The NJAC Judgement - An Alternative View - Arun Jaitley
Supreme Court - Final, not Infallible
Finance Minister Arun Jaitley has commented on the latest Supreme Court judgement in the National Judicial Appointments Commission case on his facebook page:
The key rationale 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. It 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. Hence protection of the judiciary from political persons was essential. This is key reason on which constitution amendment, unanimously passed by both the Houses of Parliament and the State Legislature, has been struck down.
Politician bashing is the key to the judgement.
The judgement ignores the larger constitutional structure of India. Unquestionably independence of the judiciary is 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. 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.
As someone who has spent more years in court than in Parliament, I feel constrained to speak out for Indian democracy. There is no principle in democracy anywhere in the world that institutions of democracy are to be saved from the elected.
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.
As someone who is equally concerned about the independence of judiciary and the sovereignty of India's Parliament, I believe 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.
The Supreme Court opinion is final. It is not infallible.
The FM has added a disclaimer: The views expressed are personal.