Days after a landmark Supreme Court judgment that effectively set a deadline for the President and Governors to clear Bills, Vice-President Jagdeep Dhankhar has used strong words for the judiciary, saying that we cannot have a situation where courts direct the President. He also said that Article 142 of the Constitution, which gives the Supreme Court special powers, “has become a nuclear missile against democratic forces, available to the judiciary 24×7”.

Addressing the 6th batch of Rajya Sabha interns, the Vice-President spoke about the massive cash haul from the home of Delhi High Court judge Yashwant Varma. “An event happened on the night of 14th and 15th of March in New Delhi, at the residence of a judge. For seven days, no one knew about it. We have to ask questions to ourselves. Is the delay explainable? Condonable? Does it not raise certain fundamental questions? In any ordinary situation, and ordinary situations define rule of law – things would have been different. It was only on 21st March, disclosed by a newspaper, that people of the country were shocked as never before.

“Thereafter, fortunately, in public domain, we had input from authoritative source, the Supreme Court of India. And the input indicated culpability. Input did not lead to doubt that something was amiss. Something required to be investigated. Now the nation waits with bated breath. The nation is restive because one of our institutions, to which people have looked up always with highest respect and deference, was put in the dock,” he said.

The Vice-President said no FIR has been filed against the judge after the cash haul. “An FIR in this country can be registered against anyone, any Constitutional functionary, including the one before you. One has only to activate the rule of law. No permission is required. But if it is Judges, their category, FIR cannot be straightaway registered. It has to be approved by the concerned in the Judiciary, but that is not given in the Constitution,” he said.

“The Constitution of India has accorded immunity from prosecution only to the Honourable President and the Honourable Governors. So how come a category beyond law has secured this immunity? Because the ill-effects of this are being felt in the mind of one and all. Every Indian, young and old, is deeply concerned. If the event had taken place at his house, the speed would have been an electronic rocket. Now it is not even a cattle cart,” said Mr Dhankhar, a senior lawyer who has practised in the Rajasthan High Court and the Supreme Court.  

Mr Dhankhar said any investigation is the domain of the Executive and questioned why a committee of three judges was examining the cash haul case. “Is this committee of three judges having any sanction under any law emanating from parliament? No. And what can the committee do? Committee can at the most make a recommendation. Recommendation to whom? And for what? The kind of mechanism we have for judges, the only action finally that can be taken is by the Parliament. When proceedings of removal are initiated, a month has passed, more than that, and investigation requires speed, expedition, preservation of incriminating material. As a citizen of the country and holding position which I do, I am concerned. Are we not diluting rule of law?” he asked.

He said over a month has passed since the cash haul. “It is now over a month. Even if it is a can of worms. Even if there are skeletons in the cupboard, time to blow up the can. Time for its lid to go out. And time for the cupboard to collapse. Let the worms and skeletons be in the public domain so that cleansing takes place,” he said. 

The Vice-President’s strong remarks against the judiciary come on the heels of a Supreme Court order in a Tamil Nadu case, in which it ruled that Governor RN Ravi’s decision to withhold assent to 10 Bills was “illegal” and “arbitrary”. The bench of Justice JB Pardiwala and Justice R Mahadevan effectively set a three-month deadline for Presidential and gubernatorial assent to Bills passed by the legislature for the second time. The court also said that the President’s functions are amenable to judicial review under Article 201 of the Constitution.

The Supreme Court also said in the judgment that only courts have the prerogative to provide recommendations regarding the constitutionality of a Bill and the Executive is supposed to exercise restraint in such matters. The top court underlined that it would be prudent for the President to refer Bills with constitutional questions to the Supreme Court.

Mr Dhankhar said the President of India is a very elevated position and takes the oath to preserve, protect and defend the Constitution. “There is a directive to the President by a recent judgment. Where are we heading? What is happening in the country? We have to be extremely sensitive. It is not a question of someone filing a review or not. We never bargained for democracy for this day. President being called upon to decide in a time-bound manner, and if not, becomes law. So we have judges who will legislate, who will perform executive functions, who will act as super-parliament, and absolutely have no accountability because law of the land does not apply to them,” he said.

“We cannot have a situation where you direct the President of India and on what basis? The only right you have under the Constitution is to interpret the Constitution under Article 145(3). There, it has to be five judges or more… Article 142, Article 142 has become a nuclear missile against Democratic forces, available to judiciary 24 x 7”, he said about the provision granting special powers to Supreme Court.