Jaitley’s flawed logic | Judiciary’s ‘overreach’ a necessary balance

    Finance Minister Arun Jaitley has every right to believe and tell the Opposition that the job of dispute resolution provided in the GST Bill need not be handed over to the judiciary even though judges enjoy greater credibility and acceptance than, say, politicians and bureaucrats in settling tax and other disputes. Jaitley is also justified in questioning the need for having another drought fund when two such funds already exist. But instead of arranging relief for the drought-hit, the core issue on which the Supreme Court has pulled up the Centre, he offers excuses like lack of Parliament-sanctioned money.

    Being too clever by half, the lawyer in Jaitley knows how to twist arguments. And this he does to cover up recent political, constitutional and administrative lapses. The GST failure is all too apparent. How does having judges to hear tax cases tantamount to a “surrender of legislative jurisdiction to the courts”? This is how he argues: “With the manner in which encroachment of legislative and executive authority by India’s judiciary is taking place, probably financial power and budget making is the last power that you have left. Taxation is the only power which states have.” Then he makes the final assault: “Step by step, brick by brick the edifice of India’s legislature is being destroyed.”

    Presumed judicial overreach is an issue the executive is unhappy about. But it is not as serious a threat to democracy as was the executive’s attempt, backed by the Opposition, to undermine the judiciary’s independence through the NJAC, which was rightly struck down by a Constitution Bench. Jaitley had called it “tyranny of the unelected”. On Wednesday he sought NJAC-type Opposition cooperation on GST. The Supreme Court’s Uttarakhand snub a day before perhaps still rankled him and provoked the fresh tirade. There is no judiciary vs legislature issue at work. If judges at times cross the Lakshman Rekha drawn by the Constitution, usually an executive failure or political mischief provokes it. A sturdy judiciary may at times seem like an irritant but judicial vigilance over possible executive waywardness is an imperative.

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