How can CJI be involved in executive appointments, asks Vice President

Questioning the involvement of the Chief Justice of India (CJI) in the process for appointment of the CBI director, Vice President Jagdeep Dhankhar on Friday said it was time to "revisit" the norms.

Interacting with faculty and students at National Judicial Academy in Bhopal, the Vice President expressed his deep concern over breach of the principles of separation of powers and noted that such a procedure was not in consonance with democracy.

According to Section 4A of the Delhi Special Police Establishment Act of 1946 introduced in 2013, the CBI director’s appointment is made by the Centre on recommendation of a three-member panel headed by the PM and comprising the Leader of Opposition in the Lok Sabha and the CJI or a Supreme Court judge nominated by him.

“To stir your minds, how can in a country like ours or in any democracy, by statutory prescription, the Chief Justice of India participate in the selection of the CBI director? Can there be any legal rationale for it? I can appreciate that the statutory prescription took shape because the Executive of the day has yielded to a judicial verdict. But time has come to revisit (it). This surely does not merge with democracy. How can we involve the Chief Justice of India with any executive appointment?” the Vice President wondered.

“Executive governance by judicial decree is a Constitutional paradox that the largest democracy on the planet cannot afford any longer. When institutions forget their bounds, democracy is remembered by the wounds this forgetfulness imparts. The Constitution envisions harmony, synergetic approach to be in sync, surely. A concert of chaos was never in the contemplation of the founding fathers of the Constitution. Constitutional consultation without institutional coordination is mere constitutional tokenism,” Dhankhar said.

Noting that “executive governance reflecting the will of the people is constitutionally sanctified,” he said, “Accountability is enforceable when executive roles are performed by elected government. Governments are accountable to legislature…and periodically accountable to the electorate.

“But if executive governance is arrogated or outsourced, enforceability of accountability will not be there. Exclusively, governance lies with the government…with utmost respect, any intervention from any source, in the country or outside, from legislature or judiciary, is antithetical to constitutionalism and certainly not in consonance with the fundamental premise of democracy,” the Vice President said.

“Jurisdictional respect and deference requires that these institutions operate within defined constitutional bounds while maintaining cooperative dialogue, keeping national interest ever in mind,” he emphasized.

Maintaining that the judiciary's public presence must be primarily through judgments, the Vice President said, “Judgments speak for themselves. Judgments carry weightage. And under the Constitution, if the judgment emanates from the highest court of the land, it’s binding... Any other mode of expression other than through judgments avoidably undermines institutional dignity. Again, with the total command that I have, I exercise restraint to assert. I seek revisitation of the present state of affairs so that we get back to the groove, a groove that can give sublimity to our judiciary.”