Congress MP Shantaram Naik’s letter to Union Finance Minister Arun Jaitley — questioning the “basic structure” doctrine and asking the BJP to act against what he sees as judicial usurpation of parliamentary prerogative — is a troubling missive. The letter seeks to revive, and to stoke, anxieties that lost their edge long ago. These had to do with a question fundamental to democratic constitutionalism: Who is the final custodian of the Constitution, the Parliament or the judiciary? The “basic structure” doctrine, explicated by the Supreme Court in the landmark Kesavananda Bharati vs State of Kerala case in 1973, gave an answer: It laid down that Parliament’s power to amend the Constitution, under Article 368, is not unlimited and unfettered. Any constitutional amendment can be declared invalid by the court if it violates the “basic structure”. That is, parts of the Constitution constitute a higher set of rules which must be seen to be immune from the tyrannies and whims of transient parliamentary majorities.To be sure, what constitutes the “basic structure” has not been explicitly defined by the judiciary — these transcendental features are to be determined by the court in each case that comes before it. It is also true that the court itself has not always been consistent or high-minded in its interpretations, and that in its own conduct, it has often invited accusations of overreach. Yet, over the years, the “basic structure” doctrine has gained wide acceptance and legitimacy. It has been seen to be the best assurance of protecting entrenched values — such as secularism, rule of law, freedom of expression — that are essential to our identity and integrity as free and equal citizens. Now, Naik’s exhortation to the BJP-led government to use its decisive majority to upend the doctrine, strikes a jarring note. It is, potentially, more subversive than that. After all, it comes in a fraught moment in the relationship between the executive and the judiciary, in which tension is building on their respective roles in the process and procedure of the appointment of judges, which has implications for the independence of the judiciary. The memorandum of procedure worked out to govern higher judicial appointments has not brought a mutually acceptable resolution. In such a moment, Naik’s intervention could be seen as disturbing advocacy of a powerful executive’s right to override the higher set of rules that help govern and preserve our constitutional democracy.

Just as Naik’s letter cannot be read outside of its political context, it cannot be distanced from his party affiliation. Does the Congress share the view of its MP from Goa, who, incidentally, has also been chairman of the parliamentary standing committee of law? Does the Congress also believe that there must be no substantive constraints on lawmaking, and that the power to amend the Constitution must also carry within it the power to destroy its essential features? The party must answer.

 Kalyan Shrestha, who retired as the chief justice of Nepal only a year ago, claimed that the impeachment motion against his successor, Sushila Karki, was a brazen attack on the independence of judiciary. Shrestha, who became a commissioner of the Geneva-based International Commission of Jurists after retirement much in violation of the judges code of conduct, said CPN (Maoist-Centre) chairman and Prime Minister Pushpa Kamal Dahal and Nepali Congress chief Sher Bahadur Deuba “must resign” if the impeachment motion is defeated in the House.

The ICJ and Human Rights Watch, closely working with Nepal’s human rights organisations, are putting pressure on the two parties to withdraw the motion immediately on grounds that it is “politically motivated” and an “attack on the independence of the judiciary”. Nepal’s political parties and the civil society are sharply polarised on the issue, with no compromise in sight. The main opposition, the Communist Party of Nepal-Unified Marxist Leninist, which is closely working with the international bodies on the issue, even tried to obstruct the tabling of the motion that the ruling coalition is determined to go ahead with.

The frequent threat to impeach, a provision that was expected to be used sparingly under a constitution that gives undue power to the legislature (political parties) over the judiciary and other constitutional bodies, works against the principle of the separation of powers. It can damage the edifice of democracy. All the major parties, both for and against the impeachment motion, are equally guilty of undermining the balance between the institutions.

The radical journey that Nepal embraced in 2006 was perhaps the first step to bring the judiciary under the decisive influence of the political parties. The latter, probably, were fearful that an independent judiciary will come in the way of the political journey they desired for the nation. All the sitting judges of the Supreme Court, including the chief justice, were asked to take a fresh oath, which appeared like an oath of loyalty to the new regime. None dared to resign or refuse to take the fresh oath in that euphoric moment. This surrender was in contrast to the courage Nepal’s judiciary had exhibited in the past. Nepal’s judiciary, led and packed with people, mostly god-fearing scholars, has stood in favour of individual liberty and the right to organisation much before the advent of multi-party democracy in 1991. The judges were not asked in 1959 or in 1991, times of major political upheaval, to take fresh oaths. However, the experiment in 2006 has attempted to curtail the judiciary’s independence.

The four major parties — Nepali Congress, UML, Maoists and the Madhesi groups — that dominated politics post 2006 have benefited from the quota system that allows political groups a say in the appointment of judges. In 2012-13, these parties even agreed to have the sitting chief justice of the supreme court, Khil Raj Regmi, head a coalition government that included their representatives. “The collective consent” sealed the fate of an independent judiciary. Ironically, neither the ICJ nor any other international organisation warned against the consequences of the move.

The current impeachment, second in the past six months, is worrying for two reasons. First, it has polarised political forces and the civil society; and second, the parties that were together at the time of appointing judges and members of the constitutional bodies are now out to destroy each other. This politics of revenge and intolerance brings everyone — from the president and vice president to judges and members of the constitutional commission — in the strike range of the impeachment missile. All it requires is for one-fourth of the House, which has an effective strength 593, to sign and submit the motion to parliament secretariat. The practice so far is that the person targeted stands suspended immediately from the post he holds until the case is settled, something that may continue beyond their tenure. There are fears that the UML may launch an impeachment motion against senior judge(s) opposed to Karki.The Supreme Court on Friday gave a temporary reprieve to CJ Karki by ordering that she be allowed to return and head the judiciary. This may now trigger a new phase of confrontation between the parliament and judiciary and create an awkward situation for CJ Karki. After all, it was parliament that suspended her, pending impeachment