NJAC law: Judiciary upheld primacy of basic structure; undermined legislature, says Arun Jaitley

Days after the Supreme Court turned down the National Judicial Appointments Commission law, Union Finance Minister Arun Jaitley has spoken out expressing disappointment about the decision.

Jaitley on his Facebook page has said that while the judiciary has upheld the primacy of one basic structure - independence of judiciary - it has 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.

Jaitley says that Indian democracy cannot be a tyranny of unelected and questioned whether other institutions where appointments are made by elected representatives not credible enough.

The Supreme Court, by a majority opinion, last week struck down as unconstitutional the NJAC Act and also the 99th Constitution Amendment, which provided for the establishment of the National Judicial Commission to appoint judges of the High Court and the Supreme Court.

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 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.

Judges appointed on this basis may feel gratified to the politicians. Political persons would be obviously guided by their political interest. The Judges warn of "adverse" consequences if politicians were a part of the appointment process, he said.

Jaitley said the judgement says protection of the judiciary from political persons was essential in striking down NJAC.

(With inputs from PTI)