Step by step, brick by brick, the edifice of India's legislature is being destroyed. Arun Jaitley minced no words in this outburst against judicial overreach in the case of NEET 2016 examination last week, while participating in a discussion in Parliament, and has only re-emphasised this government's unhappiness with over this issue many times since then.
On Monday, he lashed out at the judiciary again, saying courts cannot substitute the executive and begin exercising executive powers.
A case in point: The brewing tussle over a decision by the Supreme Court to bar states from conducting separate entrance exams for medical courses.
"There must be fair opportunity for everyone to compete (in medical entrance tests). Some state governments say boards are unequal or languages are unequal. The manner of holding medical entrance exams is in the policy domain...health ministers of state are meeting on this issue and will take a decision keeping the courts' ruling in mind," Jaitley said while interacting with journalists at the Indian Women's Press Corps on Monday morning.
The SC had ruled that undergraduate admissions to medical courses can only be done through the NEET (the National Eligibility and Entrance Test), turning down an appeal by state governments and medical colleges to modify its earlier order.
That the NDA government is, rightfully or wrongly, in conflict with the judiciary has been quite evident recently. NEET is one example, another would be the apex court asking the Centre to create a new policy on handling drought and set up a new disaster relief fund. Jaitley was earlier quoted saying “We have the National Disaster Response Fund and the State Disaster Response Fund and now we are being asked to create a third fund. The appropriation bill is being passed. Now outside this appropriation bill, we are being told to create this fund. How will I do that? India’s budget-making is being subject to judicial review.”
One can write newspaper editorials criticizing the government and if that doesn't suffice, vote the government out in the elections or even challenge any decision of the executive in the courts, Jaitley explained today. But are similar democratic rights available to any citizen of India if he wants to appeal against a court decision?
"When courts exercise executive powers, no judicial review is available, no possibility of public criticism is there and the electorate also do not have any right to reject this decision of the judiciary through voting....this element of activism must be blended with restraint within the judiciary," the finance minister said.
More recently, the Supreme Court intervened in the Uttarakhand episode and effectively told the Speaker of the Uttarakhand Assembly how to do his job, including the counting of votes in the trust-vote. On this specific issue, Jaitley again said that though judicial review is a legitimate space available to the judiciary, "Lakshman Rekhas have to be drawn by institutions themselves".
That there is a major conflict brewing between the Centre and the judiciary is evident from Chief Justice TS Thakur's comment; he was quoted by the The Times of India as saying that at a time when people are languishing in jails and others are crying for justice, the government can't be "sitting over the proposal (on judges' appointment) for more than two months".
"...It is actually the protection of the rights of the people for whom the laws were made that you act. It is not for any personal glorification that the court act, it is for the enforcement of these laws. I don't know but I think time has come when you do audit of the performance of the government, when we need to do audit of the government by some processes."
No government will, obviously, take kindly to the judiciary seeking to review its performance when the electorate anyway does that periodically.
Published Date: May 16, 2016 06:39 pm | Updated Date: May 16, 2016 06:39 pm