New Delhi, Oct. 18: Arun Jaitley today tore into Friday's Supreme Court judgment that quashed the National Judicial Appointments Commission Act, attributing the verdict to "politician bashing, akin to the 9pm television programme".
"Indian democracy cannot be a tyranny of the unelected," the Union finance minister wrote in a blog on his Facebook page while accusing the apex court of acting like a "third chamber of the legislature to rewrite a law".
Jaitley said his views were "personal" but his strong statements suggest that the political establishment is gearing for a turf battle with the judiciary.
He targeted two of the judgment's arguments for the primacy of the judiciary in judges' appointments: that L.K. Advani believed an Emergency-like situation was still possible and that the executive might not appoint judges of a particular sexual orientation (gays).
"If one leader feels that there are dangers of Emergency, there is no presumption that only the Supreme Court can save it," Jaitley countered in the blog, titled "The NJAC Judgement: An Alternative View".
He went on to question the apex court's roles during the Emergency of 1975-77 and the recent legal battle over whether private gay sex between consenting adults was a criminal act.
"When in the mid-seventies the Emergency was proclaimed, it was people like me, the politicians, who fought and went to prison," Jaitley wrote.
"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."
Jaitley also pointed out that after Delhi High Court had decriminalised gay sex -- a ruling he said he had publicly supported --- it was the Supreme Court that had re-criminalised it.
"The assumption that the cause of the practitioners of alternative sexuality to be appointed as judges can only be protected by (the) Supreme Court is again belied by history," he argued.
Jaitley added that while the court's opinion was "final", it was "not infallible". His main arguments were:
The judgment had ignored "the larger constitutional structure", particularly the "elected government which represents the will of the sovereign".
Jaitley underscored that the politicians on the judicial appointments commission's search panel were the Prime Minister, who represented the "most accountable institution", and the leader of the Opposition, who accounted for the "alternative voice" in Parliament.
Besides, the law minister, the lone politician on the appointments commission, was part of the "key basic structure of the Constitution, the council of ministers which is accountable to Parliament". Together, they constituted the "will of the people".
The judgment upheld the "primacy" of the judiciary's independence but "diminished the five other basic structures of the Constitution": parliamentary democracy, an elected government, the council of ministers, an elected Prime Minister and an elected Opposition leader.
"Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger."
Another "fundamental error", he said, was that the court had taken on the role of "the third chamber of the legislature to rewrite a law".
Jaitley explained that after striking down the constitutional amendment that allowed the formation of the judicial appointments commission, the court had "re-legislated" the provisions of Articles 124 and 217 that Parliament had repealed.
Article 124 deals with the appointment of Supreme Court judges and Article 217 with the appointment of high court judges.
Jaitley said both articles allowed the appointment to be made by the President in consultation with the Chief Justice of India.
He said the Chief Justice was "only a consultee" and the President was the appointing authority. But, he said, one of the five judges had read these articles to "imply exclusivity of the Chief Justice in the matter of appointment, excluding the role of the President almost entirely".
"The basic principle of interpretation is that a law may be interpreted (by the courts) to give it an expanded meaning but it cannot be rewritten to mean the very opposite," Jaitley wrote.
"No principle of interpretation of law anywhere in the world gives the judicial institutions the jurisdiction to interpret a constitutional provision to mean the opposite of what the Constituent Assembly had said."
Jaitley, a lawyer with long experience of practising in the Supreme Court, also queried the court's decision to hear suggestions from all stakeholders on how to improve the collegium system.
"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?" he asked.
It is surprising that Arun Jaitley talks of "tyranny of the unelected" when he himself is an unelected representative, workijng as Finance Minister and using our (taxpayers) money to further the agenda of the RSS and its subsidiaries.
In the 2014 general election, Jaitley was the unsuccessful BJP candidate for the Amritsar seat in Lok Sabha, defeated by the Indian National Congress candidate Amarinder Singh.
It would have been better if he had uttered this statement after being elected.
As far as the elected representatives are concerned, we know their quality.
They consist of the scums of society - thieves, dacoits, extortionists, kidnappers, rapist, murderers.
They become elected with just 10% of the votes of any constituency. We have seen that in the recently concluded Salt Lake Municipal elections how the goondas of the TMC captured the booths and did not allow genuine voters to cast their votes.
The elections are never FREE & FAIR and the general public has lost faith on its elected representatives.
We find that the SUPREME COURT is the only beacon of light on which the people have hope and which can save the country.