SC discharging constitutional obligation, not tyranny of unelected: Justice Ganguly

New Delhi: Even as Finance Minister Arun Jaitley sought to brand the Supreme Court judgement striking down the National Judicial Appointments Commission Act and the enabling 99th Constitution amendment as "tyranny of the unelected", former apex court judge Asok Kumar Ganguly said that what it did was its "duty", which it is mandated to discharge under the Constitution.

"Well I don't agree with the minister. Under constitutional provisions, it is always within the province of the judiciary to examine the validity of an act or even the validity of a constitutional amendment. This power of judicial review has been expressly granted to the judiciary by the Constitution. This is clear from article 79", Justice Ganguly told a news agency on the phone from Kolkata, where he has settled down after his retirement.

While Justice Ganguly disapproved of Jaitley's choice of words, former Supreme Court judge Justice B Sudershan Reddy refused to join the issue and Justice AK Patnaik tried to make light of it, saying it was normal for a parliamentarian faced with an adverse verdict to criticise the court.

Describing Parliament a "feature of the Constitution", Justice Ganguly said: "There is no question of challenging the supremacy of the Constitution and there is no tyranny of the unelected".

Justice Ganguly, who, along with Justice GS Singhvi, was part of the bench that had on February 2, 2012, cancelled 122 2G licences on the ground of being allocated in an "arbitrary" manner, said: "Parliament is a feature of the Constitution, it does not interpret the Constitution and it is given to the judiciary to interpret the Constitution. Therefore if the judiciary finds any law is unconstitutional, it is its duty to say so."

"This constitutional dispensation must be accepted by all, especially by a minister who assumes office by taking an oath to uphold and preserve the constitution. The judges of the Supreme Court, by their judgement, have just upheld the the Constitution and law."

A five-judge Constitution bench of the the Supreme Court on October 16 struck down the 99th amendment and the NJAC Act as unconstitutional and void, restoring the collegium system for appointment of judges to the higher judiciary. The court also sought suggestions from the bar for the improved functioning of the collegium system. The hearing on the same will take place on November 3.

Holding that "Parliament is sovereign but is subject to the Constitution", Justice Ganguly said: "The sovereignty of Parliament is not questioned by the judges but the laws made by it have to be tested on the touchstone of the constitution. Therefore, when a court declares a law invalid, it does not impinge on the sovereignty of Parliament. It merely does its duty to uphold the Constitution in exercise of its power of judicial review."

Not taking a serious view of the views expressed by Jaitley, Justice AK Patnaik, who had, in his July 10, 2013, verdict said that a lawmaker upon his conviction would be unseated, noted that Section 8(4) of the Representation of the People Act provided for this.

"It is matter of debate. You can't call it contemptuous. He represents the parliamentarians. That is the view of the member of Parliament. He has the right to tell (whatever he feels). The Supreme Court has delivered its judgement," Justice Patnaik said.

In an obvious pointer that lawmakers do say such things when faced with an adverse court verdict, Justice Patnaik referred to an instance cited by eminent jurist Fali Nariman during the course of a hearing.

Nariman had told the court that in one country, a new Parliament building was being planned and a committee was set up to invite suggestions. One of the suggestions was that it should be ensured that the parliament building should be bigger than the country's Supreme Court building.

Refusing to join issue with Jaitley, Justice B Sudershan Reddy, who along with Justice SS Nijjar had authored the judgement on bringing back black money, declined to join issue with Jaitley, holding: "I will not say anything. I will not join issue with him."

At the same time, Justice Reddy was not on the same page with the constitution bench striking down the NJAC.

"I think the dissenting judgement is correct constitutional view. The discourse adopted by the majority judges is illogical and based on principles unknown to constitutional jurisprudence," Justice Reddy contended.