Finance minister Arun Jaitley has said the Supreme Court judgment striking down the National Judicial Appointments Commission Act is based on “erroneous logic”.
“The Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger,” Jaitley said on Sunday, expressing his “personal” views in a Facebook post titled ‘The NJAC Judgment – An Alternative View.’
“The judgment 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 wrote.
“A constitutional court, while interpreting the Constitution, had to base the judgment on constitutional principles. There is no constitutional principle that democracy and its institutions has to be saved from elected representatives,” he said.
Stating that politician bashing is the key to the judgment, Jaitley writes, “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.”
The Supreme Court, by a majority opinion, struck down as unconstitutional the National Judicial Appointments Commission (NJAC) 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.
The key rationale, Jaitley 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,” Jaitley said.
Stating that the Supreme Court’s opinion is final, but not infallible, Jaitley explains what according to him are the fundamental errors in the judgment.
Jaitley said the independence of judiciary and the sovereignty of Parliament 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.