Open Letter to Finance Minister Shri Arun Jaitley on his Attack on The Judges

You could not respond with courtesy and respect due to the judges of the Supreme Court in your puerile attack on the Judgment dated 16th October , 2015 declaring your favorite National Judicial Appointments Commission Act of 2014 (NJAC) void and unconstitutional. While you concede that independence of the Judiciary constitutes the basic structure of the Constitution of India as an unquestionably correct proposition you accuse the court of ‘transgressing into erroneous logic.’

Yes the judges were wholly right in their aversion to a law minister and two ‘ eminent persons’ without any precisely defined qualification except their approval by two politicians both unhappy with judges not being subordinate to the executive. You conveniently forget that Article 50 of the Constitution was intended to exclude all executive interference in judicial appointments.

Today the executive is the biggest threat to the fundamental rights of citizens and the government and its appointed bureaucrats are the biggest litigants defending the irregularities, corruption and unconstitutional actions calculated to injure and impoverish the common citizen. You have totally forgotten the 1993 judgment of a nine judge bench particularly the judgment of Justice Pandian. This was binding on this bench and you are too small a person to ignore it and find fault with the judges who are and were bound by it. After describing the Prime Minister and Law Minister as the priceless gifts of providence to India. You will be plucked by any examiner in a LLB examination if you exalt your Law Minister representing a key basic structure of the Constitution.Having flattered the Prime Minister and Leader of Opposition who helped you to get this awful Act passed in Parliament you paid your respectful homage to Parliamentary sovereignty. Your whole piece is just plain legal gibberish and poppycock. I am avoiding the term which many persons will use for it: Bullshit. 

I will concentrate on one line in your piece to show how little you know of the Constitution of India and law in general. That line is “The majority opinion was understandably concerned with one basic structure – Independence of the Judiciary – but to rubbish all other basic structures by referring to them as ‘politicians’ and passing judgment on a rationale that India has to be saved from its elected representatives: the judgment has upheld the primacy of one basic structure – Independence of the Judiciary – but diminished five other basic structures of the Constitution namely Parliamentary Democracy, an Elected Government, the Council of Ministers, an elected Prime Minister and an elected Leader of the Opposition.” 

I am concentrating on only your greatest error – a manifestation of your total ignorance of Constitutional law i.e. ‘Supremacy of Parliament’. You have accused the majority judges of practicing ‘tyranny of the unelected’. 

This is abuse amounting to contempt. The majority judgment in this case has been attacked on television as well as in other media. It is not that Hon’ble Judges have faced elections and have failed. It is the Constitution which has consciously rejected election as the method of selecting judges and the expression ‘unelected’ conveys a false impression and is intensely insulting. 

The further insinuation is that the judgment is a deliberate act of cruelty against the people of India. Whether or not this Hon’ble Court takes appropriate action under the Contempt of Courts Act, I don’t care. But it may not be a bad idea to remind you that having fought an election and having lost by margin of over one lakh votes you should have been more careful and humble in making the kind of criticism that you have indulged in. 

The system of elected Judges has been tried elsewhere and I believe that it has produced some good jokes. The most prominent joke going around is that in a certain state, the Democratic Party found a judge who was paralysed from the waist downwards and invariably, in election, he won the sympathy vote. He triumphed in four successive elections, but on the fifth, the manager of the Republican Party walked up to his boss and said, ‘Sir we have found a solution to our problem’. He asked, ‘what is it?’ ‘Sir , this time we have found a judge who is paralysed from the waist upwards’.” In an article written by me in 1999 I have referred to this current joke and the Article is at Page 97 of my book Conscience of a Maverick. Even a LLB student, and I claim to be in touch with many students in India and abroad, knows that the old thesis of Professor Dicey written in 1885, that the Parliament of England is sovereign is no longer accepted whole heartedly even in England. A leading judgment of the House of Lords in the case of Jackson vs. Attorney General reported as 2005 UK HL 56 has held that Dicey statement of law has been considerably modified. Though all the challenges posed against the doctrine of parliamentary sovereignty are for the most part self imposed and therefore open to reversal, this is a somewhat weak ground for saving the doctrine even in England. But so far as India is concerned it is very clear that the doctrine does not exist at all. In an article from Wikipedia, which is appended hereto (https://en.wikipedia.org/wiki/Parliamentary_sovereignty),after discussing cases from UK, Scotland, Australia and Canada reference is made to the current position in India. So far India is concerned the doctrine is held as totally out of place. Everyone knows that under the Constitution of India, Parliament cannot impose any unreasonable limitations on the fundamental rights of a citizen. The Parliament of India, except in some very rare situations cannot legislate at all on matters in the very long list of State subjects in the relevant schedule of the Constitution. The judiciary has the right to annul laws which are not in conformity with the Constitution. Thus Parliament of India is a non-sovereign body. It is entitled to respect but it does not have the supremacy which you have chosen to attach to it. Moreover all laws which are in conflict with rights of citizens under Article 19 are void if adjudged unreasonable or not advancing certain declared objects. 

Please understand that a Parliament whose legislation is expressly made subject to Judicial Review is not like the British Parliament of which Prof. Dicey was speaking in the last century. Grow up and learn Mr. Jaitley.