Constitution Day: Judiciary, executive debate limits of power

Attorney general says Constitution sets in place limits on the powers of the executive, legislature and the judiciary; SC judge Khehar says court to shield people from the excesses of powers

A file photo of Supreme Court. Photo: Mint
A file photo of Supreme Court. Photo: Mint

New Delhi: The judiciary and the executive on Saturday debated on aspects of judicial legislation and activism, on a day set aside to remember principles of the Constitution like separation of powers.

Attorney general Mukul Rohatgi opened the debate by saying that the Constitution sets in place limits, or lakshman rekha, on the powers of the executive, legislature and the judiciary. “The judiciary must realize that it also has a lakshman rekha. Greater the power, greater the need for circumspection,” he said.

Supreme Court judge and next in line to be chief justice, J.S. Khehar, however, said that the Constitution mandated the apex court to shield all people, citizens or non-citizens, from the excesses of powers.

“If changes like the 39th Constitutional amendment or certain other constitutional amendments which impact the independence of the judiciary, the court will strike them down. This is the lakshman rekha. Supreme Court has always tried to maintain the ethos of the constitution,” Khehar said.

The 39th Constitutional amendment sought to make the election of the prime minister and the speaker beyond the scope of the court’s jurisdiction.

The recent constitutional amendment referred to by Khehar was the one where a six-member panel to appoint judges was introduced by the Bharatiya Janata Party government, in a bid to reform the process of judicial appointments. The Supreme Court, on 16 October 2015, struck this down as being unconstitutional.

Union law minister Ravi Shankar Prasad lauded the “great innovation” by the Supreme Court to include within the ambit of the right to life the need for law to be just, fair and reasonable. “Courts must set aside (bad) laws, but governance is with the elected representatives,” he cautioned, adding that, “during the Emergency, the high courts showed great courage by accepting writ petitions, but the Supreme Court failed us.”

They were speaking at the Constitution Day celebrations organized by the Supreme Court.

In related news, the judiciary and executive also hit out at each other over the issue of judicial appointments earlier in the day.

Speaking at another event, chief justice of India T.S. Thakur remarked that 500 posts of judges were lying vacant and he hoped that the government would intervene to “end this crisis”.

Law minister Prasad, who was also at the event, rebutted by saying that government has made 120 appointments this year which was the second highest since 1990.

PTI contributed to this report.

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