Indian democracy can’t be “a tyranny of the unelected” and “politician bashing” was at the centre of the Supreme Court judgment that struck down NJAC, finance minister Arun Jaitley said on Sunday.
Independence of judiciary and sovereignty of Parliament must co-exist and the latter should not be weakened to strengthen the former, Jaitley, a seasoned lawyer, said, adding the ruling undermined parliamentary democracy and as well as the basic structure of the Constitution.
“The Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger,” he said in the Facebook post The NJAC Judgement – An Alternative View? The minister said the views were personal.
The Modi government’s efforts to bring in judicial reforms were dealt a huge blow on Friday when the court struck down as unconstitutional the national judicial appointments commission act and revived the opaque collegium system allowing judges to appoint judges.
NJAC would have given the government a say in the appointments to SC as well as the high courts, ending the judiciary’s stranglehold over who joins its ranks. “Politician bashing is akin to the 9.00 PM television programmes. The judgement ignores the larger constitutional structure of India,” Jaitley said.
Jaitley, who was also a law minister, said independence of the judiciary was a part of the basic structure of the Constitution and needed to be preserved. The judgment, however, had ignored several other features of the Constitution. “The most important basic structure of the Indian Constitution is Parliamentary democracy,” Jaitley wrote.
While the order upheld independence of judiciary, it diminished five others basic structures of the Constitution -- parliamentary democracy, an elected government, the council of ministers, an elected prime minister and leader of the opposition.
To one of the judge’s argument, who cited BJP leader LK Advani, that the fear of an Emergency-like situation was still there, Jaitley said when the draconian provision was proclaimed in the mid-seventies, it was people like him – the politicians – who fought out and went to prison while the Supreme Court caved in. “Therefore, for the court to assume that it alone can defend the nation against Emergency, is belied by history,” he said.
Going into the history of judicial appointments, Jaitley said the court had replaced the president’s primacy – as laid down by the Constituent Assembly -- with that of the Chief Justice or the collegium.
In striking down the 99th constitutional amendment, the court had decided to re-legislate, which was the job of the legislature. “The court is entitled to do so (quash constitution amendment ). While quashing the same, it re-legislated the repealed provisions of Article 124 and 217 which only the legislature can do.” The two articles deal with the appointments of SC and high court judges, respectively.
The court had accepted that the collegium system -- a product of the judicial legislation -- was defective, it fixed a hearing for it. “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?” the minister said.
The Congress criticised Jaitley, saying the senior BJP leader’s “acrimonious attack is a travesty of constitutional sovereignty”.