The judiciary’s independence was essential but the Constitution didn’t give judges the right to appoint their peers, finance minister Arun Jaitley said on Friday, defending a controversial judicial reform move that triggered charges of government interference in courts.
On the second day of Parliament’s winter session, Jaitley said framer of the Constitution, BR Ambedkar didn’t want the power to pick judges left to the judiciary alone, barely a month after the Supreme Court quashed the National Judicial Appointments Commission Act that gave the government a say in judges ‘appointment.
“The process to appoint judges has to be consultative. Judiciary is a part of the Constitution’s basic structure but so is Parliament, the Prime Minister and the council of ministers. To say only one will prevail and the others are irrelevant upsets constitutional balance,” the finance minister said, to loud thumping.
Jaitley also accused the judiciary of crossing the “Laxman Rekha” of separation of powers enshrined in the Constitution and said courts didn’t have the powers to assume the functions of the executive or the legislature.
“Self disciplining is required to maintain delicate balance because if it is upset, then the constitutional balance is upset. How many calories have to be fed to a terrorist, or how many bullets are to fired in an encounter cannot be determined by courts,” the finance minister said in the Rajya Sabha.
The crucial month-long session is expected to see heated debates on intolerance and a clutch of reform bills. The first two days have been designated to celebrate and discuss the Constitution and the role of BR Ambedkar but has turned into a political battlefield between the government and the Opposition.
Jaitley had tore apart the order in an October Facebook post, saying Indian democracy couldn’t be “a tyranny of the unelected” and “politician bashing” was at the centre of the judgment.
The NJAC verdict had put the judiciary on a collision course with Parliament and the government and had come as a major setback for the NDA.
A five-judge bench headed by Justice JS Kehar revived the 22-year old opaque collegium system, saying the NJAC eroded judicial independence.
Under the collegium system, only the top five SC judges cleared appointments. The six-member NJAC was to be headed by the CJI and comprised two senior-most SC judges, the Union law minister and two eminent persons to be selected by a panel of the PM,CJI and leader of the opposition. Any two members of the NJAC could veto an appointment.
The SC faulted the presence of the law minister in the panel, saying a judge appointed with his support may not be able to resist a plea of conflict of interest by a litigant in a matter when the executive has an adversarial role. The government is the biggest litigant in courts.