Judiciary's Role & Power; Vital for good governance

By Dhurjati Mukherjee. Dated: 10/16/2019 8:19:16 AM

Open Forum

There has been for long a serious debate about the Judiciary's powers and whether it is going beyond its reach of interference in the powers of the Government. It is no secret that ruling parties have resented judgments of the apex court when these go against government policies. In fact, independence of the judiciary is now a challenge not in India alone but in other countries too.
Recently, the British Supreme Court in a significant ruling decided it has the power to review the Prime Minister's decisions when these undermine Parliament and stymie debate. It ruled as illegal Prime Minister Boris Johnson's suspension of Parliament and introduced the concept of judicial review to the Westminster system, which India largely follows. "The court has already concluded that the Prime Minister's advice to Her Majesty was unlawful, void and of no effect", stated Baroness Hale, its President.
Experts note the UK Supreme Court judgment's significance shouldn't be missed. It makes clear that the leeway for political executive to subvert convention is limited. Prompting Congress MP Shashi Tharoor to tweet: "In the name of parliamentary majority, a party cannot use Parliament's own powers and privileges to undermine itself. In short, Parliament cannot be induced by its own majority to commit suicide". Some legal experts are worried the judgment could set a troubling precedent, opening doors to a form of judicial review which is widely accepted in the US, wherein the Supreme Court actively interprets the Constitution. Britain, by contrast, relies on an unwritten set of traditions and conventions which have treated a sovereign Parliament as the supreme law of the land.
Respect for Judiciary is well-established in our country, more so after some momentous orders passed by it, both by Supreme and High Courts. But the ruling establishment, not just at the Centre but in most States, is not quite satisfied with the rulings. Obviously, given present trends of intolerance rising in the country, the establishment would want the judiciary to toe line, which unfortunately for it is not happening. Thus, there seem to be various attempts made to throttle its voice.
Recall, way back in 1987, in its report, the Law Commission recommended increase in judge-population ratio to 50 per million plus India achieve a judge-population ratio of 107 per million by 2020. If these had been acted upon, India would have had its judge strength of 110,071 on 31 December 2015. However, the strength on said date was mere 21,607. If nearly three decades are not enough, it is perplexing for Minister Gadkari to ask Niti Aayog when the recommended ratio of 50 million will be achieved. And can the Aayog find out when 3 crore-odd pending cases would be solved? Also, which authority can testify why accused languish in jails for delays in trials obviously due to low staff strength?
In High Courts, where government are the biggest litigants, the vacancy in judges' posts has been hovering around 37 to 40% for the last five years. At present, the SC collegiums' recommendations for appointment of 40 judges and nine Chief Justices are pending with the government-- pointer enough of the importance the government attaches to judiciary.
And, while the country has seen a steady trend to curb independence of various institutions, the same cannot be done with the judiciary, barring attempts being made to delay judges' appointments. The same scenario is manifest in most States viz appointment of magistrates and judicial officers in lower courts, impacting pending cases which affect the common man. Another aspect of court rulings are manifest when directives of Green Tribunals are ignored and there petitions follow stating its orders are being violated. The scant regard for its orders, obviously to facilitate the interests of the business community, is well known.
In the midst of this, the need for good governance is an accepted fact and the judiciary's role is crucial. One may refer to Justice Chandrachud's observation that even despots recognise the legitimacy that comes with judicial checks on their power. Echoing Justice Mathews's remarks, he pointed out 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".
Similarly, Justice Beg, in his interpretation of the basic structure doctrine in Indira Gandhi case, had shown that judicial review is an integral part of good governance. Also former 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 has, time and again, justified the principles of the basic structure doctrine by appealing to core elements of what it argues is needed for good governance.
However, it is distressing to note that the government has been resorting to dubious ways to curb the independence of those, who are not willing to toe the line of the ruling establishment and taking the help of judicial action. Obviously, they have not been successful in most cases as the judges upheld the Constitution and the democratic polity existing in the country.
The paradigm of Indian judicial system is testimony to the manner in which it can contribute to good governance, which is sadly lacking. Indian jurisprudence has insisted upon enforcement of various rights, even of persons suspected of involvement in grave crimes. These are guaranteed and include right to life & liberty; right against torture or inhuman degrading treatment; right against outrages upon personal dignity; right to due process & fair treatment before law; right against retrospectivity of penal law; right to all judicial guarantees as are indispensable to civilised people; right to effective means of defence when charged with a crime; right against self-incrimination; right against double jeopardy; right of presumption of innocence until proved guilty according to law; right to be tried speedily, right to freedom of thought, conscience and religion, etc.
As former Chief Justice YK Sabharwal recently observed "The approach of judiciary in India has time and again been that while it may be appropriate that the courts show due deference and margin of appreciation to the opinion formed by the executive, any State action making inroad into the personal liberties or basic human rights of an individual must invariably be subject to judicial scrutiny which would rest on objective proof, relevant material in accordance to law and through a procedure that passes the muster of fairness and impartiality."
In fact, one can very well say that the judiciary has played an important role in ensuring good governance, probably much better than the other two organs of the State. It is, however, necessary that it be allowed fair play and complete independence, more so after the recent British apex court order.
(INFA)

 

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