Parliament's Power To Enact Law Is Subject To Court's Scrutiny : Supreme Court Clarifies Amid Face-off With Centre Over NJAC Verdict

Update: 2022-12-08 14:11 GMT

On Thursday, while passing order in a plea against Centre sitting over collegium recommendations, the Supreme Court categorically recorded that the scheme of the Constitution of India is such that though it contemplates that the law-making power is with the Parliament, the same is subject to the scrutiny of the Judiciary.

"We in the end say only this that the scheme of the Constitution stipulates the Court to be the final arbiter on the position of law. The power to enact law is with the Parliament. However, that power is subject to the scrutiny of the Courts. It is necessary that all follow the law as laid down by this Court else otherwise sections of society may decide to follow their own course even though the law is laid down"

The above quoted portion seems to have found place in the order upon the submission of the Senior Advocate, Mr. Vikas Singh that 'some people holding constitutional posts are saying the Supreme Court does not have power of judicial review'. The Senior Advocate indicated that judicial review is 'basic structure' of the Constitution and it was 'little upsetting' that such a comment was indeed made by someone holding a Constitutional post.

At that moment, Justice Kaul commented, "Tomorrow people will say basic structure is also not a part of the Constitution."

Imploring the Bench to issue mandamus or contempt notice to the Union Government for acting in derogation of the law laid down by the Apex court, Mr. Singh submitted,

"The law as laid down cannot be flouted with impunity with all the street shows...."

The Senior Advocate seemed to be referring to the recent critical comments made by the Vice President of India, Jagdeep Dhankhar about the judgment of the Apex Court that had struck down the Constitution Amendment passed to bring about National Judicial Appointments Commission (NJAC)

Recently, in his very first address as the Chairperson of the Rajya Sabha, Vice President of India Jagdeep Dhankhar made critical comments about the said judgment. Almost a week ago, while delivering his speech as the Chief Guest at the 8th L.M. Singhvi Memorial Lecture organised by O.P. Jindal Global University, Vice President has been critical about the incursion of one organ of the government into the exclusive preserves of the others. On the issue of NJAC, the Vice President had specially asked whether the ordainment of the people that was converted into a constitutional provision through a legitimised mechanism, namely, the legislature, and in a most sanctified manner, that is after the issue was debated in extenso and passed by both the houses, could be undone by the judiciary. He had elucidated -

"As a matter of record, the entire Lok Sabha voted unanimously for the constitutional amendment. There was no abstention, no dissension. In Rajya Sabha, there was a single abstention, but no opposition. So, the ordainment of the people was converted into a constitutional provision. The power of the people came to be reflected in the most certified mechanism."

The Vice President was perturbed that the will of the people manifested through the decision of the Parliament to bring about NJAC by way of a Constitution Amendment Act was overturned by the Judiciary. He was of the opinion that it was unprecedented that a Constitutional Amendment Act inserted by the Parliament was struck down by the Judiciary.

"That power was undone. The world does not know of any such instance".

Read other reports about today's hearing :

'Collegium System Is The Law Of The Land, Must Be Followed' : Supreme Court Tells Centre; Asks AG To Advise Govt Of The Legal Position

'Comments Against Collegium Not Well Taken' : Supreme Court Asks AG To Advise Govt Functionaries To Exercise Control

"MoP Issue Is Settled, Govt. Can Make Suggestions To Improve MoP, But Cannot Re-agitate It: Supreme Court To AG In Judges Appointment Matter

[Case Title: Advocates Association Bengaluru v. Barun Mitra And Anr. Contempt Petition (C) No. 867/2021 in TP(C) No. 2419/2019]

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