Finance minister Arun Jaitley said the appointment of judges are happening differently than originally stated in the Constitution.(HT File Photo)
Finance minister Arun Jaitley said the appointment of judges are happening differently than originally stated in the Constitution.(HT File Photo)

Jaitley asserts appointment of judges not happening as originally envisaged

Jaitley said though the Constitution says the President will appoint the judges in consultation with the Chief Justice, the same has been interpreted in different ways.
By PTI, New Delhi
UPDATED ON NOV 24, 2016 12:12 AM IST

Amid the ongoing tussle between the judiciary and the government over appointment of judges, finance minister Arun Jaitley on Wednesday said appointments taking place today are not happening as envisaged originally.

“You cannot interpret the Constitution to give it some purpose by giving a possible meaning which is different from language, but you cannot say exactly the opposite.

“That is why the appointments made today are happening differently than originally envisaged,” he said delivering a lecture on ‘Separation of power among organs of state’ at a workshop on the Constitution in the Lok Sabha Library.

He said though the Constitution says the President will appoint the judges in consultation with the Chief Justice, the same has been interpreted in different ways.

This, Jaitley said, has been interpreted as Chief Justice recommending and government appointing, the Collegium recommending the names and thirdly, as whatever said, it will be binding on the President and government has no role in appointments.

“You cannot interpret the basic structure of Constitution as just the opposite,” he said.

Jaitley, however, said the three organs of democracy have their powers separated and no one institution can be superior to the other and the judiciary cannot become either the executive or the legislature.

He said he has been a critic of the apex court judgement on NJAC and has disagreed with it publicly, adding though it is right on the basic principle on maintaining independence of judiciary as part of basic structure of Constitution, it cannot be superior to the other organs.

“An elected Parliament is also a part of the basic structure, an elected government is also a part of basic structure and a Minister and the Leader of Opposition are also part of basic structure.

“In order to protect and defend the primacy of one basic structure, one cannot allowed to steamroll on the other parts. It is this lack of balance can upset this whole theory of separation of powers,” he said.

A former law minister, Jaitley said courts can review an executive order and strike down the action of executive or legislature, but it can neither become the executive nor the legislature.

“It can’t discharge their functions. It has a power to quash, it does not have the power to direct the legislature,” he said, adding that the power to quash has to be based on conventional principles.

“It cannot quash on the ground that I think the alternative proposition is a better one,” he said.

“In terms of laying down judicial guidelines, you are actually having a judicial legislation,” he said, taking a dig at judicial overreach.

He said though the court is entitled to review of executive orders, “The court has the authority to tell the executive to act as per law, but court is not entitled to tell the Executive that now I will discharge your functions.”

According to Jaitley, the “judge’s view is final, it is not necessary that it is infallible”.

“If we are to maintain an element of statesmanship and some account of vision, I think there cannot be any guidelines as to who has to exercise which functions. It has to be a self imposed discipline and a self imposed ‘Lakshman rekha’ which all institutions like the Legislature, Judiciary and the Executive will have to impose.

“I do hope that resilience of Indian society and Indian democracy has enough strength in it that notwithstanding differences of opinion, we will in the long run be able to maintain it,” he said.

Jaitley recalled how the judiciary changed from the 1950s and 1960s when it supported the government, but later turned assertive and sometimes even went beyond its domain.

“There was a tendency to cross the Lakshman Rekha and when you cross the Lakshman Rekha you get into functions which belong to the Executive or the Legislature,” he said, recalling the past events.

“Once this tendency picks up, then it creates an impression that one institution is in separation of powers is superior to the other other institution and therefore, a superior institution can take a better decision than the other parallel institution,” he said.

Jaitley observed that in the last few decades, the country has moved from a cooperative federalism to a competitive federalism. Accordingly, he stressed the need for caution on the part of the three organs.

He said the Constitutionally mandated separation of powers among the three organs of the state has played a vital role in preserving democracy in India.

The finance minister said the system of checks and balances has ensured that they function well within their respective domains and do not usurp the essential functions of the other organs.

He emphasised that the lack of balance can upset the theory of separation of power. As such, he said that Judiciary cannot become Executive/Legislature or vice versa.

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