No tyranny of the unelected, says Jaitley on NJAC judgment
Jaitley, who was also a law minister, said independence of the judiciary was a part of the basic structure of the Constitution and needed to be preserved. The judgment, however, had ignored several other features of the Constitution. “The most important basic structure of the Indian Constitution is Parliamentary democracy,” Jaitley wrote.
While the order upheld independence of judiciary, it diminished five other basic structures of the Constitution — parliamentary democracy, an elected government, the council of ministers, an elected prime minister and leader of the opposition.
To one of the judge’s argument, who cited BJP leader LK Advani, that the fear of an Emergency-like situation was still there, Jaitley said when the draconian provision was proclaimed in the mid-seventies, it was people like him — the politicians — who fought out and went to prison while the Supreme Court caved in.
“Therefore, for the court to assume that it alone can defend the nation against Emergency, is belied by history,” he said.
Going into the history of judicial appointments, Jaitley said the court had replaced the president’s primacy — as laid down by the Constituent Assembly — with that of the Chief Justice or the collegium.
In striking down the 99th constitutional amendment, the court had decided to re-legislate, which was the job of the legislature. “The court is entitled to do so (quash constitution amendment). While quashing the same, it re-legislated the repealed provisions of Article 124 and 217 which only the legislature can do.” The two articles deal with the appointments of SC and high court judges, respectively.
The court had accepted that the collegium system — a product of the judicial legislation — was defective, it fixed a hearing for it. “The court has again assumed the role of being the third chamber. If there is a problem with the procedure of judicial appointments, have those legislative changes to be evolved outside the legislature?” the minister said.
The Congress criticised Jaitley, saying the senior BJP leader’s “acrimonious attack is a travesty of constitutional sovereignty”.
Two boys, aged 17 and 16, were apprehended and confessed to the Nihal Vihar rape, police said on Sunday. In that case too, the accused were known to the child.
India strengthened its laws to take on sexual violence against women following the fatal gang rape of a 23-year-old physiotherapist on a moving bus in the Capital three years ago that sparked street protests and nationwide outrage. But incidents of sexual assault have not declined significantly.
The country recorded 36,735 rape cases last year, with 2,096 of them in Delhi, while 1,004 minors were sexually assaulted in the Capital in 2014, according to government data. However, experts say the numbers only reveal part of the grim situation as many incidents of sexual violence go unreported in India.
The recent cases are likely to give impetus to the growing demand that minors involved in sexual assaults be tried as adults.
POLICE SAID THE BOY
WAS CAUGHT BY THE GIRL’S MOTHER WHEN SHE RETURNED HOME AND FOUND HIM SEXUALLY ASSAULTING THE CHILD