Expressing “personal” views on the judgment in a facebook post titled ‘The NJAC Judgement — An Alternative View?’, he said, “The judgement has upheld the primacy of one basic structure — independence of 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 the elected Leader of the Opposition.”

The Supreme Court, by a majority opinion, last week struck down as unconstitutional the NJAC Act and also the 99th Constitution Amendment, which provided for the establishment of the National Judicial Commission to appoint judges of the High Court and the Supreme Court.

“A constitutional court, while interpreting the Constitution, had to base the judgement on constitutional principles. There is no constitutional principle that democracy and its institutions has to be saved from elected representatives. The Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger,” he said.

‘Politician bashing, key to the judgment’

Stating that “few issues” had arisen in his mind after reading opinion of five judges, he said, “Are not institutions like the Election Commission and the CAG not credible enough even though they are appointed by elected Governments?”

The key rationale, he said, behind the majority opinion appears to be that independence of judiciary is an essential ingredient of the basic structure of the Constitution. “This is unquestionably a correct proposition. Having stated this, the majority transgresses into an erroneous logic,” he said.

The judgment argues that the presence of a Law Minister in the Commission and the appointment of two eminent persons in the Commission by a group, which will, besides Chief Justice of India, comprise the Prime Minister and the Leader of the Opposition, will constitute political involvement in the judicial appointments.

Politician bashing is the key to the judgment, Mr. Jaitley said. “Politician bashing is akin to the 9.00 PM television programmes.” Stating that the judgement ignored the larger constitutional structure, he said independence of the judiciary is unquestionably a part of the basic structure of the Constitution and it needed to be preserved.

“But the judgment ignores the fact that there are several other features of the Constitution which comprise the basic structure. The most important basic structure of the Indian Constitution is Parliamentary democracy. The next important basic structure of the Indian Constitution is an elected Government which represents the will of the sovereign,” he said.

They represent the will of the people, he added.

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