"We had turbulent times in the judiciary recently. But the good thing — and soothing — is that a big change has taken place. We are seeing good times now for the judiciary. The present Chief Justice and his immediate predecessor gave us a new era of accountability and transparency. They are getting things back on the rails. But the earlier two years were very disturbing, very challenging. The normal system was not normal. Thoughtlessly, several steps were taken — it will take a while to undo them. Because it is very fundamental that institutions function with optimal performance”, he added
“The judiciary in our country commands immense trust, immense respect of the people. People believe in the judiciary like no other institution. If their faith is eroded — shaken in the institution — we will be faced with a grim situation. A nation of 1.4 billion will suffer”, he further added.
Expressing his concern over post retirement assignments for judges, he emphasised, “Certain constitutional authorities are not permitted to hold assignments after their office like a Public Service Commission member cannot take any assignment under the government. CAG can't take that assignment. Chief Election Commissioner and Election Commissioners can't take that assignment because they must be free, not to be subjected to allurements and temptations. This was not for judges. Why? Because judges were expected to be totally away from it. And now we are post-retirement, post for judges. Am I right? And not all can be accommodated, only some can be accommodated. So when you can't accommodate all, you accommodate some, there is pick and choose. When there is pick and choose, there is patronage. It is seriously impairing our judiciary.”
Underscoring the significance of the nature of oath taken by the President of India and Governors, Shri Dhankhar stated, “ The President and the Governor are the only two constitutional offices who have an oath different than the Vice-President, the Prime Minister, the Chief Minister, Members of Parliament, Members of Assembly, and other functionaries like judges. Because all of us — the Vice-President, the Prime Minister, and others — we take oath to abide by the Constitution, but the Hon’ble President and the Hon’ble Governor — they take oath to preserve, protect, and defend the Constitution. Am I clear? So, their oath is not only very distinct, their oath is obligating them with the onerous task of preserving, protecting, and defending the Constitution. I hope there is realization all around about this constitutional ordainment for the post of the Governor…..Second, what stands out the President or the Governor, apart from the rest of us, like the Vice-President, Prime Minister and Chief Ministers and Ministers, is only these two designations have immunity from prosecution. No one else has. While they hold office, they are immune to any prosecution, pending or contemplated. And I am so happy and delighted that Shri Rajendra V. Arlekar is setting very high standards as Governor because a Governor is easy punching bag”.
Speaking about the amendments to the preamble of Indian Constitution he stated, “There has been lot of issue about preamble to the Constitution. Well first let me tell you, preamble of Indian constitution is something like parenthood to children. Howsoever you may try, you can't change your parenthood. Am I right? That's not possible. That is preamble. Secondly, historically no country's preamble has ever been changed. Thirdly, preamble of our Constitution was changed during a time when hundreds and thousands of people were behind the bars. The darkest period of our democracy, the emergency era. Then it was changed where the life of the Lok Sabha was also increased beyond 5 years. It was changed at a time when people had no access to the justice system. Fundamental rights were totally suspended. You need to examine it. We may do anything, we surely can't change our parents.”
“You will have to think aloud what happened in 42nd Constitutional Amendment Act. What happened in 44th and what was left over? Why lakhs were jailed without access to judiciary? How come 9 High Courts decided in favour of the citizen but the Supreme Court, the highest court of the land failed us in ADM's Jabalpur case. And reversed, indicating two things----It is absolute prerogative of the executive to impose emergency and to impose emergency for as much time it takes. In 1975, it was 20 plus months, and during the proclamation of emergency period, there will be no access to Judiciary. So we forfeited at that point of time our total claim to be a democratic nation”, he added.
Underscoring the significance of doctrine of separation of powers, he said, “ Constitutional essence and spirit is optimally nurtured and sustained and it blossoms with each of the pillars of constitution working in tandem to get the nation in harmony but if the legislature, the executive and judiciary are not on the same page, if they are not in sync with each other, If there is no harmony amongst them, then the situation gets little worrisome. And that is why as law students you will be focusing on doctrine of separation of powers. The issue is not which is supreme. Each institution of the Constitution is supreme in its own area”
“If one institution — the judiciary, the executive, or the legislature — makes an incursion into the domain of the other, it has the potential to upset the apple cart. It can create unmanageable problems that can be potentially very dangerous for our democracy. For example, let me give it to you in layman's language: Adjudication has to take place within the judiciary. Judgments are to be scripted by the judiciary — not by the legislature, not by the executive. And similarly, executive functions are performed by whom? By the executive. And why? Because you elect the executive — the political executive — through elections. They are accountable to you. They have to perform. They have to face elections. But if executive functions are done by, let's say, the legislature or the judiciary — that will be antithetical to the essence and of the doctrine of separation of powers……I am aghast that a functionary of the executive like the CBI director is appointed with the participation of Chief Justice of India. Why? And just think, and steer your minds. CBI director is not the senior most person in the hierarchy. He has above him several layers, CVC, Cabinet Secretary, all Secretaries. After all, he's heading a department. You must use your pen. Is it happening elsewhere in the world? Can it happen under our constitutional scheme? Why should an appointment of the executive be made by anyone else other than the executive. I strongly say so.”, he added.
