Calling Article 142 “Nuclear Missile” Extremely Problematic : Sibal On Vice President's Comments Against Judiciary

Today, Kapil Sibal, Senior Advocate and President of the Supreme Court Bar Association, addressed a press conference on the Vice President of India, Jagdeep Dhankhar's remarks that the Supreme Court was using Article 142 as a "nuclear missile" against democratic forces.Sibal said he is deeply saddened that a constitutional functionary is making such remarks. When I woke up this morning and read the Vice President's remarks in newspapers, I felt deeply saddened and shocked. If there is one institution even today which the people trust, it is the judicial institutions, be it the Supreme Court or the High Courts. It's truly concerning how some government officials respond to judicial decisions, when the verdict suits them, for instance, Article 370 abrogation or the Ram Janbhoomi judgment, they cite it as the Supreme Court's wisdom. But the moment a judgment doesn't align with their views, for instance, the recent Justice Pardiwala's judgment, they start levelling accusations.The Vice President recently took objection to the timelines set for the President to decide the Bills referred by the Governor in the Tamil Nadu Governor judgment. He went to the extent of saying that Article 142 of the Constitution has become a "nuclear missile" available to judges against democratic forces.VP Dhankhar had said :There is a directive to the President by a recent judgment. Where are we heading? What is happening in the country? 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.Addressing these remarks, Sibal said in a press conference that it does not suit a constitutional functionary to make such remarks.With all due respect to the Honourable Vice President, calling Article 142 a 'nuclear missile' is extremely problematic. How can you say this? Do you know Article 142 is the power conferred by the Constitution to the Supreme Court? It is not the right given by the Government. It is the Constitution that has given the right to do complete justice. Sibal went on to explain that the functions of the President and the Governor are dependent on the aid and advice of the Council of Ministers, and this is what the Constitution says.I want to tell this to the citizens of this country, the President of India is a titular head. The President performs functions as per the aid and advice of the Council of Ministers. A Governor of a State acts on the aid and advice of the Council of Ministers of the State. It is the Constitution which says, when the Bill is given to the Governor for his assent, he can return the Bill to the Legislative Assembly. But once the Legislative Assembly re-enacts the Bill, the Governor is bound to give his assent. It is what the Constitution says. He further said:The Governor has the right to reserve the Bill for the President's consideration, but it is the Union Cabinet that will aid and advice her on it. It is not the President's personal right to do whatever she wants, Dhankar Ji should be aware of it. He says, you are curtailing the powers of the President. Who is doing that?...This is in fact, an intrusion on the supremacy of the legislature. If the Parliament passes a Bill, can the President sit over it saying that she will not sign? If she does not sign, does someone have the right then [to tell her she cannot do that].Sibal added that there are continued attacks on the independence of the Judiciary. We must not attack or undermine our judicial institutions. If the executive starts attacking the judiciary, especially when he is the Minister and the Chairman of a House, then it seems that...Then the judiciary cannot defend itself. Polity of the country must come forward and defend the judiciary. We trust the judiciary doing the right thing, [in upholding justice and the Constitution]. The independence of the judiciary is fundamental to democracy in this country; without that all the rights are in danger as they already are.Addressing the 6th batch of Rajya Sabha interns, the Vice President said that as per Article 145(3), a substantial Constitutional issue must be decided by a bench with at least 5 judges. However, the decision against the President was given by a two-judge bench (Justices JB Pardiwala and R. Mahadevan). When the mandate of five 5-judges was prescribed, the strength of the Supreme Court was eight. Since the strength of the Supreme Court has now increased to 31, there is a need to amend Article 145(3) to raise the number of minimum judges in a Constitution Bench, the President opined.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......

Calling Article 142 “Nuclear Missile” Extremely Problematic : Sibal On Vice President's Comments Against Judiciary

Gursimran Kaur Bakshi

Kapil Sibal underlined that the Article 142 power was given to the Supreme Court by the Constitution.

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