'How Can CJI Be..?': Dhankar Questions Involvement in Executive Appointment

Bhopal: Vice President Jagdeep Dhankhar, Speaking at the National Judicial Academy in Bhopal, questioned how the Chief Justice of India, even through "statutory prescription," could be involved in executive appointments like that of the CBI director.

“How can in a country like ours or in any democracy, by statutory prescription, Chief Justice of India participate in the selection of the CBI director?” Dhankhar asked.

Dhankar also said that in his view, the `doctrine of basic structure' has a very "debatable jurisprudential basis".

Dhankar Questions Involvement of CJI in Executive Appointment

"I can appreciate that the statutory prescription took shape because the Executive of the day has yielded to a judicial verdict. But time has come to revisit. This surely does not merge with democracy. How can we involve the Chief Justice of India with any executive appointment?" he said.

Dhankar  questioned, “Can there be any legal rationale for it?”

Executive governance by judicial decree is a "Constitutional paradox that the largest democracy on the planet cannot afford any longer," Dhankar further said.

All institutions must operate within their constitutional bounds, he said.

"Governments are accountable to the legislature. And periodically accountable to the electorate. But if executive governance is arrogated or outsourced, enforceability of accountability will not be there," he said.

‘Antithetical to Constitutionalism’: Vice President Slams Intervention 

Any intervention in governance, from legislature or judiciary, is "antithetical to constitutionalism", the vice president added.

"Democracy thrives not on institutional isolation, but in coordinated autonomy. Indisputably, institutions contribute productively and optimally while working in their respective domains. Out of deference, I will not advert instances except to observe that executive governance by judiciary is being frequently noticed and discussed nearly in all quarters," Dhankar said as per the PTI.

Dhankhar described judicial review as a "good thing," highlighting its role in ensuring laws align with the Constitution. However, he also highlighted that when it comes to amending the Constitution, Parliament holds the ultimate authority.

"The judiciary's public presence must be primarily through judgments. Judgments speak for themselves....Any other mode of expression... undermines institutional dignity," he further said.

Dhankhar Calls for ‘Re-evaluation’ to Restore Judiciary

Dhankhar remarked, "I urge a re-evaluation of the current state of affairs to restore a groove that elevates our judiciary. Looking globally, we rarely see judges reflecting the way we do on all issues."

He then addressed the ongoing debate over the basic structure doctrine, which asserts that Parliament cannot amend certain fundamental features of the Indian Constitution.

Referring to a book by former Solicitor General Andhya Arjuna on the Kesavananda Bharati case, Dhankhar stated, "After reading the book, I believe the doctrine of the basic structure has a highly debatable, jurisprudential foundation." Reflecting on his time as Parliamentary Affairs Minister in 1990, he mentioned that the Supreme Court then had eight judges.

Dhankhar mentioned that, more often than not, all eight judges sat together on a bench hearing a case. He noted that when the Supreme Court had eight judges, Article 145(3) stipulated that constitutional interpretation required a bench of five or more judges. 

He emphasized that even with eight judges, the Constitution allowed the highest court to interpret the Constitution.

Article 145(3) of the Constitution of India states that at least five judges are required to sit on a case involving the interpretation of the Constitution.

(with agency inputs)