Source: Government of India
Posted On: 15 FEB 2025 2:41PM by PIB Delhi
Distinguished audience, this is my maiden visit to this prestigious university. While I hold the office of the Vice-President of the country, and by that virtue I happen to be ex-officio chairman of the Council of States, commonly referred to as the Rajya Sabha.
My recent public life started in 2019, when the honourable President on 20th of July signed a warrant appointing me Governor, State of West Bengal. It was an act of providence, because that happened to be the birthday of my wife. Another providential convergence, it was 50th anniversary of Neil Armstrong’s landing on the moon but for me, it was painful, because for three decades as a Senior Advocate, and for four decades as an advocate, I was with the jealous mistress, the legal profession.
The jealous mistress left me, and my wife got liberated so my active connection with the institution was virtual, not physical. But I can assure anyone who is listening to me, I jealously pondered the jealous mistress. And I thoroughly relished being an advocate for about ten and a half years, and thereafter senior advocate for three decades.
Given this background, I will not fail in availing an opportunity on this platform to reflect on issues that are dominating discourse at the present, and the largest democracy on the planet, the oldest, the most vibrant, and home to one-sixth of humanity. I would reflect on constitutional institutions that define democracy, that is, legislature, judiciary, executive but before that, let me advert, democracy has been evolved and defined by two words, One, expression. You must have right to express. If that right is compromised, throttled, or diluted, democracy gets thinner and thinner and thinner.
It is your right of expression that makes you the most important factor in the democracy, the stakeholder. One facet of expression is right to vote. But more important is to express your views, your point of view. You participate in governance, administration, by having a voice of expression. This expression is not standalone, this expression requires dialogue. Expression without dialogue means my way or no way.
Dialogue is nothing but reflection, either approval of your expression or the other point of view. My own experience says that in life, the other point of view is not only important but more often than not the correct point of view. But lending consideration to the other point of view is quintessential for humanity’s development, because consideration does not mean you concede a point. Consideration means you respect all points of view, and you can find a way out.
If the two points cannot be reconciled, herein comes the human spirit of cooperation, convergence, coordination. A difference of opinion should not result in confrontation. A difference of opinion must ignite an urge to converge to find a common ground. Sometimes yielding is a better part of discretion.
In this backdrop, let me focus on the state of the nation. I say so because I had the occasion to see the state of the nation in 1989 when I was elected to the Parliament for the first time. Also when I became a Union Minister then and I had the occasion to see the state of the nation now, also last decade or so.
In last few years, as a consequence of affirmative governance, innovative policies, the nation is filled with an environment of hope and possibility that can be seen all around. It is all prevailing. We have witnessed economic upsurge that is being accoladed by global institutions like the International Monetary Fund or the World Bank.
Economic growth of this country amongst large economies is outstanding because we are at the peak. This economic growth has fuelled a phenomenal infrastructure growth which everyone has come across. Unimaginable, beyond dreams, people-centric policies have led to ground realisation of facilities that are very wholesome to the people at large. Every house with electric connection, with toilet, with cooking gas availability, with banking inclusion. Ongoing schemes like pipe water, roof top solar schemes. There has been handholding of those who are in the last row by way of making available resources to them including affordable housing or Pradhan Mantri Awas Yojana.
What has impressed our young people, and the public at large is deep digital penetration. The technological accessibility and adaptation have been massive, stunning the world. This has enhanced both easy service delivery and ease of governance, ease of business. Once there was a system when because of lack of transparency, lack of accountability, power corridors were infested with agents known as liaison. They corrupted the system; technology has neutralised that.
Therefore, to cut it short, no country in the world has grown so fast as Bharat in last few years. Now, this development that the people have tasted has converted our Bharat at the moment as the most aspirational Nation in the world and imagine, a one-sixth of humanity is in high aspirational gear. There are chances of people getting restive or getting in restlessness but if unleashed, this nuclear energy can take us to great heights and that is a challenge before institutions that define our democracy. This calls for optimal performance by pillars of democracy, the legislature, the judiciary and the executive.
Friends, time constraint permits me only suggestive focus and for the kind of intelligence that is there in the audience, a suggestion or even a subtle suggestion will make my point.
India’s democratic framework did not start in 1947. We have several millennia of rich jurisprudence and that demands careful preservation of institutional autonomy and mutual respect amongst its pillars. Jurisdictional respect and deference require that these institutions operate within defined constitutional bounds while maintaining cooperative dialogue, keeping national interest ever in mind. The principle of separation of powers, necessitates clear demarcation of responsibilities to prevent institutional overreach.
Legislatures to begin with because I am directly connected with this in my position as Chairman of the Council of States. Our Parliament, once a theatre of profound dialogue and debate, has yielded to disruption and disturbance. You all are aware.
The deliberative dignity envisioned by our Constitution makers stands compromised today with partisan interpretations even on matters of National Security prevailing. How can we ever sacrifice Nation-First principle! How can we relegate national interest to any other interest!
Friends, Parliament’s transformation from deliberative dignity to disruptive discord virtually threatens democratic essence. Let me remind you of the Constituent Assembly that, painstakingly, over 18 sessions, spread over little less than three years, dealt with issues that were highly contentious. They were divisive, but there were no disruptions. Tough issues and tough terrain were negotiated with the spirit to find solutions through dialogue, debate, consensus, give and take.
Through dialogue of the highest order, these institutions now must achieve, in contemporary times, synergy in serving greater national causes. While doing so, they can maintain their distinct identities. It is concerning because I see day in and day out.
Friends, I was inviting your attention that the high standards set by the Constituent Assembly are today compromised. How can we allow in temples of democracy disturbance and disruption? That means the public representatives are not mindful of their constitutional ordinance. How can national interest be overtaken by partisan concerns? How can confrontational stance, and often of irretrievable nature, show exit door to consensus? I urge all through this platform to be cognisant of alarmingly potential and dangers inherent in such kind of derailments undermining the sanctity of parliamentary institutions. To sacrifice such institutions is to taint and tarnish democracy and this indicates lack of commitment to national development. Time for us to be in togetherness, in tandem, to get a reprieve from this malady. I said, I am in a diagnostic clinic of the highest order.
Coming to Judiciary, being a member of the bar, I have association. I am therefore a foot soldier. Lawyers are extension of the Bench. They work in togetherness with mutual respect and admiration. Judgements are as good as the assistance of the Bench. It is one of the factors.
Like legislature, the judicial architecture also faces critical structural changes. When I became a parliamentary affairs minister in 1990, I went to that room from where the Supreme Court operated. For many years it operated from the Parliament building. There were eight judges, they were not sitting on odd days because there was no work. More often than not, all the eight judges sat together. Gradually we know the situation that is now, and rightly reflected by Justice Bose, but I invite to steer your minds on one aspect. When the strength of the Supreme Court was eight judges, under Article 145(3) there was a stipulation that interpretation of the Constitution will be by a bench of five judges or more.
Please note, when the strength was eight, it was five and Constitution allows the highest court of the land to interpret the Constitution. You interpret what is interpretable. In the guise of interpretation, there can be no arrogation of authority. That being the situation, without reflecting more, for fear of being understood or misunderstood, understood in one pretext or misunderstood in another pretext, we need to urgently focus to ensure that the essence and sprit which the founding fathers had in mind under Article 145(3) about interpretation of the Constitution must be respected. If I analyse arithmetically, they were very sure interpretation will be by a majority of judges because the strength then was eight. That five stands as it is and the number is more than fourfold.
I seek to recall observations made in speech imparted by a former Chief Justice of India, Shri Gogoi, as nominated Member of Rajya Sabha, nominated by the Honourable President of India in the distinguished category of 12. The former Chief Justice of India as sitting member of Rajya Sabha in the nominated category which is elevated, reflected, I seek to quote him, “The law may not be to be my liking but that does not make it arbitrary. Does it violate the basic feature of the Constitution? I have to say something about the basic structure. There is a book by former Solicitor-General of India Andhyarujina on the Kesavananda Bharati case. Having read the book, my view is that the doctrine of the basic structure of the Constitution has a debatable, very debatable jurisprudential basis. I would not say anything more than this.”
The basic structure doctrine debate reflects our institutional tendency to question foundations while ignoring structural cracks.
Slightly digressing, we are a country where iconic status is accorded to parameters that are baffling. We don’t scrutinise or probe and that reputation becomes a serious cause of concern because we label someone a jurist without proper analysis. Time for us to give it up. And as much as I have reflected on occasions, we can’t allow others to calibrate us.
Another facet, and I try to make it as noticeable as possible, the Judiciary’s public presence must be primarily through judgments. Judgments speak for themselves. Judgments carry weightage and under the Constitution, if the judgement emanates from the highest court of the land, it has binding presidential value. Any other mode of expression other than through judgments avoidably undermines institutional dignity. Again, with the total command that I have, I exercise restraint to assert I seek revisitation of the present state of affairs, so that we get back to the groove, a groove that can give sublimity to our judiciary.
When we look around the globe, we never find judges reflecting the way we see here on all issues. I must indicate there is a soothing development. Of late, the storm is withering, calm is prevailing. I hope it continues because we really had a very stormy session echoed in the country, outside the country, on issues, and on occasion so personalised through public domain reflections that sanctity of the highest court was compromised when a judgement of the Supreme Court was called, that it is final because it is the last one. Someday, my view will prevail.
Sir, I have known you from a distance. In the High Court at Jharkhand, even if I did not have a case in your court, I used to sit in the last row. There is an aura of the court. Judgments are read, and they will be read by generations that come. When institutions compete instead of complement, democracy pays the price. For Constitutional democracy to survive, institutions must learn to differ without disrupting. And dissent without destroying. Democracy thrives not on institutional isolation, but in coordinated autonomy. Indisputably, institutions contribute productively and optimally while working in their respective domains. Out of difference, I will not advert to instances, except observe that executive governance by judiciary is being frequently noticed and discussed nearly in all quarters.
We are a sovereign nation, our sovereignty resides in the people. The constitution given by the people makes this sovereignty inviolable. Executive governance reflecting the will of the people is constitutionally sanctified. Accountability is enforceable when executive roles are performed by elected government. Governments are accountable to legislature and periodically accountable to the electorate but if executive governance is arrogated or outsourced, enforceability of accountability will not be there.
Exclusively, governance lies with the government. Sir, with utmost respect, from any other source in the country or outside, from legislature or judiciary, it is antithetical to Constitutionalism and certainly not in consonance with fundamental premise of democracy. Sir, executive governance by judicial decree is a Constitutional paradox that largest democracy on the planet cannot afford any longer. When institutions forget their bounds, democracy is remembered by the wounds this forgetfulness imparts. The constitution envisions harmony, synergetic approach, to be in sync, surely, a concert of chaos was never in the contemplation of the founding fathers of the Constitution. Constitutional consultation without institutional coordination is mere Constitutional tokenism.
Sir, let me give one illustration, when two words were interpreted for the first time, consultation and concurrence, and it was indicated that consultation will be concurrence by a judicial directive. Those who engaged in this interpretation conveniently did not avert to article 370 where both the words are used. Article 370 of the Constitution, which is no longer therefortunately, because it was the only temporary article of the Constitution, uses both, consultation and concurrence. How can the two words forget the lexical premise of it used in the constitution? I have distinguished people on the academic side be so taken. I have often said, when it comes to gender discrimination, if it is obvious, is tolerable but when gender discrimination is subtle, it is very painful. That has to be remedied. Similarly, the line between judicial activism and overreach is thin, but the impact on democracy is thick.
Sir, you are aware of a case decided, if I’m not mistaken, by Justice Vivian Bose. The line between may be true and must be true is very thin. It has to be negotiated by unimpeachable evidence of great veracity. Similarly, the situation when we come to revenue matters, tax planning, tax evasion, tax avoidance. The line is very thin. Justice Desai, while sitting with Justice Krishna Iyer, had said so and it says, if you are a good chartered accountant, plan. If you are a powerful man, it is avoidance. If you are vulnerable, then you know, wrath of love.
Similarly, I say, the line is thin, but this thin line is between democracy and despotism. To stir your minds, how can in a country like ours, or in any democracy, by statutory prescription, Chief Justice of India participates in the selection of the CBI director. Can there be any legal rationale for it? I can appreciate that a statutory prescription took shape because executive of the day yielded to a judicial verdict. But time has come to revisit. This surely does not merge with democracy. How can we involve Chief Justice of India with any executive appointment?
I have no doubt the nation is on its way to emerging as a developed nation.
For the first time, Bharat is not a nation with a potential. Potential is getting harnessed and exploited day in and day out. Viksit Bharat is not our dream. It is a definitive object we are bound to achieve but this requires earnest, coordinated functioning of the three vital institutions. I therefore, strongly suggest evolution of a structured dialogue mechanism must be there for inter-institutional coordination. Thereby, national interest will be served. Constitutional consultationsmust have a protocol for the same.
Sir, the blurring line again between judicial review as you are aware was evolved in the American Supreme Court long back. It’s very blurred, Judicial review and judicial overreach. Let me invite attention of all of you. In the Supreme Court of America, before 1869 had judges varying in number, six, eight, but strength was in single digit. In 1869, they decided eight judges. Today, there are eight judges, all the eight judges sit together with quorum being six. They have no pendency.
It is this place where you can examine that the jurisdiction of the American Supreme Court is nearly the same as our jurisdiction. Is there a matter in judicial domain which lies exclusively with the magistrate or a district judge or the High Court not being dealt by the Supreme Court? The structure of the Constitution is very categorical. Judicial governance is left to the High Courts in their areas. There’s a constitutional prescription, all subordinate courts and tribunals in the jurisdictional area of the High Court are subject to the control of the High Court but there is no similar control of the Supreme Court of either the High Courts or subordinate judiciary.
When I analyse the disposals, Sir, to play and fudge it with figures, it’s very dangerous because we are monetising ignorance of the people. If informed minds get into the habit of exploiting the ignorance of others, nothing can be more dangerous than this. I have examined the recent two volumes sent by the Supreme Court registry. The disposal has to be two-faceted.
Dismissal at the threshold of Article 136 that is largely their disposal. The disposal after leave is granted or otherwise the statutory appeals are there is the only real disposal. And how can there be disposal when in a country unknown to the other dispensations in the world we have a PIL court, we have Suo moto cognizance. Day in and day out we are appointing committees, SITs, groups. I wouldn’t say more, except executive decision-making. The autonomy is not autonomy. The autonomy comes with a great sense of accountability and that accountability is enforceable rigorously and on occasions in a stringent way by several agencies that virtually are at the neck of the bureaucrats or politicians deciding it. Let us preserve it.
Parliamentary supremacy in law-making I concede is subject to judicial review. It’s a good thing, the judicial review has to be on the anvil that the legislation is in conformity with the Constitution but when it comes to making an amendment in the Indian Constitution, the ultimate repository, the ultimate power, the ultimate authority and the last authority is only the Indian Parliament. There can be no intervention from any quarter whatsoever on any pretext whatsoever because will of the people is reflected in a representative manner on the most sanctified platform through elections.
The world and the nation face existential challenges today. Our institutions cannot afford to be standalone. Our institutions cannot believe as being a repository of an authority dictating others how to conduct their affairs. Neither the legislature can do it nor any other institution, climate change means a global existential challenge. Within our country we have challenges of illegal migrants, demographic dislocations. These are not small issues, conversion through allurements. These issues must engage our attention. We have to find solutions to the problems and neutralise these menacing forces that have sinister design and are activating perniciously anti-national narratives.
I conclude that time has come for each one of us individually and for each institution collectively to introspect, reform and return to the Constitutional groove as envisioned by our founding fathers, ensuring democracy’s sustainable growth through proper jurisdictional deference and coordination.
I am grateful for the patient hearings, and I am sure this institution will emerge as a think tank to discuss issues because there is no other platform to sum up. I have reflected only on tip of the iceberg.
Thank you so much.
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JK
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