Jagdeep Dhankar’s Critique and the Constitutional Crossroads India Faces

“Constitutions are intended to preserve practical and substantial rights, not to maintain theories.” - Justice Oliver Wendell Holmes Jr in DAVIS v. MILLS (1904)India does not follow a strict separation of powers in its Constitution. Except for Article 50, which says the judiciary should be separate from the executive, there is no clear rule dividing powers between the branches of government. The Constitution of India allows overlap. It does not give legislative or judicial power to any specific organ in a fixed way.However, despite this flexibility, each branch has its own main role and one is not supposed to take over another’s job. During the Constituent Assembly debates, Kengal Hanumanthaiah disagreed with KT Shah’s proposal for a presidential system which brought along with itself a formulation of a strictly defined separation of power.Hanumanthaiah said the Constitution supports a parliamentary system, which fits India better. He believed full separation would lead to clashes between the three branches, which would hurt the country. He said it is better to aim for balance and not conflict. Judges, Politics, and Bias: Is the Indian Judiciary Truly Independent?Discussions on separation of power is often centred around the influence of executive on the judiciary. But there does exist a theme within this doctrine, where concerns arise from situations where a judge starts laying the law, instead of interpreting it. This is referred to as judicial activism and Upendra Baxi has been writing about judicial activism since the early 1980s. In his book Courage, Craft and Contention: The Indian Supreme Court in the Eighties, he moved past the usual debate of whether judges make law or just interpret it. He said it was obvious that appellate judges do make law. He was not interested in arguing whether they should, for he already had his answer. Instead, he asked what kind of law judges make, under what limits and with what intended or unintended outcomes. But when examining the meaning of “judicial activism”, he argued that there is no objective way to label a decision as an activist.People judge judges based on their own values and politics. Sometimes, a judge is called an activist even if they do not see themselves that way.Nonetheless, the judiciary’s job is to make sure the government follows the Constitution. That is why judicial review matters. And it has its limits. Judges cannot turn personal views into law. It is not the court’s job to decide if a law or policy is smart or useful, only if it is legal and constitutional. Courts are not meant to replace the government’s judgment with their own. If people think a law is bad, they should vote to change it. That is how democracy works. If courts judged policy choices, lawmakers would have to guess what future judges might approve. The government must have space to act within the law. Progress needs freedom to make decisions, even risky ones. But that freedom ends where the Constitution says so. Judges must stick to that limit and not their own sense of what is best.In light of this preface, Vice President Jagdeep Dhankhar called Article 142 a “nuclear missile against democratic forces” and said the judiciary is stepping into the roles of the legislature and executive. He was reacting to the Supreme Court ruling in State of Tamil Nadu vs Governor of Tamil Nadu.To sum it up briefly, the case dealt with the Tamil Nadu Governor holding back 10 bills passed by the state assembly without giving reasons or sending them back.When the assembly passed them again, the Governor sent them to the President instead. The Supreme Court held that this went against Article 200, which allows the Governor to either assent, return or reserve a bill; but not delay it forever. Using Article 142, the Court deemed the concerning bills to have been approved. The Vice President questioned the legal basis of this move and said the Court was acting like a “super parliament” that was overstepping its role and ignoring the separation of powers. He claimed the judiciary is weakening Parliament’s authority. This has restarted a debate on how power is shared between the branches of government.Judiciary at a Crossroads: Can NJAC and Judicial Independence Coexist?Such comments are not new. But the tone and timing made them more controversial than usual. Some see this as another sign of worsening political discourse. Some say the Vice President’s comments mark a new low in Indian politics. The remarks show growing friction between the government and the judiciary. This can hurt public trust in the courts. The idea that the judiciary is overstepping or that judicial review is not important is also troubling. It weakens the balance of power that keeps democracy in check. In any democracy, debate is fine. No institution is above it. But when leaders start questioning the core of judicial independence, it is a serious issue. India’s system is built on the idea that Parliament makes laws and the courts interpret them. The Supreme Court is supposed to protect the Constitution and citizens’ rights.It often steps in when the government crosses legal limits or threatens basic rights. But the Vice President thinks courts are going too far. He believes Parliament, since it is elected by the people, should have the final say. This raises serious questions: who decides when a law goes against the Constitution? And, where is the line between protecting rights and keeping elected power in check? These are not easy questions. But how they are handled and deliberated upon, would shape the future of India’s democracy.(Sourabh Roy is a Research Fellow at the Karnataka team of Vidhi Centre for Legal Policy. This is an opinion piece, and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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Dhankar’s Remark Reveals India's Constitutional Crossroads: Who Has Final Word?

Progress needs freedom to make decisions, even risky ones. But that freedom ends where the Constitution says so.

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Topics: Indian Judiciary Democracy Judicial Activism