Mr Jaitley, You're Being Unfair

The Union Finance Minister's fulmination against the Supreme Court's alleged 'tyranny of the unelected' deserves to be taken seriously. After all Mr Jaitley has been a lawyer of long standing and in Lutyen's Delhi he is known as the de-facto union law minister. Lawyers believed to be close to him were appointed the Attorney General as well as the Solicitor General of India by the NDA Government last year. And above all, Mr Jaitley is both eloquent and acerbic. 

Not surprisingly, his facebook post on Sunday criticising the Supreme Court for turning down the National Judicial Appointments Commission (NJAC) as unconstitutional was picked up by newspapers and published prominently. TV news channels also duly highlighted Mr Jaitley's criticism that in declaring the Constitution Amendment Act and the National Judicial Appointments Commission Act (NJAC) Act as unconstitutional, the Supreme Court had ignored the 'will of the people'.

The 'will of the people', says Jaitley, finds expression in the elected legislature, an elected Government, the Prime Minister and the Council of Ministers. By ignoring the will of the people, he added, the apex court had deliberately hit out at the Constitution itself. Parliamentary democracy and Parliamentary sovereignty both have fallen victims, he suggests, to the apex court's perverse logic.

But a plain reading of the judgment, which spans over a thousand pages, does not seem to support his contention. On the contrary, the apex court appears to have pointed a finger at the 'tyranny of the elected' in passing the two Bills without any significant deliberation or debate. And as the judgment goes at great length to explain, the omissions and commissions in the two legislations, one clearing the deck to amend the Constitution and the other constituting the NJAC, were not quite "innocent". 

The two Bills were first placed in Parliament on August 11 last year. And while the Lok Sabha passed the Bill 'unanimously' on August 13th, the Rajya Sabha passed them the following day. 367 MPs voted in the Lok Sabha and 179 MPs in the Rajya Sabha.

Should such an important legislation been passed in a hurry ? Why was the suggestion that the Bills be referred to a Select Committee ignored ? Since it involved amendment of the Constitution, the Constitution Amendment Bill required to be ratified by at least half the state assemblies. It was pointed out in the Rajya Sabha that till the Constitution Amendment Bill was not ratified by the states and received the assent of the President, the Parliament did not have the authority to legislate and create the NJAC. But the Government and the Speaker chose to 'suspend' the rule in question and went ahead with the voting. If anything, this showed the tyranny of the 'elected'.

The Supreme Court order takes note of the fact that the President signed on the Bills on December 31, 2014. But the Constitution Amendment Act was notified only in April, 2015. By then all the 28 state assemblies had ratified the Constitution Amendment Bill. But going by media reports, none of the Assemblies seem to have deemed it fit to hold a debate on the legislations. Once again it shows, if anything, the 'tyranny of the elected'. The court concurred with Mr Fali Nariman and Mr Ram Jethmalani that the NJAC Act was illegal because the Parliament had no jurisdiction to legislate on it till the Constitution amendment was notified. "You cannot build a superstructure without the foundation". 

The judgment also dwells at length on the Constituent Assembly's debate on Independence of the Judiciary. It notes the concern of Constitutional Fathers to insulate the judiciary from the executive. It points out that the President is not required to consult anyone while appointing other constitutional functionaries like Governors, the Comptroller & Auditor General (CAG), chairman of the Finance Commission or the Union Public Service Commission etc. But that in the appointment of judges, the Constitution lays down that the President must do so in consultation with the Chief Justice of India. The Constitution clearly wanted to treat the judiciary differently and give primacy to the Chief Justice of India.

The apex court also explains that the executive already has a participatory role in the appointment of judges, that the charge of 'judges appointing judges' is misleading. The written memorandum of procedure , for example, lays down clearly that while the judiciary would come up with inputs on the professional ability of the people under consideration, the executive would contribute with information, material and data on their character and antecedents. Nobody can be appointed a high court judge, therefore, without a clearance from the Intelligence Bureau, for example.

Elaborating on the procedure, the judgment points out that while the Chief Justice of a high court initiates the proposal of appointment after consultation with his colleagues, the proposal goes to the Governor, the chief minister, the CJI and the Union Law Minister. The Law Minister then refers it to the Home Ministry and the IB and communicates the feedback to the CJI. It's only at the end of this process that the CJI makes the recommendation to the President in writing.

It's again the Constitution that lays down that although the Governor appoints the District Judges, the recommendation made by the chief justice of the high court is binding on the Governor. Pointing out the Constitutional provision, the judgment wonders how anyone could defend an entirely different system in the case of the superior judiciary. 

'Consultation' mentioned in the Constitution, argued the Attorney General, did not mean 'concurrence'. The apex court ironically points out that although the Constitution holds that 'there will be a council of ministers to aid and advise the President', the phrase is deemed to mean that the council of ministers' advice is binding on the President. 

If aid and advice can be binding and mandatory, surely also the term consultation?