Union Finance Minister Arun Jaitley has strongly criticised the Supreme Court’s scrapping of the 99th Constitutional Amendment or the National Judicial Appointments Commission (NJAC) Act, saying the “Supreme Court’s judgment may be final, but it is not infallible” and that it privileged a certain “tyranny of the unelected” in its logic.
In a blog post, Mr. Jaitley said the verdict raised several issues in his mind, particularly the fact that “politician bashing seems to be the key ingredient of the judgment” and this ignored the “basic structure of the Constitution” where parliamentary democracy was central and where the will of the people (as represented by elected representatives) was sovereign. He said the judgment was based on the premise that the independence of judiciary would be compromised because of the presence of politicians on the judges appointment commission, that judges thus appointed would feel indebted to the politicians.
SC caved in to tyranny, says Jaitley
Union Finance Minister Arun Jaitley has said the Supreme Court verdict, scrapping the 99th Constitutional Amendment or the National Judicial Appointments Commission (NJAC) Act, reflected politician-bashing akin to prime-time news programmes.
Mr. Jaitley wrote in a blog that although “unquestionably independence of the judiciary is a part of the basic structure of the Constitution”, the judgment ignored several other pillars of the Constitution, such as the Prime Minister, his Council of Ministers, the Law Minister and the Leader of the Opposition.
“They represent the will of the people. The majority opinion was understandably concerned with one basic structure — independence of judiciary — but rubbished all other basic structures by referring to them as ‘politicians’ and passing the judgment on a rationale that India’s democracy has to be saved from its elected representatives. 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,” he said.
“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?” Mr. Jaitley asked.
“When in the mid-Seventies the Emergency was proclaimed, it were people like me — the politicians, who fought it 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 HC had decriminalised it. I am a part of the present government, but I had publicly supported the opinion of the Delhi HC. It was the SC which recriminalised alternative sexuality,” he said.
