NJAC SC verdict: Democracy cannot be 'tyranny of the unelected', says Jaitley

In unusually strong remarks over the Supreme Court's reasoning for striking down the NJAC Act, Finance Minister Arun Jaitley today said Indian democracy cannot be a "tyranny of the unelected" and to strengthen independence of judiciary, one does not have to weaken Parliamentary sovereignty.

Terming as "erroneous logic" reasons given by a five-judge Constitution bench which declared as unconstitutional the National Judicial Appointments Commission (NJAC) Act, 2014 and also the 99th Constitution Amendment, Jaitley warned that democracy would be in danger if the "elected are undermined".

"The Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger," he said in a Facebook post titled 'The NJAC Judgement – An Alternative View?', which he termed as "personal views".

Jaitley, also a former Law Minister, said as someone concerned about the independence of judiciary and the sovereignty of Parliament, he believed 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," he said.

The NDA government had suffered a huge blow with the Supreme Court saying the legislations, which gives a major role to the executive in appointing judges, would breach the "independence" of the higher judiciary.

The NJAC Act, which replaced the 22-year-old collegium system of judges appointing judges, was held as "void" by the apex court which said it impinges upon the concepts of "separation of powers" and the "basic structure" of the Constitution.

In its reaction, the Modi government had said that the verdict, which drew mixed responses from the legal fraternity and political parties, was a "setback to parliamentary sovereignty."

Politician bashing is the key to the judgement, Jaitley said, adding one of the judge argues that BJP leader LK Advani had opined that 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 9.00 PM television programmes," he said.

The judgment 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, said Jaitley.

He said the judgement 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.

Stating that "few issues" had arisen in his mind after reading opinion of five judges, he said, "Are not institutions like the Election Commission and the CAG not credible enough even though they are appointed by elected Governments?"

The key rationale, he 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," he said.

"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," he said.

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. The Law Minister represents a key basic structure of the Constitution; the Council of Ministers, which is accountable to Parliament.

"When in the mid-Seventies the Emergency was proclaimed, it was people like me – the politicians, who fought out and went to prison. It was 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," Jaitley said.

On alternative sexuality, he said the Delhi High Court had decriminalized it. "The assumption that the cause of the practitioners of alternative sexuality to be appointed as judges, can only be protected by Supreme Court, is again belied by history. The Supreme Court opinion is final. It is not infallible."

The Finance Minister said the judgement interprets the provision of Articles 124 and 217 of the Constitution dealing with appointment of Judges in the Supreme Court and High Courts respectively.

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 Chief Justice of India is only a 'Consultee'. The President is the Appointing Authority.