The Supreme Court in a recent verdict struck down the Constitutional Amendment which sought to create a National Judicial Appointments Commission in which the government would have a substantial say for appointment of judges of the Higher Judiciary on the ground that it posed a threat to the independence of judiciary, which is a Basic Structure of the Constitution. The judgment has created quite a stir and is naturally discomforting to the Modi government, which was trying to dilute and destroy public accountability institutions such as the CIC, the CVC and now wanted to control the judiciary as well.
Arun Jaitley has further stoked the fire by his recent Facebook Post in which he condemned the judgment as “tyranny of the unelected”. Jaitley, being a lawyer of experience, knows well that the judiciary was created by the Constitution as an independent unelected body to protect citizens’ rights against the tyranny of the elected. The major function of this unelected body, apart from settling disputes, is to review actions of the executive and the legislature to protect the fundamental rights of the citizens. Right from its inception, the judiciary has, on innumerable occasions, struck down executive and legislative actions on grounds of violation of the fundamental rights of people as well as because of arbitrariness, unreasonableness, etc. Thus, the Supreme Court, in striking down the impugned Constitutional Amendment, did what it was created for and what it has done in the past.
In fact, all of us, including Jaitley, have had recourse to the power of judicial review of courts. During the times of Emergency, Jaitley himself moved the Court seeking the writ of habeas corpus following his detention. Further, Jaitley applauded when the Supreme Court struck down the 39th Constitutional Amendment by which the Indira Gandhi Government sought to immunise election of the prime minister from the purview of Judicial Review. Thus, the Court has always, in invalidating unconstitutional executive and legislative acts, performed its role as a knight against the tyranny of the elected. In criticising the judgment as overreach by the judiciary, Jaitley has allowed his present political position in the government to overpower his understanding of the Constitution and the role of the Judiciary under it.
Prashant Bhushan is a senior advocate who argued the case against the NJAC on behalf of the Centre for Public Interest Litigation.