In modern period all countries adopting democratic polity and welfare state
concepts, where the administrative authorities are vested with vast
discretionary powers. The exercise of those powers often becomes subjective in
the absence of specific guidelines etc. Hence the need for a control of the
discretionary powers is essential to ensure that 'rule of law' exist in all
governmental actions. The ultimate choice to victim from arbitrary action of the
government is Judiciary. In recent years, courts have risen in power across the
world, and the Indian Judiciary has rightly been pointed to as an example of
this global trend. In many ways the Indian Court has become a court of good
governance that sits in judgment over the rest of the Indian government. This
Article argues that the Court has expanded its mandate as a result of the
shortcomings (real, perceived, or feared) of India’s representative
institutions. The Indian Supreme Court’s institutional structure has also aided
its rise and helps explain why the Court has gained more influence than most
other judiciaries. This Article examines the development of India’s basic
structure doctrine and the Court’s broad right to life jurisprudence to explore
how the Court has enlarged its role.
“There is no better test of the excellence of a government than the efficiency
and independence of its judicial system†- - Lord
Bryce[1]
Democracy is a word more familiar almost all over the world in modern period.
After the French revolution one can witness a huge demand for democratic form of
government in almost all the nations. Through freedom struggles or by way of
people’s revolutions many nations in the world started to establish democratic
governments. Democracy is a political form of government in which governing
power is derived from the people, either by direct referendum or by means of
elected representatives of the people. That’s why one can that democracy form of
government is peoples government. But it is a challenging form of government to
both for people as well as politicians.
The term democracy comes from the Greek language and means “rule by the people
(demo means ‘people’ and cracy means ‘government’ â€. People vote for their
representatives and the one with the most votes goes on to act for the majority;
the majority being the collective people who voted for the representative. That
representative speaks on behalf of the majority who voted him in and votes in
such a way as to embody the will of that majority. However, this system is not
flawless. What about those who are not in the majority? This group is known as
the minority. While the minority is not being indirectly represented by the
politician like the majority, the minority still retains their basic rights and
expects the majority to show consideration for those rights as well. The
minority also knows that while they may not be in the majority at this time they
will not always be in the minority on every issue. The minority accepts that in
order for our government to work competently the will of the people, in the case
the majority, must be fulfilled.
At this juncture the need of the Constitution (written) became one of the basic
points to uphold democratic form of government. Why because through democratic
government state need to balance between sovereign power of the nation as well
as liberties of the people. So, there is a need to follow ‘doctrine of
separation of powers’ said by Montesquieu to maintain checks and balances
between organs of the state. Again there is a need for custodian of the
constitution to uphold spirit of constitution and democratic government, so,
Judiciary started to be recognized as custodian of the constitution in almost
all nations for which India is also not an exception. Being a 3rd organ of the
government Judiciary in the country plays an essential role in maintaining peace
and imparting justice and also for the enjoyment of fundamental rights.
Judiciary is an important pillar for the smooth functioning of democracy and
thereby to establish good governance in a nation. Prof. James Wilford Garner
rightly said that “A society without Legislative organs is conceivable but a
civilized State without judicial organ is hardly conceivableâ€[2].
Constitutional safety for Democratic governance in India
In the dictionary definition for democracy is "government by the people in which
the supreme power is vested in the people and exercised directly by them or by
their elected agents under a free electoral system." In the phrase of Abraham
Lincoln, democracy is a government "of the people, by the people, and for the
people." So, a political system can properly be called democratic only if the
government in power can be peacefully elected or removed by a majority decision
of the people, through fair and open elections. At the same time the values of
democracy one can find where the will of the people shall be the basis of the
authority of government and people’s human rights should be protected by the
rule of law. By recognizing this Indian constitutional framers through
constitution of India provided parliamentary democracy political structure,
which works on the principle of fusion of power and in the making of law, there
is direct participation of the legislature and the executive, it is the
judiciary that remains independent and strong safeguarding the interests of the
citizens by not allowing the other organs to go beyond the constitution.
It
acts, therefore, as a check on the arbitrariness and unconstitutionality of the
legislature and the executive. The word ‘democratic’ used in the preamble
indicates that the constitution has established a form of government which gets
its authority from the will of the people. The rulers are elected by the people
and are responsible to them. Justice, liberty, equality and fraternity which are
essential characteristics of a democracy are declared in the preamble of the
constitution as the very objectives of the constitution. The preamble to the
constitution declares that the constitution of India is adopted and enacted by
the people of India and they are the ultimate master of the Republic. Thus the
real power is in hands of the people of India, both in the Union and in the
State.
Role of Judiciary in promoting democracy and good governance
A) Basic structure theory
Judiciary is the final arbiter in interpreting constitutional arrangements. It
is in fact the guardian and conscience keeper of the normative values and rights
that are authoritatively allocated by the state. In India the major source for
rights is constitution and it is mainly based on the concept of ‘rule of law’.
To ensure the ‘rule of law’ in all governmental activities, higher judiciary
provided with a special power namely ‘the Judicial review power’ to monitor
governmental actions to put them within the limits of constitution.
In this
journey judiciary provided with judicial review power to safeguard rights of the
people from arbitrary action of the government to uphold the democratic spirit
of the Constitution. But there were so many incidents happened in India, which
are threat for democratic governance. Generally ‘Government’ and ‘governance’
are two very similar words – and people are often confused about the differences
between the two. In fact government is a group of people who rule or run the
administration of a country. On the other hand, governance is the act of
governing or exercising authority. ‘Good governance’ is an indeterminate term
used in international development circles to describe how public institutions
conduct public affairs and manage public resources. It involves the process of
decision-making and the process through which decisions are implemented or not.
More over good governance has some major characteristics.
It is participatory,
accountable, transparent, efficient, effective and follows the rule of law. It
assures that corruption is minimised, and the voices of the vulnerable are heard
in decision-making. It is also responsive to the present and the future needs of
society. So, to achieve all these constitutional framers has appointed higher
judiciary as custodian of the constitution. In fact from the commencement of the
constitution Indian judiciary has been playing an admired manner. But it can be
best evident in Indira Nehru Gandhi v. Raj Narayan[3], where the Supreme court
of India applied the theory of basic structure to protect democratic structure.
In this case court struck down clause (4) of Article 329 (A), which was inserted
by the constitution (39th Amendment) Act. 1975 on the ground that it was beyond
the amending power of Parliament as it destroyed the ‘basic feature’ of the
Constitution.
The amendment was mad o validate with retrospective effect the
election of the prime ministers which was set aside by the Allahabad High
court. Khanna, J., struck down the cause on the ground that it violated the free
and fair elections which was an essential postulate of democracy which in turn
was a part of the basic structure of the constitution; Chandrachud, J., struck
down clause (4) and (5) as unconstitutional on the ground that they were
outright negation of the right of equality conferred by Art.14, a right which is
a basic postulate of our constitution. He held that these provisions were
arbitrary and were calculated to damage or destroy the Rule of law.
The Supreme
court has thus added the rule of law, Judicial review power, Democracy, which
implies free and fair election as basic features of the constitution to the
list of basic feature laid down in the
Keshvananda Bharti case[4].
Justice Beg’s opinion in Indira Gandhi supports the basic structure doctrine
with an argument that is both pragmatic in its fear of sovereignty resting
solely in the people’s representative institutions, and idealistic in its
embrace of the Constitution. He found that “our concepts of sovereignty must
accord with the needs of the people of our country.â€
Justice Beg also held that the concept of the Supremacy of the Constitution is,
undoubtedly, more suited to the needs of our country than any other so far put
forward. It not only places before us the goals towards which the nation must
march but it is meant to compel our Sovereign Republic, with its three organs of
Government to proceed in certain directions...
Can we deny (the
Constitution) that supremacy which is the symbol and proof of the level of our
civilization?
In explaining the necessity of a separation of powers in the amendment process,
and by implication within the Constitution more generally, Justice Mathew’s
opinion in Indira Gandhi contrasts a “less civilized†pre-British Indian
sovereign: A sovereign in any system of civilized jurisprudence is not like an
oriental despot who can do anything he likes, in any manner he likes and at any
time he likes. That the Nizam of Hyderabad had legislative, judicial and
executive powers and could exercise any one of them by a firman has no relevance
when we are considering how a pro-sovereign—the holder of the amending power—in
a country governed by a constitution should function. And at the same time in
his concurring opinion, Justice Chandrachud finds that even despots recognize
the legitimacy that comes with judicial checks on their power. He then echoes
Justice Mathews’s remarks that this is certainly true in a modern democracy as
well: The most despotic Monarch in the modern world prefers to be armed, even if
formally, with the opinion of his Judges on the grievances of his subjects. . .
. I find it contrary to the basic tenets of our Constitution to hold that the
Amending Body is an amalgam of all powers—legislative, executive and judicial.
“Whatever pleases the emperor has the force of law†is not an article of
democratic faith. The basis of our Constitution is a well-planned legal order.
Justice Beg, in his interpretation of the basic structure doctrine in Indira
Gandhi, discusses the different checks on sovereign power that have existed
throughout history to show that judicial review is an integral part of good
governance. Amongst several examples, he writes: The ideal King, in ancient
India, was conceived of primarily as a Judge deciding cases or giving orders to
meet specific situations in accordance with the Dharma Shastras.
It also appears
that the actual exercise of the power to administer justice was often delegated
by there are also two International Covenants adopted by the General Assembly
for securing human rights, one is the International Covenant on Civil and
Political Rights and the other is the International Covenant on Economic, Social
and Cultural Rights. Both are international instruments relating to human
rights. It is therefore not correct to say that Fundamental Rights alone are
based on human rights while Directive Principles fall in some category other
than human rights. In Coelho in 2007[5], Chief Justice Sabharwal approvingly
paraphrased Amartya Sen’s argument that “
the justification for protecting
fundamental rights is not on the assumption that they are higher rights, but
that protection is the best way to promote a just and tolerant society.†Whether
invoking natural, moral, historical, or utilitarian grounds, the Court justifies
the principles of the basic structure doctrine by appealing to core elements of
what it argues is needed for good governance. Modern democratic civilization,
and its mandates, are made a bar to Parliament’s constituent powers.
B. Safeguarding Fundamental rights and promoting DPSP [6]
It is well known fact that Indian constitution provided fundamental rights to
promote rule of law. So, to protect these rights Indian judiciary by judicial
review power extended its powers which are evident in many cases. Here it is
important to discuss about Art.21[7] by which court started to recognize all
human rights as fundamental rights. In 1978, the Court added a reasonableness,
or non-arbitrariness, requirement to article 21. In doing so, it created natural
justice or substantive due process in Indian jurisprudence. The next few years
saw article 21 used to outlaw cruel or unusual punishment, relax pre-trial bail
requirements, restrict the conditions under which a debtor can be imprisoned,
create rights against custodial violence and inordinate delays in criminal
trials, and provide legal aid.
The Supreme Court embraced this more populist direction in part to regain the
legitimacy it had lost during the Emergency and in its early decisions, which
often sided with wealthy property owners. The Court was also caught up in the
post-Emergency euphoria, a sense of excitement at the return of liberal
democracy that swept the major institutions of Indian government at this time.
Further, the urban middle class, which had been targeted during the Emergency,
now desired to see a strong independent judiciary to check the state’s power.
The press, which had been reticent to report on Indira Gandhi’s abuses,
increasingly covered not only civil rights abuses, but also other social
problems with new vigor.
Beginning in the mid-1980s, and then much more quickly in the 1990s, the Court
expanded its article 21 jurisprudence even further to try to tackle not only the
problems of the criminal justice system and government repression, but also
social injustices more broadly. A litany of rights were read into the right to
life, including the rights to fresh air and water, land for tribal populations,
protection from environmental degradation, shelter, health, education, and food
and clothing. This new interventionism was born at a time when Parliament and
the country’s other representative institutions were increasingly politically
fractured and viewed as abdicating their governance responsibilities.
The growth
of article 21 jurisprudence also led to the development of a new form of legal
practice, called public interest litigation. The Court relaxed its standing
requirement, allowing any public-minded person to petition the Court on behalf
of anyone he or she perceived as being deprived of his or her rights.221 It also
loosened its filing requirements. For example, when a journalist wrote the Court
in 1982, complaining that certain female suspects were tortured in police
custody, the Court treated the letter as a petition and gave directions to
ensure protection of these women and other prisoners in similar
situations.[8] This action by the Court spawned a practice of persons writing
letters asking the Court to intervene on pressing social issues.
Further, the Constitution’s Directive Principles[9] lay out goals for the
Indian state, such as a living wage, primary education for all, and
international peace and security etc. The Constitution, though, explicitly made
these principles nonjusticiable[10]. This decision reflected Dr. Ambedkar’s view
that all rights should have clear remedies, and that constitutions should not be
filled with “pious declarations†of unenforceable rights. Although the
Constitution did not on its face give the Supreme Court a mandate to enforce
social and economic rights like those in the Directive Principles, the Court
gradually interpreted this to be its role. This evolution, sparked by the
Emergency, built momentum in the face of mass poverty across the country and was
allowed to expand in the governance vacuum created by the country’s
representative institutions. Like the basic structure doctrine, the Court
largely justified these interventions on two grounds.
First, it interpreted an
active role for itself under the Constitution’s vision for controlled social and
economic revolution. Second, the Court appealed to principles of civilization or
good governance that necessitated and explained its interventions. Through the
Court’s right to life jurisprudence, it took on many details of governance, like
ordering more stringent enforcement of traffic regulations or banning smoking in
public places. Indeed, the Court took on so many functions that its right to
life jurisprudence came to encompass more than just protecting life, but also
promoting good governance more broadly. This role is highlighted well by
M.C.
Mehta v. Union of India,[11] the Taj Mahal case of 1997. This case brought to
the attention of the Supreme Court that coal-fired industries around the Taj
Mahal were tarnishing its white marble and polluting the lungs of nearby
residents (although presumably no more than in other areas in India with
coal-based industries). Citing the need to protect this wonder of civilization,
the Court invoked its right to life jurisprudence and ordered that none of the
polluting industries could operate in the immediate area. The Court had
seemingly found the right to life in an inanimate object. Indeed, this case
highlights that what is at stake for the Court in many of its right to life
cases is not so much the right to life as good governance more generally (of
which the protection of life and its basic necessities is only one
part).
Conclusion:
It is the duty of the government as a majority based representatives
for people to protect the democratic character of the India, after that it is
the duty of the opposition to protect autocracy of the government. The
Opposition capitalized on the rhetoric of Political corruption and the important
nuances of the Courts Decisions had no place amidst the anger against the
incumbent and the delirious support for the opposition, prime examples were the
issues of Black Money and Coal Allocation (where interestingly allocations were
cancelled across all Governments!). Such issues were sensationalized and caught
the public imagination ending the reign of the grand old party. The Current
regime however cannot escape the urgent problems of governance ranging from
Regulatory uncertainty in Power Sector, and issues pertaining to manufacturing
to those of acquisition of land, Education reforms and the ever increasing
challenges in Forest Conservation and rising gender crime. Recently the Supreme
Court has reminded our democracy that the jubilance of an election victory has
not allowed us to time travel into a Utopian land of prosperity.
The Chief Justice of India set up a special bench on issues of “social-justiceâ€.
This Bench would look into matters of public interest especially regarding
issues of the underprivileged, public distribution of food and public health.
The Opposition must realize that it has must respond to new forms of governance
and the need is constructive critique. Parliament is the quintessence of
democracy and the opposition the voice of dissent. The Government will promote
each bill and policy as a step towards progress. At the same time it is also the
duty of the every citizen to protect their country like a soldier, whenever
there is a threat to constitutional spirit. If the opposition and citizens fails
to offer worked out alternatives, one can find the Judiciary being a custodian
of the constitution occupying the ‘oppositional’ space in India’s democracy to
protect and promote constitutional spirit and good governance. “In a democracy,
you need to have a strong judicial system. You need freedom of speech, you need
art, and you need a free pressâ€.-Tzipi Livn[12]
End-Notes
[1] Bryce James; Modern Democracies, 1929, P-384
[2] James Wilford Garner; Political Science and Government; 1955, Page 684.
[3] AIR 1975 SC 2299
[4] Keshavananda Bharati v. State of Kerala (AIR 1973 SC 1461)
[5] I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 8617)
[6] Directive principles of state policy
[7] No person shall be deprived of his life or personal liberty except
according to procedure established by law.
[8] Sheela Barse v. State of Maharashtra, (1983) 2 S.C.R. 337, 342. For another
example of a letter being accepted as a petition, see Upendra Baxi v. State of
Uttar Pradesh, (1983) 2 S.C.C. 308.
[9] Under part IV of the Indian constitution Articles from 36 to 51.
[10] Under article 37
[11] (1996) Supp. 10 S.C.R. 973.
[12] Available at: https://www.brainyquote.com/quotes/tzipi_livni_761481?src=t_judicial
Written by:
Dr. Koneru Anuradha
Assistant Professor, Smt. V.D. Siddhartha Law College,
Kanuru, Vijayawada, Krishna District, Andhra Pradesh, India. Pin code: 52007.
E-mail:
[email protected]
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