South Carolina NJAC verdict based on ‘erroneous logic’: Jaitley

The ambitious NJAC Act, 2014, to replace the 22-year-old collegium system of judges appointing judges was struck down by a five-judge Constitution Bench of the apex court, setting the stage for a potential confrontation between the judiciary and the government.

Government had used this provision recently to appoint acting chief justices in a few high courts. He tells Mayank Mishra and N Sundaresha Subramanian that the verdict of the 5-judge constitution bench has saved the democracy and that he would challenge any future attempt to meddle with the fundamental structure ofthe constitution.

In a Facebook post entitled, “The NJAC Judgement – An Alternative View”, Jaitley said that the opinion of the Supreme Court was final, but not infallible.

The National Judicial Appointments Commission Act was “against the basic features of ous constitution”, though the collegium system is not entirely flawless, top lawyers and legal experts said on Friday. This is unquestionably a correct proposition. Having stated this, the majority transgresses into an erroneous logic. However, all the judges were of the view that the collegium system of appointment of judges, which has been revived, needed improvement for evolving more transparency. Political persons would be obviously guided by their political interest.

The South Carolina held that presence of union law minister in the NJAC would be detrimental, as he can influence the decision of other members and it would be “inappropriate” for him to be a part of the decision-making process in appointment of judges.

Jaitley said the judgement says protection of the judiciary from political persons was essential in striking down NJAC. The party said the new appointment system for judges could have been worse than the existing one.

The collegium system had several flaws as manifested in several instances of irregularities in appointments presented before the court during arguments.

“Surprised by the Supreme Court verdict”. As the President is the head of the executive, this implied a decisive role for the executive in the appointments.

He added that vanity of constitutional acumen undermines its elementary ethos, “Justice above tyranny”? whether or not of particular person or majority, even legislative majority.

It is unfortunate that the union Finance Minister, a senior advocate himself, has chosen an unwarranted expression like “tyranny of unelected” while referring to the Supreme Court judgment. For instance this week the Supreme Court ruled that the nodal national identity card called the Aadhar card, introduced by the previous Manmohan Singh government is not compulsory.

The NJAC and the constitutional amendment had been approved by near unanimity in both Houses of Parliament.

The GBA is seeking the Supreme Court to declare the processes the President used in appointing the two justices as unconstitutional and therefore the Supreme Court should declare it null and void. “The court can only interpret – it cannot be the third chamber of the legislature to rewrite a law”, he said.