2 The Role of the Judiciary in Democratic Societies

Miss Ms. Meena Panickar

1.Introduction

Democratic societies emphasize rule of law based system of governance. It is comparatively easier to secure justice in these societies. Quite often judiciary is regarded as the guardian of democracy and to that extent there is an inevitable bond existing between judiciary and other institutions of democratic societies. A democratic society is known for its vital characteristics like freedom of speech and expression, minority rights, free and fair elections, access to information, administration of justice, and rule of law. This unit therefore examines the role of judiciary in democratic societies with illustrative references limited to the context of India.

There is a graduation of formal, representative democracy to democracy in the modern sense, namely, substantive democracy. Substantive democracy is known for its emphasis on the protection of human rights. Such a protection cannot be left exclusively in the hands of the executive and legislature which by their nature reflect transient majority opinion. Therefore, the role of judiciary becomes important in a modern democracy. Hard cases create a platform for judges to exercise their discretion. There may be variance in the opinion of judges based on their education and their outlook on the world. Ideological pluralism is the hallmark of judges in democratic societies.

Judging goes through transformation due to the complexities involved in the judicial role. Legal realism, positivism, natural law movement, legal process movement, critical legal studies and the effort to integrate other intellectual disciplines into law have provided new tools to understand the complexities involved in the judicial role. 2 In addition, the process of globalization makes it imperative to refer to ideals and thoughts across national boundaries and legal systems. After the Second World War, there is an increasing expectation from the judiciary. It raises questions about judicial activism, judicial self-restraint, the theory of separation of powers etc. The threat to democracy in the form of terrorism also compels the state to move from passive democracy to defensive democracy.

Learning Outcome

This unit aims at achieving the following learning outcomes:

Understanding the vital link in between judiciary and democratic societies,

Appreciating the role played by the judiciary in the maintenance of democracy, Realizing the role of Indian Supreme Court in maintaining democracy in India.

2.Pre-conditions for appropriate functioning of the judiciary in democratic societies

Some pre-conditions are necessary for judiciary to play a key role in democratic societies3 as indicated below and let us discuss each of these pre-conditions.

2.1 Independence of judiciary

One of the primary tasks of the judges, apart from adjudication of disputes, is to uphold the Constitution and democracy. For this, the judge needs to be independent individually and institutionally. Judge shall be subservient only to law. Independence of the judge as a person is complete only when it is accompanied by institutional independence. In many democracies the institutional independence may be lacking. Independence of judiciary may be clearly specified in the Constitution or may be implied. This may be visible through a number of measures like security of tenure, salary and allowances not to their disadvantage, removal only through impeachment etc. Independence of judiciary may be adversely affected if the appointment process is flawed. Supersession of judges In India in the 1970s was seen as interference by the executive affecting the independence of judiciary. The collegium system of appointment of judges to the Supreme Court and the High Courts were founded on participatory, consultative process to reflect the collective wisdom of the members of the collegium. However, in the recent years serious questions were raised about the very working of the collegium system. It raised questions about the accountability of the judges and the public confidence in the system. Whether the procedure suggested in the Judicial Appointments Commission Bill of 20134 will be a suitable alternative to restore public confidence in the process of appointment of judges and therefore their independence is yet to be seen.

2.2 Judicial objectivity

Judicial objectivity is important for the judge to perform his due role in a democracy. It demands impartiality. Judge shall discharge his judicial function without fear, bias or prejudice. It may be distinct from his individual views. The judge has to comply with the judicial tradition. He has to subscribe to the views and needs of the society. This is possible only when he is free from bias. At every stage of performance, the judge needs to subject his actions and omissions to self-scrutiny. A judge must be capable of looking at himself from the outside and of analyzing, criticizing and controlling himself.5 It is stated that a judge does not operate in vacuum. He is part of the society, influenced by intellectual movements and the legal thinking. He is part of a legal system that establishes a framework for the factors that a judge may and may not consider. The heavier the weight of the system, the greater the objectification of the judicial process.

Can we have a complete judicial objectivity? While accepting some choices over another, the judge is guided by what he considers as proper in terms of fundamental values. To that extent, some subjectivity is necessarily present in his views, influenced by his personal aspect.

2.3 Public confidence

Public shall have confidence in the judiciary. By public confidence we mean the public having faith in the impartiality and honesty of the judges. Public shall perceive of judges as the upholders of Constitution and democracy. However, public confidence is not synonymous with popularity. If judiciary attempts to gain popularity by delivering the verdict in a fashion, it is not an example of public confidence. Rather public confidence insists the judges to act in accordance with law and their conscience. To that extent judging is a way of life with an impartial search for truth. 7 It therefore demands an element of seclusion and restraint on freedom of expression. It is not to suggest that judge shall withdraw from society. He is part of the society in which he operates. In the recent years some controversies surfaced when a just retired judge of the Supreme Court of India accepted the offer of Governorship by the Union executive. Similarly, a sitting judge of the Supreme Court of India was nominated by Government of India to become judge of the International Court of Justice.

• For the judiciary to maintain public confidence the following traits are suggested:
• The judge ought to be aware of the power and limits on the power. The judge must recognize his mistakes.
• The judge must display modesty and an absence of arrogance. The judge should be honest.

3. Relationship between judiciary and other branches of Government

There prevails a constant tension in between the judiciary and other branches of Government. This is due to the specific role assigned to the judiciary in terms of review of executive or legislative action. At times the judiciary frustrates the political goals set by other branches through the exercise of judicial review. How shall the judiciary respond to these challenges or how shall they exercise their review power? Power of judicial review is intended to safeguard Constitution and democracy. This power shall be exercised with objectivity. When the composition or jurisdiction of the court is changed, again the judiciary is expected to act with the same level of objectivity. Level of public confidence goes up when the court is objective.

The tension mentioned above is a natural one. It is better to have such tension to keep up the integrity of the judiciary. Otherwise it may give an opportunity to develop speculation that judiciary is acting in tandem with the executive or legislature due to the quid- pro- quo arrangements. When cherished political goals are struck down by the process of judicial review, it may generate sharp criticism against the judiciary. Some critics suggest that judiciary owes no accountability to any one unlike the other organs of the Government. In many democratic societies judiciary is not an elected body but an appointed one. They have either no constituency of their own or if they have, it is a limited one. Although this criticism is harsh, it keeps a check on the very performance of the judiciary itself to act with restraint and objectivity. Once they act with objectivity and in accordance with law, the public confidence level goes up. In the name of majority, the organs of Government cannot act arbitrarily and therefore the power of judicial review is exercised by the judiciary.

Let us examine some of the factors10 influencing the relationship between judiciary and other branches of Government as represented below:

3.1 Attitude towards the state

Relationship between judiciary and other branches of Government is influenced by the attitude of the people towards the State. It may be that state is perceived as a threat to individual’s freedom. In such constitutional arrangements, the legislature and executive are restrained from interfering with individual’s freedoms, otherwise known as negative rights. In some other cases state is viewed as committed to the realization of national aspirations. Then judiciary acts as public institution acting in hand with the state for the realization of the aspirations of the State and consequently the tension between judiciary and other branches are the minimum. In yet another model, State is considered as a source good as well as evil. It is feared as a threat to the freedom of the individual and at the same time protector of rights of the individual. In such societies, Constitution not only consists of negative rights but positive rights too. Indian Constitution has incorporated this pattern.

3.2 Separation of powers

Democracy nourishes itself within a system of separation of powers. Each organ of the Government works independently within the assigned field. If a single organ is vested with powers to enact laws, execute them and adjudicate disputes arising therefrom, it would end up creating arbitrariness and anarchy. Role of judiciary is therefore limited to interpretation of the Constitution and statutes which would be binding on the executive and legislature. This task is in the form of partnership11 between the drafters of law and its interpreters. The former would occupy the position of senior partners and the latter juniors. By acting as a check on the executive and legislature, the judiciary is restoring the constitutional balance meant by the theory of separation of powers.

Judicial review is a check on the exercise of power by other organs of Government. Separation of powers is not the absolutism of each branch in its own sphere. Such absolutism harms the freedom whose realization is the basis for separation of powers. Tension would prevail among the organs if they do not accept separation of powers in its true perspective.

3.3 Rule of law

Rule of law has different interpretations. In the formal sense it connotes rule by law. But it conveys a limited understanding in so far as it leaves open the quality of law by which governance happens. Even dictatorial regimes are governed by law. The Nazis administered Germany in accordance with law. It is therefore necessary to enrich rule of law in the formal sense with substantive additions. It is social justice based on public order. Such a notion of rule of law strikes a balance between social equality, political independence, economic development and internal order with personal liberty and dignity of the individual.

3.4 Activism and self-restraint

Complexities of activism and self-restraint may be understood better if one looks at the analysis done by Professor Bradley Canon in terms of six parameters:

The extent to which the judge is prepared to invalidate policies that have been determined by democratic procedures,

The degree to which a judge is prepared to change an existing judicial ruling,

The degree to which he is prepared to depart from the intention of the authors of the Constitution and the clear language of the text,

The degree to which the court determines policy and does not limit itself to protecting democratic process ,

The degree to which the court determines policy or leaves its determination to the executive or to the individual, and

The degree to which the judicial decision supplants the considerations of the other branches of the Government.

To him it is more about action and thought process. The inquiry should be to evaluate the role, the court plays in a democracy.

4.Power of judicial review

4.1 Judicial review of statutes

Many of the Constitutions after the Second World War have provision for review of the constitutionality of the statutes by the judiciary. Even in Constitutions where no express provision existed, courts have upheld the implied power of review. Counter arguments may not have sustainability as long as judicial review enjoys public confidence.

By the exercise of judicial review not only a tension exists between the judiciary and legislature but a dialogue operates or continues between them. This may occur when the judiciary strikes down a statute as unconstitutional or interprets the statute in a way not desired by the legislature. In both these instances, the legislature may bring in amendments or override by replacing with a new statute. Shah Bano case is an example to illustrate the point. In the Shah Bano13 case, the Court held that section 125 of the Code of Criminal Procedure 1973, provides for maintenance of children, wife, parents and it includes maintenance of divorced Muslim women. Thus the general law of the land was held to be applicable to the Muslim community too. Section 125 is lays down criminal law and not civil law obligation and to that extent the Court was able to suggest that criminal law is uniformly applicable to all citizens across India. As far as civil law obligations were concerned, the Court stated that the article 44 of our Constitution has remained a dead letter and suggested a common Civil Code. The judgment generated heated debate among the Muslim Community, both progressive and fundamentalists. However, political pressures succeeded in passing of the Muslim Women (Protection of Rights on Divorce) Act 1986. Shah Bano case was an ordinary case in the form of an appeal to the Supreme Court. But the impact generated by the judgment among the Muslim Community created tension for the political class, thereby leading to the enactment of the law. It shows how a verdict by the Court is overcome by the legislature. Whether it is the right course of action expected of the legislative organ in a democracy is doubtful. It is another matter that even the new statute can be subject of judicial review.

The discussion on judicial review of legislative actions is not to undermine the democratically assigned specific filed of activity for the legislature. This is so due to the majority rule based on free and fair elections. Undermining the role of legislatures and overstating the role of the judiciary are dangerous to the democratic societies. Separation of powers shall ensure to retain the balance. Wherever lapses occur, judiciary may step in to restore democratic values.

4.2 Judicial review of executive actions

Executive derives authority from the Constitution and statutes. What constitutes executive in the Indian constitutional scheme is elaborated in the Ram Jawaya Kapur14 decision of 1955.

Whenever the action of the executive is challenged, the judiciary can scrutinize the action and see its legality. Unlawful activities cannot be permitted as lawful as it is done by the executive. Members elected by the people need to show more accountability. Appointment of public officials should go through the scrutiny by the court on the logic that every state authority that makes an unreasonable decision is subject to the court’s intervention and the executive action is no exception to this rule. When the appointment of the Central Vigilance Commissioner was challenged, the Court stipulated the need to appoint people with impeccable integrity to such constitutional posts.

The Court is the professional interpreter of the Constitution and statutes. Executive is the professional implementer. These are the roles assigned in the democracy to the executive and judiciary. It cannot be forgotten by the judges and judges shall not shy away from that responsibility.

The test of reasonableness and its consistent application in all governmental actions will increase public confidence. The yardstick to be applied is not the reasonableness of the judge concerned, but reasonableness of the executive concerned. In the Advisory Opinion on coal block allocation,16 the Court revisited reasonableness in detail in the context of article 14 of the Constitution of India. Proportionality was also developed by the Court along with the reasonableness test to judge the legitimacy of executive action. Both these measures are powerful tools in the hands of the judiciary to realize their role in a democracy.

5.Judicial Responses to Terrorism

Terrorism creates tension between the pillars of democracy namely those ruling the state and the defenders of human rights. As observed17, sometimes democracy must fight with one hand tied behind its back. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and allow it to overcome its difficulties.

Managing this tension is the primary task of the legislature and executive. However, their actions need to be justified before the Court because judiciary has the responsibility to defend and uphold the democracy. Judicial decisions in times of war or internal conflicts or emergencies have greater significance and for that reason judges need to be careful. Decisions of the Supreme Court of India during the time of national emergency were subject to close scrutiny to evaluate the role of judiciary and judges as guardians of the Constitution and democracy. The Election case18 of Smt Indira Gandhi and the ADM Jabalpur decision19 were critically evaluated by Upendra Baxi.20

Affixing a stamp of approval to an unlawful law or executive action would make the judicial decision part of the doctrine of Constitution. It is worth quoting Lord Atkin’s minority opinion during the Second World War:21

In England, amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which…we are now fighting, that the judges…stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

Struggle against terrorism turns our democracy into defensive democracy and even the defensive democracy needs to retain its democratic character. The judges in a modern democracy must remember this point while performing their judicial task. Even while fighting the war against terrorism a democratic state acts within the framework of law and according to the law.

Democracies fighting terror have to strike a proper balance. On the one hand it needs to protect the security of the state and its citizens. On the other, national security shall not be a reason for compromising democratic values and rights and liberty of the individual. Approach of the Supreme Court of India while upholding the Armed Forces Special Powers Act 195822 or the use of Unlawful Activities (Prevention) Act 1964 with its latest amendments to cover naxalite operations23 is criticized for not maintaining the democratic balance.

6.Summary

To sum up, the maintenance of good democratic traditions depends on the continuance of vibrant judiciary. A written Constitution vesting judiciary with the responsibility to guard the Constitution and democratic spirit would secure democratic governance in the country. It is possible through judicial review of executive and legislative actions. Judiciary has to maintain its accountability and independence. Other branches of the Government have to guarantee independence to judiciary. There is an ongoing process of evolving and reforming democratic process in countries like India. Sunil Khilnani24 argues that India did not begin with democratic practices. Therefore, judiciary is instrumental in the maintenance and development of democracy. The basic structure doctrine propounded by the Court in Keshavananda Bharati25 case and holding free and fair elections as part of that doctrine26 are part of the process of development of democracy.

Web Resources:

1. < www.prsindia.org >

2. < http://www.sal.org.sg>

3. < http://digitalcommons.law.yale.edu>

4. < www.jstor.org >

5. < www.india-seminar.com >