Revisiting the Role of the Vice-President: Constitutional Mandate, Institutional Boundaries, and Contemporary Debates

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Jagdeep Dhankhar  Credit: PSUWATCH


Introduction

The Vice-President of India is the second-highest constitutional authority and serves as the ex-officio Chairman of the Rajya Sabha. Though the role is largely ceremonial, it holds key legislative responsibilities. The recent resignation of Vice-President Jagdeep Dhankhar, in accordance with Article 67(a) of the Constitution, has renewed focus on the office and its constitutional relevance. During his tenure, Dhankhar made critical remarks on the judiciary, questioning the basic structure doctrine and the NJAC judgment. He also expressed concern over executive interference in constitutional institutions. These comments have sparked national debate on the balance of power among the three organs of government. His statements reflect deeper tensions in interpreting the Constitution and the limits of judicial review. The situation calls for thoughtful engagement with the principles of separation of powers and institutional accountability.

1. Office and Election of the Vice-President: Constitutional Position

The Vice-President occupies the second highest constitutional office in the country and is ranked next to the President in the official warrant of precedence. This office is modelled on the American Vice-President, primarily acting as the ex-officio Chairman of the Rajya Sabha (Council of States).The position, powers, election, and removal of the Vice-President are defined under Articles 63 to 73 of the Constitution.

2. Election Process of the Vice-President

Article 66 specifically deals with the election of the Vice-President. He is not directly elected by the people, but through an indirect election method. He is elected by an electoral college consisting of the members of both Houses of Parliament.

This electoral college differs from that of the President in two significant ways:

  1. It includes both elected and nominated members of Parliament (while the President’s electoral college includes only elected members).

  2. It excludes members of State Legislative Assemblies, who are involved in the President's election.

Dr. B.R. Ambedkar justified this difference by stating:

“The President is the head of the State and his power extends both to the administration by the Centre as well as to the states... when we come to the Vice-President, his normal functions are to preside over the Council of States... It does not seem necessary that the members of the state legislatures should also be invited to take part in the election of the Vice-President.”

However, the manner of election is the same as the President’s:

  • System of proportional representation by means of the single transferable vote

  • Voting by secret ballot

3. Disputes Related to Vice-President’s Election

All doubts and disputes related to the Vice-President's election are inquired into and decided by the Supreme Court, whose decision is final.

  • The election cannot be challenged on the ground that the electoral college was incomplete (e.g., if there was a vacancy among members).

  • If the Supreme Court declares the election void, any acts done by the Vice-President before the date of the declaration remain valid and in force.

4. Removal and Resignation Procedure

Term of Office

  • The Vice-President holds office for five years from the date of entering upon office.

  • However, he may resign at any time by addressing a resignation letter to the President.

  • He can also be removed before the completion of his term, but no formal impeachment is required.

Procedure for Removal

  • Removal is done through a resolution passed by:

    • a majority of all the then members of the Rajya Sabha (effective majority), and

    • a simple majority in the Lok Sabha.

  • The resolution can only be introduced in the Rajya Sabha.

  • A 14-day advance notice must be given before such a resolution is moved.

  • Importantly, no grounds are specified in the Constitution for removal.

Continuation and Re-election

  • The Vice-President can continue beyond his term until his successor assumes charge.

  • He is eligible for re-election and can be elected for any number of terms.

Vacancy in the Office

A vacancy in the Vice-President’s office can arise in the following ways:

  1. Expiry of the five-year term

  2. Resignation

  3. Removal

  4. Death

  5. Other reasons, e.g., disqualification or if the election is declared void

  • If the vacancy arises due to expiry, election must be held before the term ends.

  • If the vacancy arises otherwise (resignation, removal, death, etc.), election should be held as soon as possible after the occurrence.

  • The new Vice-President holds office for a full five-year term from the date of assuming charge.

5. Recent Controversies Related to the Vice-President

a. Criticism of the Judiciary and NJAC Judgment

Background:

  • Vice-President Jagdeep Dhankhar criticized the Supreme Court’s striking down of the National Judicial Appointments Commission (NJAC).

  • He claimed the judiciary had overturned the collective will of the people expressed through Parliament.

Collegium System vs. NJAC:

  • The Collegium System, evolved through Supreme Court judgments, allows judges to appoint judges.

  • The NJAC Act (2014), a constitutional amendment, sought to replace the collegium with a body involving the executive and judiciary, promoting transparency and accountability.

  • The Supreme Court struck down the NJAC in 2015, citing threat to judicial independence and violation of the Basic Structure Doctrine.

Defense of Vice-President's Statement:

  • Advocates argue that the Vice-President highlighted legitimate concerns about lack of transparency in the collegium.

  • His remarks reflected Parliament's sovereignty and concerns over judicial accountability.

Criticism:

  • Critics view his remarks as an overreach by the Executive into the Judiciary.

  • As Chairman of Rajya Sabha, he is expected to maintain institutional neutrality, and such comments could erode trust in the separation of powers.

b. Executive Encroachment on Constitutional Institutions

Instances of Executive Interference:

  • Appointment of Governors perceived as politically motivated.

  • Misuse of investigating agencies like ED/CBI against opposition leaders.

  • Frequent ordinances, bypassing legislative scrutiny.

  • Suspension of MPs without adequate debate, raising concerns on legislative fairness.

Defense of Vice-President's Concerns:

  • He may be echoing the need to recalibrate roles of institutions to ensure effective governance.

  • Raising concerns may be part of checks and balances expected in a constitutional democracy.

Criticism:

  • Allegations of Executive interference may not seem neutral as he is part of the ruling govt.

  • Raising concerns selectively may undermine credibility, especially if institutional independence is not uniformly defended.

c. Debate on Basic Structure and Separation of Powers

Basic Structure Doctrine:

  • Established in Kesavananda Bharati case (1973).

  • Prevents Parliament from amending the Constitution in a way that destroys its basic features, such as separation of powers, judicial independence, federalism, etc.

Separation of Powers:

  • Judiciary, Legislature, and Executive have clearly defined roles.

  • Checks and balances prevent dominance of one organ over another.

Vice-President’s Stand:

  • Suggested that the Supreme Court should not override Parliament’s will.

Defense:

  • As a constitutional authority, he has a right to express concern over judicial activism and potential encroachment on legislative space.

Criticism:

  • Challenging Basic Structure Doctrine or judicial review risks undermining constitutional safeguards against majoritarianism.

d. Revival of NJAC Debate: The Varma Controversy

Justice S.K. Kaul’s Remarks:

  • Mentioned that Vice-President’s remarks on the NJAC were not in tune with constitutional post.

  • Expressed discomfort with continued executive pushback on a settled judicial verdict.

Vice-President’s Response:

  • Reiterated his stance, questioning whether judicial primacy in appointments is constitutional.

Defense:

  • The Vice-President’s statements reopened a national conversation on balancing transparency and independence in appointments.

Criticism:

  • Repeated questioning of settled law by a constitutional office bearer may weaken public trust in judicial finality.

e. Criticism of Judicial Overreach

Examples Often Cited as Overreach:

  1. Ban on firecrackers – viewed as entering executive domain.

  2. Intervention in administrative appointments, e.g., transfers of officers.

  3. Environmental directives without clear legislative backing.

  4. Ordering formation of special investigation teams (SITs) in policy matters.

  5. SC’s directions in COVID management, vaccine pricing.

Vice-President’s Concern:

  • Such judgments, he argued, represent a judiciary stepping into the executive’s shoes.

Defense:

  • These comments reflect a concern for democratic accountability and role clarity among institutions.

Criticism:

  • Many such decisions were taken in public interest when executive failed to act effectively.

  • Dismissing judicial interventions outright ignores their role in protecting rights and upholding the Constitution.

Way Forward

  1. Institutional Dialogue: Encourage respectful engagement between the three organs of the state to resolve differences and maintain checks and balances.

  2. Reforms in Collegium: Introduce transparency measures (like recording reasons for appointments) without compromising judicial independence.

  3. Revive Judicial Reforms Debate: Explore NJAC 2.0 with wider consultations and safeguards.

  4. Uphold Constitutional Morality: Office bearers must maintain dignity and neutrality, respecting the spirit of the Constitution.

  5. Public Awareness: Foster informed public discourse on constitutional matters to strengthen democracy.

🔚 Conclusion

The Vice-President’s office is a vital constitutional post with defined responsibilities, primarily in the legislative sphere. His recent remarks on judicial authority, the NJAC, and executive overreach have reignited debates on institutional boundaries and the role of both the judiciary and the executive in a parliamentary democracy.

While his views highlight concerns over transparency and judicial overreach, the judiciary’s role in upholding constitutional values remains essential. Constructive disagreements between institutions, when based on constitutional principles, are essential for a vibrant and balanced democracy.

The focus should now shift to collaborative reforms that enhance transparency, strengthen checks and balances, and respect the doctrine of separation of powers. Upholding constitutional morality and mutual respect among institutions is key to preserving democratic integrity.

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