'The founding fathers very wisely, therefore, incorporated in the
constitution itself the provisions of judicial review so as to maintain the
balance of federalism, to protect the fundamental rights and fundamental
freedoms guaranteed to the citizens and to afford a useful weapon for
availability and enjoyment of equality, liberty and fundamental freedoms and to
help to create a healthy nationalism. The function of judicial review is a part
of the constitutional interpretation itself. It adjusts the Constitution to meet
new conditions and needs of the time.' -S.S. Bhola v. B.D. Sardana
Introduction to subject matter:
Probably, the two highest ideals ever created, by the human mind and spread
throughout the world, are justice and the rule of law. In democracy, the notion
of constitutional morality and judicial values are linked with a plethora of
causes and repercussions of dignity & liberty of an individual. Adherence to the
core principles of constitutional democracy, makes a democratic setup more
In the philosophy of Ambedkar, Constitutional morality would need an efficient
coordination between competing interests of diverse parties and administrative
collaboration to settle disputes peacefully and without conflict between the
many factions vying to achieve their goals at any cost.
So, with the help of this essay, we are going to critically analyze and evaluate
how can the Indian Judiciary, which claims itself to be an independent, watchdog
of democracy and fundamental rights actually play a substantial role in
promotion of Constitutional Values.
Approximately, seven decades ago, we inherited a firmly established justice
system, besides elaborate and codified, substantive and procedural laws from
Britishers. These laws are absolutely time tested. Therefore, we amended them
with appropriate changes whenever & wherever required. Over the years, we have
modified our constitution as per our needs and requirements and with
Legislature, Judiciary also played an equally pivotal role in this.
'Of all the written constitutions in existence, the Indian Constitution is the
lengthiest and most comprehensive one. The Indian Constitution originally
included 395 Articles organised into 22 Parts and 8 Schedules, as opposed to 7
Articles of American Constitution, 128 Articles of Australian Constitution, and
the 147 Articles of Canadian Constitution. The constitution has had various
Parts and Articles deleted since 1951, as well as several new Articles
introduced. The Constitution's final numbered Article is still 448, its last
numbered Part is 25, and there are 12 Schedules as of now.'
Promotion of Constitutional Values:
'It is the function of the judges, to pronounce upon the validity of laws. If
courts are totally deprived of that power, the fundamental rights conferred on
the people will become a mere adornment because rights without remedies are as
writ in water. A controlled constitution will then become uncontrolled.'-
Minerva Mills v. Union of India
Rule of Law:
The substratum of our democracy is the rule of law, meaning thereby, having an
independent judiciary & judges, who can make decisions out of the undue
influence of the legislature and executive, or rather, "the political winds
which are blowing." It's literal meaning is, no person is above the law & is
subjected to the jurisdiction of ordinary courts.
We can say, that the doctrine of rule of law is the base for administrative law.
Even according to Aristotle, this doctrine is centred around the ideals of
justice, fairness & inclusiveness. Today, a well tangled chain of rule of law
has come into existence which includes Independent Judiciary, equal treatment
before law, transparency and accountability in the basic administrative law.
- In the Habeas Corpus Case, as known as ADM Jabalpur v.
Shivkant Shukla, Justice H.R. Khanna, in his dissenting opinion stated
'Article 21 is not the sole repository of life and personal liberty and
during the proclamation of emergency, Article 21 only loses the procedural
power but the substantive power of this article is very fundamental and the
State does not have the power to deprive any person of life and liberty
without the authority of law.'
Its origin traces back to the United States and that too, in the middle of the
20th century. As a result of the government's legislative and executive organs
unbridled and unconstrained behaviour, the notion of judicial activism expanded
quickly over time and gained enormous popularity in India and elsewhere
Since, the cornerstone of all the democracies, is the distribution of powers
among the three organs of the government i.e., Legislature, Executive &
Judiciary but the occasional excessive judicial activism perceives to infringe
upon the rights of the other organs.
In the pursuit of good governance & upholding constitutionalism, it is way very
much pertinent to involve community's participation in order to influence the
legislation, as it is only for the community's welfare. For the endorsement of
the interests of the unprivileged, disadvantaged & marginal sections of the
society, the Indian Judiciary has played the role of an activist quite
The interpretation of article 21, in the case of Maneka Gandhi is a prime
example of Judicial Activism and vigilant Judiciary in the case of upholding
In the Marbury v. Madison case (1803)
, John Marshal (former Chief Justice
of the Supreme Court of the USA), introduced the concept of Judicial Review to
In the Indian context, the power of Judicial Review is explicitly given to the
Supreme Court and High Courts, through the constitution itself. Also, the
hon'ble Supreme Court of India, has itself established that this power
constitutes within the Basic Structure Doctrine, so it can't be withdrawn with
the help of any constitutional amendment. It also takes care of the federal
PIL system (Public Interest Litigation):
Got introduced by Justices P.N. Bhagwati & V.K. Krishna Iyer in early 1980s on
account of a lacuna felt in common public law with equally exorbitant fees. The
terminology "public interest litigation" is basically a borrowing from the
American law, where it was created to give legal counsel to groups that had not
previously had it, such as the underprivileged, racial minorities, unorganised
customers, concerned citizens, etc.
Public interest litigation (PIL) is a legal action brought in a court to
preserve "Public Interest," like pollution, terrorism, traffic accidents, etc. A
public interest litigation can be filed to address when the issues of the
general public's interests are in danger.
Matters addressed under PIL system:
Critique and Constructive Conclusion:
- Bonded Labour matters
- Neglected Children
- Non-payment of minimum wages to workers and exploitation of casual
- Atrocities on women
- Environmental pollution and disturbance of ecological balance
- Food adulteration
- Maintenance of heritage and culture
In the Judicial world only, it is a fairly discussed topic that the judiciary
fails in the timely hearings of those cases which go straight into the heart of
the values of Institutional Integrity, like the case of electoral bonds, but we
should also take into consideration the cases of personal liberty like those of
Vinod Dua and Prashant Bhushan, in which the court has come in rescue of the
One more serious problem is the lack of transparency, in particular, the
appointment of judges, nepotism and corruption in the same. Lack of
accountability and responsibility of the Judiciary and an occasional excessive
power misuse of judicial activism, or rather, judicial overreach.
All these problems are grave and need urgent attention and solution. Let's
strive for a better working of every organ of the government. Let's make our
judiciary more vigilant and careful in each and every sense possible. Let there
be a full-fledged democratisation of the Indian Judiciary.
- SAKET, Role of Judiciary for Upholding Constitutionalism, 4 (2) IJLMH
Page 1096 - 1104 (2022).
- Yash Jain, Judiciary under the Indian constitution, ipleaders, (Aug. 23,
2022, 8:33 PM), https://blog.ipleaders.in/44353-2/.
- S.S. Bhola v. B.D. Sardana, AIR 1997 SC 3127.
- Minerva Mills v. Union of India, AIR 1980 SC 1789.
- ADM Jabalpur v. Shivkant Shukla, 1976 2 SCC 521
- India const. art. 21.
- Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).