Work towards systemic reform

(MainsGS2:Separation of powers between various organs dispute redressal mechanisms and institutions.)

Context:

• Recently, Law Minister Kiren Rijiju has written to Chief Justice of India (CJI) D.Y. Chandrachud suggested a nominee of the Union government in the Supreme Court Collegium and a State representative in each of the High Court collegiums.

Search-and-evaluation committee:

• Law minister sought the formation of a search-and-evaluation committee, which will have government representatives, to suggest names to the collegiums for appointment as judges in constitutional courts.
• Further the Law Minister’s letter found fault with a Supreme Court judgment in 2021 which had given the government maximum 18 weeks to process the names forwarded to the Law Ministry by the High Courts and send them to the Supreme Court Collegium for final approval.
• While few would disagree that the Collegium system needs reform but experts believe that carrying a campaign against the judiciary in the name of seeking reform in the appointments process is questionable.

Ultimate power lies in legislature:

• Supreme Court of India delivered its verdict in Kesavananda Bharati vs State of Kerala holding that Parliament’s power to amend the Constitution was not plenary, that any change that damages the document’s basic structure would be declared void, the Court, it was understood, had helped preserve the essence of our republic.
• But last week, India’s Vice-President Jagdeep Dhankhar questioned the ruling’s correctness and claimed that the striking down of the NJAC had no parallels in democratic history as a “duly legitimised constitutional prescription,”  “has been judicially undone.” 
• He also said that “in a democratic society, the basic of any basic structure is supremacy of people, sovereignty of parliament…The ultimate power is with the legislature. Legislature also decides who will be there in other institutions. In such a situation, all institutions must confine themselves to their domains. One must not make incursion in the domain of others.”

Intelligible moral foundation:

• The Court in Minerva Mills vs Union of India (1980) said that “Parliament too is a creature of the Constitution”. Therefore, it can only have such powers that are expressly vested on it. If those powers are seen as unlimited, Parliament, the Court found, “would cease to be an authority under the Constitution”; 
• It would instead “become supreme over it, because it would have power to alter the entire Constitution including its basic structure”. 
• In other words, the principle that Parliament is proscribed from changing the Constitution’s essential features is rooted in the knowledge that the Constitution, as originally adopted, was built on an intelligible moral foundation.
• On this construction, it is possible to see the basic structure doctrine as implicit on a reading of the Constitution as a whole.

Conclusion:

• There is no doubt that on occasion, the Court’s interpretation of the features OF basic structure has suffered from incoherence but to suggest that the basic structure doctrine is by itself unsanctioned is to place the Constitution at the legislature’s whim.
• Thus the principle of check and balances shall be ensured while maintaining the doctrine of separation of power so that functional democracy will prevail in its true sense.