High court.

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