NEW DELHI: In a strongly-worded critique, Finance minister Arun Jaitley on Sunday disapproved the Supreme Court’s judgment that struck down the National Judicial Appointments bill has having “erroneous logic”, was mainly about “politician bashing” and asserted that if Indian democracy came under “tyranny of the unelected”, it could be in danger.
Jaitley had piloted the constitutional amendment act in parliament which was struck down by Supreme Court in a majority decision on Thursday. The Act had provided for the setting up of a new body to appoint judges in the higher judiciary.
The finance minister expressed his views in a 1275-word facebook post titled 'The NJAC Judgment - An Alternative View?’. At the end, there was a disclaimer – “The views expressed are personal”.
He asserted that judgment by “majority majority transgresses into an erroneous logic”. The Supreme said that method of appointment of judges as per the NJAC would would breach the concepts of separation of powers and the independence of the judiciary, which are both components of the basic structure of the Constitution.
The finance minister asserted that while the “judgment has upheld the primacy of one basic structure - independence of judiciary - but diminished five other basic structures of the Constitution, namely, Parliamentary democracy, an elected Government, the Council of Ministers, an elected Prime Minister and the elected Leader of the Opposition. "
Terming this as the “fundamental error” of the judgment, he said that a constitutional court, while interpreting the Constitution, had to base the judgment on constitutional principles.
“There is no constitutional principle that democracy and its institutions has to be saved from elected representatives. The Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger,” said Jaitley.
He asked whether not “like the Election Commission and the CAG not credible enough even though they are appointed by elected Governments?”
Jaitley said that he had spent more years in court than in parliament and felt constraint to defend Indian democracy. “There is no principle in democracy anywhere in the world that institutions of democracy are to be saved from the elected,” he said.
The judgment argues that the presence of a Law Minister in the Commission and the appointment of two eminent persons in the Commission by a group, which will, besides Chief Justice of India, comprise of the Prime Minister and the Leader of the Opposition, will constitute political involvement in the judicial appointments.
One of the four judges in the majority, Justice Adarsh Goel said that the new scheme damages the basic feature of the Constitution under which primacy in appointment of judges has to be with the judiciary.
“Under the new scheme such primacy has been given a go-bye. Thus the impugned amendment cannot be sustained. The amendment being beyond the competence of the Parliament, I do not consider it necessary to discuss the validity of the NJAC Act in great detail as the said Act cannot survive once the amendment is struck down,” he said.
On the inclusion of two eminent persons in six-member NJAC, the majority view held it ultra vires of the Constitution with Justice Khehar maintaining that for variety of reasons the same has been held as violative of the basic structure of the constitution.
Jaitley felt that “politician bashing” was the “key to the judgment”.
“One learned judge argues that Shri L.K. Advani has opined that dangers of an Emergency like situation are still there. Civil society in India is not strong and, therefore, you need an independent judiciary. Another argues that it may be possible that the present Government does not favour appointment of persons with alternative sexuality as Judges of the High Court and the Supreme Court. Politician bashing is akin to the 9.00 PM television programmes,” he said in language which is the strongest reaction yet from a government functionary.
Stating that the judgment ignored the larger constitutional structure, he said independence of the judiciary is unquestionably a part of the basic structure of the Constitution, which needs to be preserved.
"But the judgment ignores the fact that there are several other features of the Constitution which comprise the basic structure. The most important basic structure of the Indian Constitution is Parliamentary democracy. The next important basic structure of the Indian Constitution is an elected Government which represents the will of the sovereign," he said.
In Parliamentary democracy, Jaitley said, Prime Minister is the most important accountable institution, with the Leader of the Opposition representing the alternative voice, Law Minister represents a key basic structure of the Constitution
"The majority opinion was understandably concerned with one basic structure - independence of judiciary - but to rubbish all other basic structures by referring to them as 'politicians' and passing the judgment on a rationale that India's democracy has to be saved from its elected representatives," he said.
"The judgment has upheld the primacy of one basic structure - independence of judiciary - but diminished five other basic structures of the Constitution, namely, Parliamentary democracy, an elected Government, the Council of Ministers, an elected Prime Minister and the elected Leader of the Opposition. This is the fundamental error on which the majority has fallen," Jaitley said.
He noted that if there are “dangers of emergency”, there is “no presumption that only the Supreme Court can save it”.
He pointed out during Emergency, “it was people like me – the politicians, who fought out and went to prison” and the “Supreme Court had caved in”.
On the issue of those representing alternative sexuality, Jaitley said that he had publicly supported the Delhi High Court judgment, but it was Supreme Court which recriminalized homosexuality.
The Finance Minister said the judgment interprets the provision of Articles 124 and 217 of the Constitution dealing with appointment of Judges in the Supreme Court and High Courts respectively.
The mandate of the Constitution was that Chief Justice of India is only a 'Consultee' and the President is the Appointing Authority, he noted, adding “The basic principle of interpretation is that a law may be interpreted to give it an expanded meaning, but they cannot be rewritten to mean the very opposite”
"No principle of interpretation of law anywhere in the world, gives the judicial institutions the jurisdiction to interpret a constitutional provision to mean the opposite of what the Constituent Assembly had said.
"This is the second fundamental error in the judgment. The court can only interpret - it cannot be the third chamber of the legislature to rewrite a law," he said.
The third error was that the Court decided to “re-legislate” the repealed provisions of 124 and 217, while quashing down 99th constitutional amendment, which “only the legislature can do”.
The judgment, he said, falls into an fourth error in stating that collegium system is defective, for which another hearing has been fixed.
“The court has again assumed the role of being the third chamber. If there is a problem with the procedure of judicial appointments, have those legislative changes to be evolved outside the legislature?” he asked
"The court has again assumed the role of being the third chamber. If there is a problem with the procedure of judicial appointments, have those legislative changes to be evolved outside the legislature?," he asked.
Jaitley said as someone concerned about the independence of judiciary and the sovereignty of Parliament, he believed that the two can and must co-exist.
"Independence of the judiciary is an important basic structure of the Constitution. To strengthen it, one does not have to weaken Parliamentary sovereignty which is not only an essential basic structure but is the soul of our democracy," he said.