This article has been written by Vishwas Agarwal, a final-year law student at the West Bengal National University of Juridical Sciences, Kolkata.
One of the three main parts of Indian democracy is the judiciary. The legislature and the government are the other two pillars. The Indian judiciary is also the last word on how the country’s constitution is set up. It protects fundamental rights and acts as a conscience for the normative values that the government sets. Since the French Revolution, the number of people who want a democratic form of government has grown by a lot. Many states became democratic after fighting for their freedom.
India chose to have a democratic government, with a written Constitution and a welfare state. In his book “The Spirit of Laws”, Montesquieu said that tyranny happens when a lot of power is held by one person or a small group of people. In this way, the role of the judiciary is important to protect a democracy from tyranny and set up the rule of law. It makes sure that the government doesn’t do things for no reason.
Era of the 21st Century
In the 21st century, the role of the judiciary goes beyond just interpreting the law. It is also seen as a tool for good government and promoting democracy. Judicial governance lets judges use social engineering to decide in favor of a more progressive society. For example, India’s Supreme Court used the “polluter pays” rule to protect the environment. It leads to sustainable development when natural resources are used in a smart way.
Aside from protecting the environment, it keeps the other parts of the government in check. In the S.R. Bommai Case, for example, the Supreme Court of India set rules for the imposition of Governor Rule in states in order to make things fair. Some issues need a different point of view and more care than what the Constitution says. For example, the decisions in the Triple Talaq case and the Sabarimala case made sure that equality and women’s rights were protected.
During the COVID-19 pandemic, the Delhi High Court sent a notice of contempt to the Centre over the issue of oxygen. The court did its part in micromanaging the pandemic by setting the oxygen quota and how it was distributed. In the same way, the Uttarakhand High Court reprimanded the state government for letting the Kumbh Mela happen against the advice of scientists and without following standard operating procedures. A study shows that there is a direct link between the justice system and the growth of the economy. In democracies, this means that judicial governance is a must.
Safety of the Constitution: Essential for a Democracy
“A democracy is a government of the people, by the people, and for the people,” said Abraham Lincoln. A functional democracy is one in which the government is chosen in a peaceful way and can be changed by the people using a free and fair voting system. In this case, the Indian judiciary plays an important role in making sure that elections are free and fair. In this case, the Supreme Court looked at a report from the Association for Democratic Reforms (ADR) that says 43% of the MPs elected in the 2019 general election have a criminal record.
So, the Supreme Court told parties that their candidates for the Assembly and Lok Sabha elections must publish their criminal records and explain why they chose suspected criminals over good people. In 2017, the Supreme Court of India asked the central government to stop making politics a crime by setting up special courts to try criminal cases against politicians in a timely manner. In the same way, the Supreme Court said that negative voting is a voter’s constitutional right and told the government to add the “NOTA” option to electronic voting machines.
According to the ADR report, the quality of parliamentary debates is getting worse, more MPs aren’t showing up to work, and only 35% of MPs were able to keep their seats in the 2019 general election. This shows that parliamentary democracy is getting worse. So, the courts have often helped shape laws through judicial activism by giving advice to Parliament.
For example, the Supreme Court set out Vishakha guidelines about sexual harassment at work. Later, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 was passed to make these rules official. So, it fills the gap left by the government.
Protection of the Vulnerable
“A chain is only as strong as its weakest link,” says Thomas Reid. It shows how important the weaker parts of society are. In other words, the chain’s strength is only as strong as its weakest link. Protection for women, children, minorities, transgender people, and older people shows how mature a country’s democracy is. The judiciary looks out for the interests of those who are weaker. For example, the NALSA Judgement calls for social justice for transgender people by giving them special rights.
During the COVID-19 pandemic, the judiciary told the government to pay “minimum” ex gratia of Rs 1 crore to each official who died from the pandemic because they were working at a panchayat election. To protect the interests of poor people, the Kerala High Court put a cap on how much COVID-19 treatment can cost in private hospitals. In the Indira Sawhney case, the Supreme Court backed up the social justice that affirmative action gives to the OBC community. In the Rohingya case, the Supreme Court said that Rohingya could not be deported until the right steps were taken.
Cog in the Wheel of Progress
People often say that judicial governance goes against Article 50 of the Indian Constitution, which says that there should be a separation of powers.
“The State shall take steps to separate the judiciary and the executive in the public services of the State,” says Article 50.
In the Ram Jawaya case from 1955, the court said, “Our Constitution does not allow one organ or part of the government to take on duties that are really the job of another.” It means that the three parts of the government should have different responsibilities.
In the Deoki Nandan Aggarwal case from 1991, the court said that it did not have the power to make laws. People also say that judicial governance goes against the idea that judges should be limited in what they can do. It tells judges to be careful about how much power they use. Even the way judges are chosen is seen as not being democratic by some. Even Dr. Ambedkar didn’t like the collegium system, in which a judge picks another judge. People also think it’s strange when a group of people who didn’t vote for the government try to limit its power.
Aside from these, the courts don’t know much about administration, unlike the administrative authorities. For example, the Supreme Court said that BS-IV cars can’t be registered after April 2020. It doesn’t take into account how this order will affect India’s economy, which could slow its growth. The courts also don’t have the right tools to handle sensitive and complicated issues. Too much criticism of the court makes the honest and responsible people who work there feel bad, and it goes against the idea that democracy is for everyone. Jumping into other people’s business without permission wastes the court’s time and causes the number of pending cases to grow.
But with the doctrine of basic structure, the Supreme Court of India has set up true constitutional government by protecting the Constitution’s basic ideas. Lord Bryce said, “There is no better way to judge how good a government is than by how well and how independent its judicial system works.” It means that a strong democracy has a judiciary that is independent, fair, and does its job well.
People call the judiciary the “Watchdog of Democracy.” It is now the most powerful body and is thought to be independent so that it can make sure that every Indian citizen gets fair treatment and justice. The only part of our government that is seen as special is the judicial system, which is kept separate from the legislature and the executive branch. It is the third organ. The other two organs can keep watch, but they can’t stop the judiciary from doing its job.
As the guardian of fundamental rights and the guardian of the Constitution of India, the judiciary has the power to throw out any law that, in its opinion, goes against the Constitution of India. The power of judicial review makes sure that neither the Legislature nor the Executive can go against the rights and interests of the Indian people.
In a democracy like India’s, it is very important to have a strong judiciary. People are being treated unfairly more often these days, which is something we all know. There is unfair discrimination going on, so the legal system needs to step in to stop it.
Because of this, it’s important to help people feel safe in their own country and homes. Those in power are kept in check by the courts.
- Montesquieu, The Spirit of Laws, 1748
- M.C. Mehta vs Union of India and Ors., AIR 1987 965.
- S.R. Bommai v. Union of India, 1994 AIR 1918.
- Vishakha and others v State of Rajasthan, AIR 1997 SC 3011.
- Indra Sawhney & Others v. Union of India, AIR 1993 SC 477.
- Rai Sahib Ram Jawaya Kapur And Ors. vs The State Of Punjab, AIR 1955 SC 549.
- Union Of India And Anr vs Deoki Nandan Aggarwal, 1992 AIR 96.
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