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The NJAC verdict: An alternative view

Arun Jaitley 

Arun Jaitley

The Supreme Court of India, by a majority opinion, has struck down 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. Having read the of the five hon'ble judges, a few issues arise in my mind.

The key rationale behind the majority appears to be that independence of the 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 the Chief Justice of India, comprise the prime minister and the leader of the Opposition, will constitute political involvement in judicial appointments. Judges appointed on this basis may feel gratified to 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 a key reason on which the 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. One learned judge argues that L K Advani has opined that the dangers of an Emergency-like situation are still there. Civil society in India is not strong and, therefore, you need an independent judiciary. Another argues that it may be possible that the present government does not favour appointment of persons with alternative sexuality as judges of the High Court and the Supreme Court. Politician bashing is akin to the 9 pm television programmes.

The judgement ignores the larger Constitutional structure of India. Unquestionably, independence of the judiciary is 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 Constitution is an elected government, which represents the will of the sovereign. The prime minister in a 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. The law minister represents a key basic structure of the Constitution - the Council of Ministers, which is accountable to Parliament. All these institutions, a parliamentary sovereignty, an elected government, the prime minister, the leader of the Opposition, the law minister are part of the Constitution's basic structure. They represent the will of the people. The majority was understandably concerned with one basic structure - independence of the judiciary - but to rubbish all other basic structures by referring to them as "politicians" and passing the judgement on a rationale that India's democracy has to be saved from its elected representatives. The judgement has upheld the primacy of one basic structure - independence of the judiciary - but diminished five other basic structures of the Constitution, namely, a parliamentary democracy, an elected government, the Council of Ministers, an elected prime minister and an elected leader of the Opposition. This is the fundamental error on which the majority has fallen. A Constitutional court, while interpreting the Constitution, had to base the judgement on Constitutional principles. There is no Constitutional principle that democracy and its institutions have to be saved from elected representatives. The Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger. Are not institutions like the Election Commission and the CAG not credible enough even though they are appointed by elected governments?

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 a democracy anywhere in the world that institutions of democracy are to be saved from the elected.

The illustrations given had to be on a sounder footing. If one leader feels that there are dangers of Emergency, there is no presumption that only the Supreme Court can save it. When in the mid-1970s the Emergency was proclaimed, it was people like me - the politicians - who fought and went to prison. It was the Supreme Court that caved in and, therefore, for the court to assume that it alone can defend the nation against Emergency, is belied by history. As for the cause of those representing alternative sexuality, the Delhi High Court had decriminalised it. I am a part of the present government, but I had publicly supported the opinion of the Delhi High Court. It was the Supreme Court which recriminalised alternative sexuality.

The judgement interprets the provision of Article 124 and 217 of the Constitution. Article 124 deals with the appointment of judges in the Supreme Court and Article 217 deals with the appointment of judges of the high courts. Both provide for the appointment to be made by the President in consultation with the Chief Justice of India. The mandate of the Constitution was that the Chief Justice of India is only a 'consultee'. The President is the appointing authority. In the second judge's case, the court declared the Chief Justice the appointing authority and the President a 'consultee'. In the third judge's case, the courts interpreted the Chief Justice to mean a collegium of judges. The President's primacy was replaced with the Chief Justice's or the collegium's. In the fourth judge's case (the present one) has now interpreted Article 124 and 217 to imply 'exclusivity' of the Chief Justice in the matter of appointment, excluding the role of the President almost entirely. This is the second fundamental error in the judgement. The court can only interpret - it cannot be the third chamber of the legislature to rewrite a law.

Having struck down the 99th Constitution Amendment, the court decided to relegislate. The court quashed the 99th Constitution Amendment. 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.

The fourth principle on which the judgement falls into an error is while stating that collegium system, which is a product of the judicial legislation, is defective. It fixed a hearing for its improvement. 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?

As someone who is concerned about the independence of judiciary and the sovereignty of Parliament, I believe 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.
Edited excerpts from Finance Minister Arun Jaitley's post on Facebook, October 18, 2015

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First Published: Sat, October 24 2015. 21:47 IST