The Indian Judiciary has emerged as arguably the most powerful and influential court among democratic polities owing to its activism and assertiveness. Since its inception, the Courts have dramatically expanded its role in the realm of rights and governance, asserting the power to invalidate constitutional amendments under the basic structure doctrine that solidified post the Keshavnanda Bharti case, control judicial appointments, and govern in the areas of environmental policy, monitoring and investigating government corruption, and promoting electoral transparency and accountability. Thus, making a long lasting contribution to the system of governance that has impacted the life of the people and the nation. In many ways, it has impacted the nature, scope and processes of public governance and can claim credit for expanding the meaning of the constitution in favour of different segments of the society. It has strengthened Indian federation, catalysed goal achievement, deepened democracy and defended people against excesses of the State. It has acted as a promoter of peace, cordial relations, and a sense of balance and coordination among the government’s various organs.Previously, it was believed that the role of the judiciary was limited to interpreting the laws and regulations and issuing judgements solely from the legal view. This perspective has undergone a substantive change in the recent times.
In the 1980s the judiciary helped develop a new non-adversarial form of public interest litigation aimed at correcting human rights abuses and government failures. Later, in the 1990s, the Court in a series of public interest litigation decisions took control over judicial appointments from the executive to establish judicial independence replacing the participatory consultative collegiums model. In the case Vineet Narain v. Union of India, asserted an active role in investigating and challenging government corruption as it continued to do in the 2G Telecom Scam, the Coal Block Scam and other cases. Like in the case T.N. Godavarman Thirumulpad vs. Union of India, the Court took an active role in environmental policy and development decisions, including major river and air pollution cases, deforestation, and large-scale hydroelectric dam projects. In this case the court assumed the functions of the ministry of forests in enforcing the Forest Act and regulated the activities in the forests of India. The Court issued orders relating to the construction of the dam in the Narmada Dam litigation and identified the environmental and human impacts of that project.The Court has time and again pressured the government through its decisions that recognized rights to food, education, and information to enact new legislation and implement administrative and regulatory frameworks for effectuating these rights and the constitution at large.
The Indian judicial system’s paradigm is a testament to how the judiciary can contribute in good governance. Indian jurisprudence have time and again demanded the enforcement of various rights including the right against torture or inhuman degrading treatment, right to life & liberty, right against outrages upon personal dignity, right to due process & fair treatment before law, 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, in presence of impartial Court of law. While it is appropriate for the courts to show due deference and margin of appreciation framed by the executive’s opinion, any state action that infringes on an individual’s personal liberties or basic human rights and is discovered to be unconstitutional must be subjected to judicial review. Such judgement is based on objective proof, relevant material in accordance to law and through a procedure that passes the muster of fairness and impartiality. It is indeed a matter of great satisfaction that the two other primary organs of the State in India have always respected the jurisdiction of the judiciary to subject every State action to ‘judicial review’. Judiciary has thus played a fundamental role in development and evolution of society at large and in ensuring good governance on part of all the three organs of the state that hold reins of power.
The power of an independent judiciary to review the decisions of the Legislative and Executive organs of the state is considered as an integral part of the concept of rule of law and upholding the constitutional mandate.As a result, the power of judicial review does not need to be explicitly recognized in the Indian Constitution. Article 13(2) of the Indian Constitution states that the state shall not make any law that takes away or restricts fundamental rights. Maintaining and safeguarding the rule of law is fundamental to good governance. However, there have been challenges which have posed a threat to build a society based on a strong rule of law framework within the constitutional charter. The concept of rule of law can be expanded by not only its enactment but also the quality of the law.
As a result of globalization, the constitutional courts have to interpret various international covenants keeping in mind the framework of our constitution which is a n extremely difficult task at hand given the complexity of global players in the market like multinational companies who play a dominant role. Their activities and functions have far-reaching consequences, affecting people’s basic human rights in developing countries, particularly in the area of employment. Unregulated globalization would produce serious consequences in relation to socio and economic rights violating our basic framework and fundamental rights guaranteed to every citizen by the constitution thus, the judiciary often acts as the gatekeeper to protect the society.
In this regard, the Constitutional courts are expected to respect the right to work and the right to fair working conditions, among other things. This has taken on greater significance in light of the overemphasis on competitiveness at the expense of workers’ rights. Such multinational companies often provide a lot of economical boost and development in the country and to promote this the government often grants certain exemptions and concessions. In providing such exemption, there shouldn’t be arbitrariness. Such decisions must be deliberated upon and made with proper expert consultation especially with the people it might affect the most. There cannot be a fair process of globalisation unless it is accompanied by an effective rule of law structure within the constitutional framework.
In the word of the learned Justice K.G. Balakrishnan, ‘the role of judiciary is to constantly evaluate and re-work the fine balance between the rights of citizens and governmental actions. The judicial review adopted by the Constitutional Courts in India has evolved three dimensions firstly, ensuring fairness in administrative action; secondly, protecting fundamental rights and thirdly, to rule on the questions of legislative competence’. It would be apt to conclude that the judiciary is an important space for conducting a dialogue in respect of conflicts arising in the society due to the changing times and difference of opinion but they must be resolved through deliberation. The willingness of citizens to engage with public institutions including the institution of judiciary is a basic requirement for building a vibrant constitutional democracy.
About the author –
This blog has been written by Vedika Shetty, 4th year BBA.LLB student at O.P. Jindal Global University, Sonipat
