Terming as “erroneous logic” the Supreme Court’s reasoning for striking down the National Judicial Appointments Commission Act, Finance Minister Arun Jaitley today said Indian democracy cannot be a “tyranny of the unelected” and that it would be in danger if the elected are undermined.
Expressing “personal” views on the judgment in a Facebook post titled ‘The NJAC Judgement – An Alternative View?’ he said, “The judgement 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. “
The Supreme Court, by a majority opinion, last week struck down as unconstitutional the National Judicial Appointments Commission Act and also the 99th Constitution Amendment, which provided for the establishment of the National Judicial Commission to appoint judges of the high court and the supreme court.
“A constitutional court, while interpreting the Constitution, had to base the judgement 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,” he said.
Stating that “few issues” had arisen in his mind after reading the opinion of five judges, he said, “Are not institutions like the Election Commission and the CAG not credible enough even though they are appointed by elected governments?”
The key rationale, he said, behind the majority opinion appears to be that independence of judiciary is an essential ingredient of the basic structure of the Constitution.
“This is unquestionably a correct proposition. Having stated this, the majority transgresses into an erroneous logic,” 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.
Judges appointed on this basis may feel gratified to the politicians. Political persons would be obviously guided by their political interest. The judges warn of “adverse” consequences if politicians were a part of the appointment process, he said.
Jaitley said the judgement says protection of the judiciary from political persons was essential in striking down NJAC.
Politician bashing is the key to the judgement, Jaitley said, adding one of the judge argues that BJP leader LK Advani had 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
Stating that the judgement ignored the larger constitutional structure, he said independence of the judiciary is unquestionably a part of the basic structure of the Constitution. It needs to be preserved.
“But the judgement 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.
The prime minister in Parliamentary democracy is the most important accountable institution. The leader of the opposition is an essential aspect of that basic structure
representing the alternative voice in Parliament. The law minister represents a key basic structure of the Constitution; the Council of Ministers, which is accountable to Parliament.
All these institutions, Parliamentary sovereignty, an elected government, a prime minister, leader of opposition, law minister are a part of the Constitution’s basic structure. They represent the will of the people, he said.
“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 judgement on a rationale that India’s democracy has to be saved from its elected representatives,” he said.
“The judgement 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.
Stating that a constitutional court, while interpreting the Constitution, had to base the judgement on constitutional principles, he said “there is no constitutional principle that democracy and its institutions has to be saved from elected representatives.”
“There is no principle in democracy anywhere in the world that institutions of democracy are to be saved from the elected,” he said, adding if one leader feels that there are dangers of Emergency, there is no presumption that only the Supreme Court can save it.
“When in the mid-Seventies the Emergency was proclaimed, it was people like me – the politicians, who fought out and went to prison. It was Supreme Court that caved in and, therefore, for the court to assume that it alone can defend the nation against Emergency, is belied by history,” Jaitley said.
On alternative sexuality, he said the Delhi high court had decriminalised it.
“The assumption that the cause of the practitioners of alternative sexuality to be appointed as judges, can only be protected by Supreme Court, is again belied by history. The Supreme Court opinion is final. It is not infallible.”
The finance minister said the judgement interprets the provision of Articles 124 and 217 of the Constitution dealing with appointment of Judges in the Supreme Court and high courts respectively.
Both provide for the appointment to be made by the President in consultation with the Chief Justice of India. The mandate of the Constitution was that Chief Justice of
India is only a ‘Consultee’. The President is the appointing authority. 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, he said.
“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 judgement. The court can only interpret – it cannot be the third chamber of the legislature to rewrite a law,” he said.
Having struck down the 99th Constitutional Amendment, the Court decided to re-legislate. The court quashed the 99th Constitutional Amendment. The court is entitled to do so. While quashing the same, it re-legislated the repealed provisions of Article 124 and 217 which only the legislature can do. This is the third error in the judgement, he said.
The judgement, he said, falls into an error in stating that collegium system is defective. It fixed a hearing for its improvement.
“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.