Basic structure can't be dismantled to protect only judiciary independence: FM

Continuing his criticism of the quashing the NJAC Act, Finance Minister Arun Jaitley today said doctrine of basic structure, including elected government and parliament's sovereignty, cannot be "dismantled" to save only independence of judiciary and favoured reconsideration of the verdict.

"Of course, I have been vocal in my comments about recent judgement on the NJAC. I think at some stage in future, we need to reconsider it. When the law says that the President shall appoint (judges) in consultation with the Chief Justice, to say that this law actually means that the Chief Justice will appoint virtually without consulting anyone, is the opposite of what the Constitution says.

"And to base it on a logic that an institution can be saved only by exclusivity of exercise of power by judiciary, elected representatives, can't be trusted. I think to say, the least, is not a fair argument," the Finance Minister said.

He said in a democracy, where independence of judiciary, is a part of basic structure but so is the elected government and an elected parliament, "you can't dismantle all other basic structures just to protect one".

"I think you require reconsideration," he said while speaking at Times LitFest here.
Jaitley said future generations will have to see that the verdict criminalizing consensual gay sex "are reconsidered".

He said that reservations in job and education for tribal people and others should continue till the time the "deprived section" of the society do not come on par with others.

Speaking about legal cases that shaped Indian democracy, Jaitley said that "the most important case would be the Kesavananda Bharti case".

In 1971, Parliament had empowered itself to amend any part of the Constitution, but Supreme Court, in the Kesavananda Bharti case, had said that the basic structure has to be left untouched and subjects like fundamental rights, judicial independence, parliamentary sovereignty, etc. form part of it.

In response to a question on reservation, the minister said, "...I have made a broad point that I would normally like Parliament to legislate and the courts to interpret. This is one issue on which the political system, because of competing interests, has never been able to have the last word.

"That is why I implicitly said and I used a phrase that these are the (cases) now settled by judicial legislations. Because judicial legislation does not have the same compulsions which the political establishments have. Hopefully, some of the matters will also get settled by judicial legislations."

Dealing with details about the judgement on consensual gay sex, he said that the 2014 judgement that set aside the Delhi High Court verdict de-criminalising it, needed to be reconsidered in the present context.

"When you have millions of people involved in this (gay sex) you can't nudge them off," he said, adding that the court had taken a "conservative view".

He referred to the evolution of jurisprudence and said that the view taken by the court on the issue would have been relevant about 50 years ago but "as jurisprudence world over is evolving, I think the judgement was not correct and probably at some stage they may have to reconsider".

Using the term "judicial legislation", he said, "Something which the Parliament and the government should have done, and the failure of political system to resolve it, the court played an activist's role in the OBC reservation case".

Jaitley also said that Indian case laws on freedom of speech and expression can match that in Europe and the USA and courts here have always upheld and defended this right.

"Courts in India have always defended the right to free speech, guaranteed under the Article 19 of Indian Constitution. We can compete with European courts in this," he said.

Referring to the division of opinion among political groups, he said that it provided the scope for the Mandal judgement, which is a "kind of judicial legislation".

In response to a question whether the reservation policy needed a re-look, he said that the time has not yet come for that.

"It's still not the time to think of that. Let us honestly introspect. It is an argument raised by those who feel that their interest is impacted adversely by reservation.

"Have we brought the Scheduled Castes and Scheduled Tribes in this country to a level that in 2015 they are able to compete at par... Can we honestly admit that? And, if we can't, then I think let's not speak, today at least, about the time frame. Let's first bring them up," he said.

"Look at the plight of tribes in central India and look at the consequential kind of social and even violent movements which are being built up due to dissatisfaction. In the face of that, I don't think the time has come to fix a time frame," he added.

Responding to a query whether a time frame can be fixed for disposal of cases, he said, "The laws in which it has been written that the government will decide something within a certain period, that is treated as mandatory. If the government or any institution doesn't follow that, then the courts say it is a violation of law.

"But when the time frame is fixed by the courts for the laws... It is my own experience that when I was the law minister, I had amended the Civil Procedure Code and with much pride said that every case will be decided within certain time period. But in one judgement, the Supreme Court said that those recommendations were only suggestive and not mandatory for them. The time boundation is applicable on the entire world but not on judiciary."

Speaking about the cases that shaped Indian democracy, he mentioned cases like Kesavananda Bharati and Maneka Gandhi vs Union of India.

In Gandhi's passport case, the court had highlighted the "supremacy of fundamental rights" in the country.

He also referred to historic judgements in the SR Bommai case on imposition of President's rule in states and the Mandal judgement.

Jaitley also listed cases, including a Bombay High Court judgement upholding a local law allowing male bigamy, and said that it requires reconsideration as it is not in consonance with the fundamental rights available to women.