#ConstitutionDay: CJI-to-be, JS Khehar J. replies to AG Mukul Rohatgi’s ‘Lakshman Rekha’ remarks

#ConstitutionDay: CJI-to-be, JS Khehar J. replies to AG Mukul Rohatgi’s ‘Lakshman Rekha’ remarks

Murali Krishnan

November 26, the day the Indian Constitution was adopted in the year 1949, was celebrated yesterday as the Constitution Day. This is the second official Constitution Day after the Union government declared November 26 as Constitution Day last year by way of a gazette notification. Till last year, the celebrations were confined to the legal fraternity, which had been celebrating this day as Law Day since 1979.

Yesterday, the Supreme Court of India not only celebrated the occasion with great pomp but also released a book ‘Courts of India: Past to Present’ outlining the history of the country’s courts.

The celebrations, held at at the Manekshaw Centre in Delhi, saw the attendance of legal luminaries, sitting and former judges, and the Union Law Minister, Ravi Shankar Prasad.

The event was marked by the first Constitution Day lecture which was delivered by the former Chief Justice of India MN Venkatachaliah. Interestingly, the ongoing tussle between the judiciary and the executive spilled over into the function with the Attorney General Mukul Rohatgi and Justice JS Khehar making the case for Centre and the Supreme Court respectively.

Rohatgi started his speech by paying tribute to Dr. BR Ambedkar. He then spoke about the Constitution and its role. Terming it as quasi-federal, he said that it played an important role in bringing people with different languages, food habits and customs together.

“Our Constitution is quasi-federal, and it is strongly tilted in favour of the Centre. But for it, we might have been in chaos”, he said.

He then spoke about the separation of powers between the organs of the State.

“Constitution lays down the Lakshman Rekha between the organs of the State. Judiciary also has a lakshman rekha”, he said in an apparent dig at the Supreme Court.

He stated the equilibrium had initially shifted towards the Executive during the emergency, and later shifted the other way (in favour of judiciary) as a reaction to the executive hegemony. Stating that the equilibrium envisaged by the Constitution needs to be restored, he urged all organs of the State to remain within the spheres of their powers.

The remarks did not go unnoticed.

And what was interesting was that it was Justice JS Khehar, who will be the next Chief Justice of India, who chose to answer Rohatgi.

Justice Khehar began on a very strong note as he clubbed together the 39th Amendment and the amendments that introduced the NJAC, both of which were struck down by the Supreme Court. In a veiled reference to the NJAC case, he called it “certain recent Constitutional amendments which had elements of interference with judicial independence”.

“The Supreme Court on many occasions has struck down many Constitutional amendments and ordinary laws made by the legislature. Whether it was the 39th Constitutional Amendment which tried to disintegrate the concept of rule of law, or certain recent Constitutional amendments, which had elements of interference with judicial independence, the Supreme Court has consistently tried to uphold the basic ethos of Constitutional philosophy.”

He then stated that he would like to respond to the observations of the Attorney General.

“May I very respectfully respond to the observations of the learned Attorney General. The judiciary is mandated to shield all citizens against discrimination and abuse of State power… Liberty, equality and dignity of citizens have subsisted and flourished in India due to the pro-active role played by the Indian judiciary. Rule of Law and Constitutionalism prevails due to the sustenance and backing from an independent Bar, which has been courageous in promoting the cause of unprivileged and disadvantaged….”, said Justice Khehar.

Chief Justice TS Thakur will be retiring on January 3 next year, and this response by his successor to the Central government’s top law officer is significant. It points towards a continuing tussle between the Supreme Court and the Central government over various issues including judicial appointments that is unlikely to end anytime soon.

However, Union Law Minister Ravi Shankar Prasad, in his address, assured that the government remains committed to individual and media freedom while also stating that it was the Supreme Court which failed the people during the Emergency.

“This govt has leaders who fought for individual and media freedom during emergency, and we will remain committed to those freedoms. When people were fighting emergency, many High Courts entertained petitions against illegal detention, but it was the Supreme Court which failed us”, he said. 

At the event, the Supreme Court also felicitated Senior Advocates and law professors for their contributions to law. Those felicitated included Senior Advocates K Parasaran, Soli Sorabjee, Ashok Desai, Ram Jethmalani, KK Venugopal, Fali Nariman, Anil B Divan, TR Andhyarujina and PP Rao, and Professors NR Madhava Menon, and Upendra Baxi.

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