ABSTRACT
Law becomes the medium to get justice and so does serving justice ensures belief and faith on law. It is this interplay of acts of organs of the state that calls for focusing on what remains constant. That is the Judiciary and its role. Thus, the judiciary is the means to reach the end of good governance as it is the judiciary who acts against any of the policies and acts of the government depriving any of the rights ensured by the constitution or any other statute This is how the government and judiciary work together. The judiciary to act as a bridge and suck up this vacuum of poor governance, of inefficiency of legislature and executive by the power of interpretation, assertion and reasoning with application of legal skills and precedents and ensure social justice and protection of rights, thus, ending up by doing the job which should be done by the elected representative institutions. Judicial Governance has evolved in India with 1970’s and introduction of the P.I.L. Various judgements regarding matters of democracy, environment, scams have been brought to justice by the judiciary. If government goes against the judicial acts or advices then, there is dissatisfaction amongst the public, the same public who elects the government and goes to the court incase of disputes. When weighed together, the citizens have the power to change the government but not the judiciary. With constant evolution of the judiciary, what is important to take in consideration while practicing the role of judiciary is to not cross that fine line between judicial activism and judicial overreach. Thus, the present article throws light on how for good governance the role of judiciary is something that we cannot fail to notice.
ROLE OF JUDICIARY IN PROMOTING GOOD GOVERNANCE
- INTRODUCTION :
Governments change in every 5 years, and with a change in their manifestos so does their working styles, the policies and the amendments in the laws. But what remains constant is the Judiciary.Constantly playing its role of upholding and enforcing the law along with being the fundamental protector of the Constitution. India being a quasi-federal state becomes the answer to why the Indian judiciary plays an important role in promoting good governance. Separation of powers , but not rigid separation of powers, gives the power to the judiciary to keep check and maintain balances on the legislature and the executive and allow them to make amendments in their amendments. The Indian state is a place where both statutory laws and judge-made laws based on the interpretation of statutes exists to maintain peace and harmony. When judge make laws, it is to facilitate good governance which the governments fail in either paying attention to that subject or lacks in its practice. Law becomes the medium to get justice and so does serving justice ensures belief and faith on law. It is this interplay of acts of organs of the state that calls for focusing on what remains constant. That is the Judiciary and its role. From past years till present, the power of interpretation, the power of discretion, the power of judicial review, the power of giving judgements on the basis of justice, equity and good conscience, the duty of providing justice and above all being an independent organ makes the judiciary and its office as significant as any catalyst in a reaction. The judgements acting as precedents have not only shaped the various cases but also the law and the rights of its citizens with this continuous evolving and dynamic world.
- RELATIONSHIP BETWEEN JUDICIARY AND GOVERNANCE :
Governance in simple words is how the government functions. But good governance can have various interpretations by various minds of various people. Having no exhaustive definition, the term encompasses all the aspects of human rights, the rule of law, effective participation, multi-actor partnerships, political pluralism, transparent and accountable processes and institutions, an efficient and effective public sector, legitimacy, access to knowledge, information and education, political empowerment of people, equity, sustainability, and attitudes and values that foster responsibility, solidarity and tolerance. [1]
India being a democratic, socialist, sovereign, republic and secular country, the judiciary’s role is amplified by many more times. It is to the court where the disputes are brought and decided upon. The prime minister and a common man are treated the same in front of the court. This is the principle of equality, which if breached then the system of belief on judiciary is shaken. Thus, the judiciary is the means to reach the end of good governance as it is the judiciary who safeguards the human rights and maintain the rule of law in the state ensuring transparent and accountable processes and institutions. With its decisions and judgements so pronounced, it ensures access to knowledge, information, health, education, duties of authorities, working of various institutions and establishments along with remedies to undo the damage done and strict guidelines to ensure implementation and action on law which ensures empowerment of people. As it is the people who themselves elect their representative but in the back of their head, they know even if the government does something irrelevant or wrong, it is the court their footsteps will lead to. The interwoven relationship between the aspects of good governance and judiciary displays the extent to which the role of the judiciary is important in promoting good governance.
The legislature makes the law, but if it violates any fundamental rights, it is the judiciary which declares it null and void. The judiciary by making suggestions and providing guidelines help in maintaining order in the society. It is after the recommendations of the judicial committee headed by Justice Verma, that rape laws were made strict and sexual harassment laws were enacted.[2] Decriminalization of Sec 377[3] sets a paradigm of judiciary and its function. Lastly, the historic judgements like KesvanandaBharati v. State of Kerala[4], ManekaGandhi v. Union of India[5] have changed the perspective of judiciary and so the government and thus the governance. All such judicial practices enforce order and ultimately good governance. The power of interpretation allowed the court and judges to widen-up the spectrum of Art 21.[6]
This practice has given rise to a word “Judicial Governance”. As such using words “judicial” and “governance” is something which is not assimilated because it is not expected by the judiciary to intervene in governance.Thus, if the policies and acts of the government deprive any of the rights ensured under this article, be it education, shelter , food or safety then it is termed as bad law and again the law enacted by the government is under the scrutiny of the law as interpreted by the judiciary. This is how the government and judiciary work together. If government goes against the judicial acts or advices then, there is dissatisfaction amongst the public, the same public who elects the government and goes to the court incase of disputes. When weighed together, the citizens have the power to change the government but not the judiciary.
III. EVOLUTION OF JUDICIARY :
India being a constitutional supremacy nation, the constitution is supreme, and the judiciary is its protector. Had the judiciary been non-existent, the Indian Constitution would have worked as an elected dictatorship. [7]With the basic structure doctrine developed through the past years any law of the legislature or any act of implementation by the executive if breaches any constitutional provision or any practice that is termed as “Basic Structure”, then the judiciary declares the law or the act respectively as ultra vires. In India, unlike U.K. , it is the constitution which is supreme and not the parliament. If there is a parliamentary supremacy then the judiciary plays no major role in governance as the parliament is supreme, itmay or may not adhere to the judiciary. Even the judges are appointed by the lawmakers. In India, the judges are under no obligation of the legislature or the executive, but only under the constitution. Thus, in a way, more than the legislators, the judiciary acts for the people as their representatives for the protection of their rights and prevent any violations of the same.
With the legislature and executive being inefficient in the 1970’s government led by Indira Gandhi where even the judiciary in some way acted according the way the government pleased. With the emergency being imposed and with no law and no order in place, the supreme court judgements being overlooked , the public was definitely dissatisfied, even Indiraji’s assertion that the emergency was imposed for the benefit of the citizens could not get the mandate for coming in power again. Subsequently, in 1980’s the Supreme Court, to correct government’s failure started taking the active role and introduced the concept of Public Interest Litigation. (P.I.L.)The scope of PIL’s being so wide ranging from telecommunicationsto the environment to road safety. PIL’s can be about anything that the government laws could also not keep up with it and also the instrument is so strong that government corruptions could not be hidden from public for long. The 2G– 3GScams[8], the Coal-Scam[9] were all PIL’s.PIL’s filed in matter of environment , be it shutting of factories near Taj Mahal[10] or regulating the activities in the forests, all these are decisions by the judiciary. All this development did not pave its own way. It developed because it was no longer a single-party dominance in center, it was the coalition government era in the country. Meeting on the same thoughts and opinions in a coalition for the law to be formulated is a 100 hours task. All this led the judiciary to act as a bridge and suck up this vacuum of poor governance, of inefficiency of legislature and executive by the power of interpretation, assertion and reasoning with application of legal skills and precedents and ensure social justice and protection of rights, thus, ending up by doing the job which should be done by the elected representative institutions.
- JUDICIAL REVIEW AND GOVERNANCE :
Judicial review is considered as a basic structure. Judicial review is when the court reviews any law passed by the parliament and maintains its accountability and renders a law bad or null and void if it goes against the rule of law. Judicial review is a strong tool to keep a check on public bodies and rendering their accountability if their decisions or policies go outside the powers that have been specified in the Constitution. It maintains effective checks and balances by controlling unriddled, arbitrary or unjust acts taken on behalf of the Executive and the Legislature.[11]The extent of judicial review occupies a vital place deeply rooted in the Indian constitution and is enshrined in articles 13, 32, 131-136, 142, 143, 226 and 246. Thus, even when laws made, it is the judiciary having the final say. The verdict of the Supreme Court on the 99th Constitution Amendment Act and the National Judicial Appointments Commission (NJAC), declaring them to be ultra vires the Constitution is another glaring example when any parliamentary act is overturned as unconstitutional on the principle of judicial review.[12]It is the judicial wing of the state that injects life into law and supplies the missing links in the legislation. Having been armed with the power of review, the judiciary comes to acquire the status of a catalyst on change. [13]
- JUDICIARY AND ITS RELATIONSHIP WITH OTHER ORGANS OF THE STATE :
It is the judiciary who promoted democratic transparency by making political candidates meet fuller norms of disclosure. It is the court only who rather to keep a hung assembly and to clear the doubt of coalitions and majority orders a floor test that too which would be screened live without secret ballots to clean the air and ensure that the state has a government.[14]This brings hope and develops faith for the voters who would select a government and hope for good governance. To keep the relationship of the organs of the state transparent and accountable , judiciary has introduced right to information.Through its office it has ticked the boxes of needs of good governance. The Court relied on Articles 32 and 142 of the Indian Constitution to issue a set of directives to make the CBI more autonomous by delinking it from political control. Article 32 allowed the Court to depart from traditional adversarial proceedings, and Article 142 authorized the Court to pass a “decree or order as may be necessary for doing complete justice between the parties.”[15]
The best instance of the organs working together is the establishment of administrative tribunals. Administrative tribunals are established only when a statute is made by legislature and then all the cases relating to the special subject are heard in the tribunal where the judges are both from legal background and executive background. These tribunals not only reduce the load on the court but also speeds-up the process of the justice delivery. Also, with its multitude of benches sitting on a daily basis, the tribunals as well as the court acts almost as a secondary government, issuing orders in cases that affect almost every aspect of Indian public life. The High Courts take on governance functions similar to those of the Supreme Court in their respective jurisdictions, thereby multiplying the higher judiciary’s reach.The perception that the Supreme Court is frequently more active in India’s daily governance than Parliament is also buttressed by the Court’s calendar.[16]
With the years of protecting and guarding the constitution the role of supreme court in shaping the present is something to laud for. The time has come where judiciary’s role in good governance will have no end, rather it will keep on increasing keeping in mind the dynamics of the national and international laws. It is in my opinion that judicial legislations rather help the legislature in better governance. The parliament meets in sessions, but judiciary is always in function, what judiciary does cannot be ignored on the defense of separation of powers. The ministers representing the executive, the elected candidates as Members of Parliament representing the legislature and the judges of the Supreme Court and the High Courts representing the judiciary have all to take oaths prescribed by the Third Schedule of the Constitution. All of them swear to bear true faith and allegiance to the Constitution.
- CONCLUSION :
With constant evolution of the judiciary, what is important to take in consideration while practicing the role of judiciary is to not cross that fine line between judicial activism and judicial overreach. Both in excess is harmful to the country in whole and questionable on to the country’s profile of being quasi-federal and having separation of powers. Judicial overreach results in judiciary in total sense undertaking practice of both the legislature and the executive. Just relying on the judiciary cannot be the solution, it is only when all three organs work hand-in-hand that will promote growth of the economy along with highlight the role of judiciary in promoting good governance.
[1]United Nations Human Rights, Office of the High Commissioner,Good Governance and Human Rights.
[2]Justice Verma Committee Report Summary and The Criminal Law (Amendment) Ordinance, 2013.
[3]Navtej Singh Johar&Ors. v. Union of India , (2018) 10 SCC 1.
[4]Kesvananda Bharati v. State of Kerala (1973) 4 SCC 225: AIR 1973 SC 1461.
[5]Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR (2) 62.1
[6]Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621 , Vishakha v. the State of Rajasthan, Air 1997 Sc 3011, Vellore Citizens Welfare Forum v. Union of India, 1996 5 SCR 241, Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, 1989 AIR 190, Sunil Batra v. Delhi Administration, 1980 AIR 1579 , D.K. Basu v. State of West Bengal, 1997 (1) SCC 416, Hussainara Khatoon v. State of Bihar, 1979 SCR (3) 532, Shakti Vahini v. Union of India, (2018) 7 SCC 192 , Common Cause v. Union of India, W.P. (Civil) 215 of 2005 Justice K.S. Puttuswamy (Retd.) v. Union of India and Other, Writ Petition (Civil) No. 494 OF 2012, Rudul Shah v.. the State of Bihar, (1983) 4 SCC 141.
[7]Rajeev Dhavan, A Miracle Work in Progress, The Hindu , (January 26, 2018) https://www.thehindubusinessline.com/blink/cover/a-miracle-work-in-progress/article10051346.ece.
[8]Subramanian Swamy v. A. Raja, (2012) 11 S.C.R. 873.
[9]Manohar Lal Sharm v. The Principal Secretary &Ors , (2014) 9 SCC 516.
[10]M.C. Mehta And Anr v. Union Of India &Ors , 1987 AIR 1086, 1987 SCR (1) 819.
[11]Anand Nandan ,Parliamentary Supermacy and Judicial Review: Indian Perspective, Times of India, (September 15,2018)https://timesofindia.indiatimes.com/blogs/les-avis/parliamentary-supermacy-and-judicial-review-indian-perspective/.
[12]Ibid.
[13]Evolution& Growth Of Judicial Activism In India,https://shodhganga.inflibnet.ac.in/bitstream/10603/32340/8/09_chapter%203.pdf
[14] Shiv Sena v. Union of India, Writ Petition (Civil) No. 1393 Of 2019.
[15]Manoj Mate, The Rise of Judicial Governance In The Supreme Court Of India,(January 14, 2015) https://www.bu.edu/ilj/files/2015/01/Mate-Rise-of-Judicial-Governance.pdf.
[16]Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court,Volume 8, Issue 1 , Washington University Global Studies Law Review, January 2009.
