Amid the ongoing tussle between the judiciary and the government over appointment of judges, Finance Minister Arun Jaitley today said appointments taking place today are not happening as envisaged originally.
“You cannot interpret the Constitution to give it some purpose by giving a possible meaning which is different from language, but you cannot say exactly the opposite.
“That is why the appointments made today are happening differently than originally envisaged,” he said delivering a lecture on ‘Separation of power among organs of state’ at a workshop on the Constitution in the Lok Sabha Library.
He said though the Constitution says the President will appoint the judges in consultation with the Chief Justice, the same has been interpreted in different ways.
This, Jaitley said, has been interpreted as Chief Justice recommending and government appointing, the Collegium recommending the names and thirdly, as whatever said, it will be binding on the President and government has no role in appointments.
“You cannot interpret the basic structure of Constitution as just the opposite,” he said.
Jaitley, however, said the three organs of democracy have their powers separated and no one institution can be superior to the other and the judiciary cannot become either the executive or the legislature.
He said he has been a critic of the apex court judgement on NJAC and has disagreed with it publicly, adding though it is right on the basic principle on maintaining independence of judiciary as part of basic structure of Constitution, it cannot be superior to the other organ.
“An elected Parliament is also a part of the basic structure, an elected government is also a part of basic structure and a Minister and the Leader of Opposition are also part of basic structure.
“In order to protect and defend the primacy of one basic structure, one cannot allowed to steamroll on the other parts. It is this lack of balance can upset this whole theory of separation of powers,” he said.
A former Law Minister, Jaitley said courts can review an executive order and strike down the action of executive or legislature, but it can neither become the executive nor the legislature.
“It can’t discharge their functions. It has a power to quash, it does not have the power to direct the legislature,” he said, adding that the power to quash has to be based on conventional principles.
“It cannot quash on the ground that I think the alternative proposition is a better one,” he said.
“In terms of laying down judicial guidelines, you are actually having a judicial legislation,” he said, taking a dig at judicial overreach.
He said though the court is entitled to review of executive orders, “The court has the authority to tell the executive to act as per law, but court is not entitled to tell the Executive that now I will discharge your functions.”