Senior Advocate and President of the Supreme Court Bar Association, Kapil Sibal, voiced serious concern over Vice President Jagdeep Dhankhar's recent remarks that described the Supreme Court’s use of Article 142 as a “nuclear missile” against democratic forces. Speaking at a press conference today, Sibal said he was “deeply saddened” by such statements coming from a constitutional authority.
“When I woke up and read the Vice President's remarks in the newspapers, I was deeply saddened and shocked,” said Sibal. “If there is one institution that people still trust today, it is the judiciary—be it the Supreme Court or the High Courts.”
Sibal pointed out that government authorities often praise the judiciary when the rulings align with their interests—such as in the Article 370 abrogation or the Ram Janmabhoomi judgment—but start criticizing the courts when decisions go against them. He cited the recent judgment by Justice JB Pardiwala as an example of this double standard.
The Vice President had strongly objected to the Supreme Court’s direction setting time limits for the President of India to act on Bills referred by the Governor, especially in the Tamil Nadu Governor case. He controversially remarked that:
“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. So we have judges who legislate, perform executive functions, act as a super-parliament, and face no accountability.”
In response, Sibal firmly rejected these claims and defended the constitutional role of Article 142.
“With all due respect to the Honourable Vice President, calling Article 142 a ‘nuclear missile’ is extremely problematic. This power is not given by the Government—it is the Constitution that empowers the Supreme Court to do complete justice.”
He emphasized that the President and Governors act not independently but as per the aid and advice of the Council of Ministers, as clearly stated in the Constitution.
“The President of India is a titular head. She performs her functions based on the advice of the Council of Ministers. Similarly, the Governor must act on the advice of the State's Council of Ministers. If a Bill is passed again after being returned by the Governor, the Governor is bound to give assent. That is what the Constitution says.”
Sibal also highlighted that while the Governor can reserve a Bill for the President’s consideration, the President acts on the Union Cabinet's advice, not on personal discretion.
“Dhankhar Ji must understand that the President does not have personal discretion in these matters. Who is curtailing her powers? This suggestion is an intrusion into the supremacy of the legislature. If the Parliament passes a Bill, the President is not free to just sit on it. If she does, then what recourse do we have?”
Raising broader concerns, Sibal warned against the continuing erosion of judicial independence.
“We must not attack or undermine our judicial institutions. If the executive starts attacking the judiciary, especially when holding a constitutional post, it becomes difficult. The judiciary cannot defend itself. It is the responsibility of the country’s polity to stand up for the judiciary. Judicial independence is fundamental to democracy; without it, our rights are at risk—as they already are.”
Referring to the 6th batch of Rajya Sabha interns, the Vice President had stated that Article 145(3) requires a bench of at least five judges to decide on significant constitutional matters. He questioned why a two-judge bench—comprising Justices JB Pardiwala and R. Mahadevan—passed a decision with major constitutional implications.
“When Article 145(3) was introduced, the Supreme Court had just eight judges. Now, the strength has increased to 31. There is a need to amend Article 145(3) to increase the number of judges in a Constitution Bench,” Dhankhar said.
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He continued by questioning the Supreme Court's authority to issue directions to the President, especially regarding time-bound decisions.
“We cannot have a situation where judges direct the President of India. The only constitutional right they have is to interpret the Constitution under Article 145(3), and that must be by a five-judge bench or more.”
Dhankhar's comments were in response to a recent Supreme Court judgment regarding the Tamil Nadu Governor's delay in granting assent to Bills passed by the State Assembly. The judgment not only set deadlines for the Governor but also directed that the President must act within a reasonable timeframe when Bills are referred under Article 201 of the Constitution.
According to the Court, if the President fails to act within this period, States can approach the judiciary seeking a writ of mandamus compelling the President to take a decision.
Additionally, the judgment clarified that if a Bill is referred to the President due to concerns of unconstitutionality, the President should first seek the Supreme Court’s opinion under Article 143 before making a decision.
