Independence of the judiciary is important and to strengthen it, one does not have to weaken parliamentary sovereignty, says finance minister in a facebook post
GN Bureau | October 19, 2015
Facebook founder Mark Zuckerberg, who will be in India later this month, is going to be pleased with this. Finance minister Arun Jaitley took to facebook to express his opinion on a serious subject of supreme court judgment striking down the national judicial appointments commission act. Jaitley has a personal website but he chose social media platform like facebook . It speaks of the power and the lure of the social media. Facebook has the number counter and it is very tempting. By Monday morning Jaitley’s post lambasting the judges had attracted 3.1k likes, 458 comments and 764 shares.
Finally, what is there in Jaitley’s write up?
“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 the 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 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.
The supreme court, by a majority opinion, struck down as unconstitutional the NJAC Act and also the 99th constitution amendment, which provided for the establishment of the commission to appoint judges of the high court and the supreme court.
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