Role of Judiciary in Maintaining Rule of Law

Priyadarshi Jha[1]

Abstract

This Research Paper is an attempt to accentuate the role of Judiciary in India, in upholding the virtues imparted by the Concept of ‘Rule of law’, which was propounded by Albert Venn Dicey, who was a British jurist and constitutionalist theorist. Rule of law is a theory, propounded by Dicey, construes the idea of supremacy of law, equality among citizens and there is a constitution, which with the help of judiciary safeguards individual liberties. U.K and India, are two very fundamentally different Nation, where the former is a homogeneous one and the latter is deeply graded society. Hence the application of this concept may differ and can be a strenuous task for the various organs of the government. India is a country of heterogeneous nature, which rests upon the bedrock of plurality, multifariousness, sense of camaraderie which traces its genesis from the idea of unity in diversity. India’s constitution envisages the ideas of liberty, equality and fraternity in all facets of society. These multitudes of ideas look good in theories but in reality it produces a grim picture of India. It starts with the episode, where majority overawes the minorities, tries to dominate at each and every stance of life where they can. Several instances are there where minorities are clobbered to death, on ground of just mere suspicion of consuming beef. Here state with the help of police machinery orchestrate such killings to garner meagre amount of vote and thenceforth infuses hate in the name of religion, which lead to gross human right violation. It definitely portrays an abhorrent picture of India, where majoritarian view superannuates the basic right to live a life in a dignified manner. The abovementioned example proffers a reasonable question which circumscribe the practical feasibility of ‘Rule of law’ in India. But the picture is not that bleak, The Judiciary plays a central role in upholding the virtues imparted by the concept of ‘Rule of Law’.[2] The Judiciary acts as a protector of rights of the citizens guaranteed by the law of the land and the constitution. The court can declare any law which transgresses a fundamental right as invalid. In India the judiciary has the power to issue writs in the name of habeas corpus, prohibition, mandamus etc. Here the author has tried to juxtapose the status quo of India and the role of Judiciary in a democratic setup. Author has also tried to link the role of judiciary with the various aspects of society and Rule of Law. Towards the end the author has tried to suggest some recommendation for the enforcement of the Concept Rule of law.

Introduction

“The rule of law is the basis for any democracy. And without the rule of law in democracy, you have chaos” – MelesZenawi (Ex- Prime Minister of Ethiopia)

It is understandable from the above-mentioned thought, that it’s Rule of law which thwarts a democracy from becoming a mobocracy. Rule of law which construes equality among masses, so as to stop a democracy from degenerating into a mobocracy, where majority haunts minority. Preamble of the Indian constitution is framed with the great care and deliberation so that it reflects the high purpose and noble objective of achieving equality in society. Preamble is a part of constitution, which acts as a floodlight for the State to establish a Sovereign, Socialist, Secular, Democratic and Republic State. Article 14 of the Indian Constitution gives Rule of law a concrete form, which says “all are equal before law”. While defining the basic structure of the constitution in case of Keshavananda Bharti Sripadgalvaruvs State of Kerala, Supreme Court held that the Parliament under the Indian Constitution is not supreme, in that it cannot change the basic structure of the constitution. It also declared that in certain circumstances, the amendment of fundamental rights would affect the basic structure and therefore, would be void. Hence Supreme Court in a way upheld the supremacy of law. The Rule of law can be summarized as under: –

  • everyone is equal in the eyes of law.
  • there is no privileged class or groups in the eyes of the law.
  • no one is punished unless the guilt is proved in the court of law.
  • there is common law for everyone.

It is clear from the meaning of the concept that it focuses on establishing an egalitarian society, wherein all peoples are given equal preference and no person or group of person are given special prerogatives. In a country like India, where separation of powers works with full swing, it becomes incumbent on the JUDICIARY to safeguard the individual’s right, from the arbitrariness of the government, resulting from their policies and regulations. The legislature is the law making body of India, which is assisted by executive for better implementation of the policies. The Government is elected by the people for their welfare, but there are absolute chances of resulting that elected government into a corrupted form and arbitrary decision are ought to be its result. This slowly leads to the effacing of belief of people from the administration, but the Judiciary revives the lost faith of the people by forestalling the arbitrary policies of the government, through the process of checks and balances. Hence Judiciary plays a pivotal role in safeguarding individual right and validating the virtues given by a democratic setup.

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Rule of law and constitutionalism

[3]Rule of law is the supreme manifestation of human civilization and culture and is a new ‘lingua franca’ of global moral thought. It is an eternal value of Constitutionalism and inherent attribute of Democracy and good governance. The term ‘Rule of law’ is derived from the French phrase ‘la principe de legalite’ which means the ‘principal of legality’. It refers to ‘a government based on principles of law and not of men’. The concept of rule of law is inextricable from any society, which assimilates the virtues of equality, fairness and non-arbitrariness. It underscores that state is not governed by the elected or nominated representatives, but it is ruled by laws.[4] The origins of the Rule of Law theory can be traced back to the Ancient Romans during the formation of the first republic; it has since been championed by several medieval thinkers in Europe such as Hobbs, Locke and Rousseau through the social contract theory. Indian philosophers such as Chanakya have also espoused the rule of law theory in their own ways by maintaining that the King should be governed by the word of law. The formal origin of the word is attributed to Sir. Edward Coke. The firm basis for the Rule of Law theory was expounded by A. V. Dicey and his theory on the rule of law remains the most popular.[5] Dicey defined the Rule of law as, “….with us every official, from the Prime Minister down to constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen….. ” The three pillars of the theory are-

  1. Supremacy of the law as opposed to arbitrary power. All are ruled by the laws. Law alone can punish those who are guilty.
  2. Rule of law means equality among citizens. Nobody is above law. No privileged class enjoys any special status in the eye of the laws.
  3. Rule of law also means that constitution is with us. The principles of constitution safeguard individual rights. And judges play important role in safeguarding rights and liberties of individuals.

In a nutshell the importance of the Rule of law is enumerated as under-

  • Rule of law establishes democratic ideals in society.
  • Rule of law establishes the sense of equality among all.
  • Rule of law prevents any arbitrary exercise of power.
  • Rule of law postulates Constitutionalism. Constitutionalism means having limited government.

The concept of Constitutionalism purports the idea that the state is governed by a Constitution, which is the supreme and indomitable law of the land. It lays down a restricted form of government and rule of law as opposed to arbitrary and all other despotic form of rules. In other words, Constitutionalism is a political philosophy in which the functions of government of a state must be in conformity with the provisions of the constitution. Therefore, the actions of government must reflect constitutionality.

Separation of power and position of judiciary in the mechanism of checks and balances

Montesquieu, in his book The Spirit of Laws, stressed on the point that there must be separation of powers among all the three organ of the government if liberty is to be safeguarded, the basic reason being that, if a same person or same organ holds all the powers, chances of getting it corrupted and debauched are high and hence chances of liberty getting curtailed increases ten folds, both for the organ and for individual. The edifice of democracy rests upon three pillars of the government that is Legislature, Executive, Judiciary.The powers and functions of these organs are defined in the constitution of India, categorically. For the stability of a Constitution, there must be a separation of powers. In separation of power the Judiciary is bestowed with different functions which are necessary to maintain rule of law, and hence our focus should be on the functions-

(1) Firstly, as an interpreter of the constitution to solve any substantial question of law and to interpret the constitution, when it requires (“Constitution is what the judges say”- SC, Advocates-On-Record v. Union of India)

 (2) Secondly, as the guard of fundamental rights which are guaranteed by the constitution to its people; and

(3) Thirdly, to resolve the disputes which have come by way of appeals from the subordinate courts also disputes involving centre and states.

If all the powers of the three organs are concentrated, the system of tyranny or dictatorship may emerge. Also if the work done is separated, the efficacy of the organs will increase and hence leading to a competent system of Governance.

Checks and balances

It is the mechanism to make the theory of separation of powers workable. All organs of the government must be under checks and balances. Each organ keeps a vigil on the other and terminates their transgressions. This can be explained from Indian perspective-

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Legislature-laws passed by the parliament must muster the assent of the president. President may use his veto power to reject the law. Supreme Court can also review the law using the powers of judicial review.

Executive- President makes appointments with the advice of Council of Minister (Members of Parliament). The President can be impeached, by the Parliament.

Judiciary- Judges are appointed by the President. Judges can be impeached or removed by the Parliament.

Role of judiciary

The theory of checks and balances and Separation of power are pre-requisite concepts which are of paramount importance in explaining the role of Judiciary in sustaining Rule of law. Crucial role of the Judiciary can be discerned from its various functions from Judicial Activism, Judicial Review (along with writ enforcements) and pivotally from the Judicial pronouncements.

Judicial review and writs

Marbury v. Madison[6] was the first time the Supreme Court declared something “unconstitutional”, and established the concept of judicial review in the U.S. (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the “checks and balances” of the American form of government. As in India Judicial Review is incorporated under Article 13 of the Indian Constitution and this provision is implicit under the writ provision of article 32 and 226. The main objective of Article 13 is to secure the paramount of the Constitution in regard to fundamental rights and other reasonable rights.[7] It is the power exerted by the courts of a country to examine the actions of the legislatures, executive and administrative arms of government and to ensure that such actions conform to the provisions of the nation’s Constitution. Judicial review has two important functions, like, of legitimizing government action and the protection of constitution against any undue encroachment by the gov­ernment. The process of Judicial Review can be categorised into public law review and private law review. Under the Constitution, legislative and administrative actions can be scrutinised by courts under Ar­ticles 32, 136, 226 and 227. Article 32 guarantees the right to move the Supreme Court if any fundamental right is aggrieved. This can be categorically comprehended by some of the Landmark judgements, which in turn declared some of the profit motivated acts of the parliament to be in contravention to the constitution. Mohd. Ahmed Khan v. Shah Bano Begum, commonly known as Shah Bano Case: in this case Shah Bano, who was mother of five, was divorced by her husband, which brought her onto the street. She approached to the high court and invoked section 125 of the Cr. Pc, which elucidates a women’s right of alimony from her husband, which was denied by the High Court. When she appealed to the apex court, the same was approved and there she won the claim of alimony from her husband. However, this verdict was not digestible for the orthodox Muslim leaders of congress and hence they demanded nullification of the verdict. This verdict evoked criticism and many said that it is in with contravention with Quran. Hence The Rajiv Gandhi’s government came under the pressure of orthodoxies and acted as an appeaser to Muslims and overturned the Supreme Court Judgement by promulgating an act called Muslim Women (Protection of Rights on Divorce) Act, 1986 which diluted the judgment of the Supreme Court and restricted the right of Muslim divorcees to maintenance from their former husbands for only 90 days after the divorce (the period of Iddat, in Islamic Law). They were profoundly criticised by the opposition as “another act of appeasement”. In DanialLatifi v. Union of India, [8]Shah Bano’s lawyer, challenged the constitutionality of the Act, calling it discrimination against Muslim women on the basis of their religion. Under the Act, women were excluded from the protections of the Indian Constitution’s Articles 14, 15, and 21. The Court resolved this constitutionality quagmire by finding that a Muslim husband must pay the “reasonable and fair amount needed to maintain his ex-wife for the rest of her life…in total during the iddat period”, and declared the act unconstitutional. This is evident from the above-mentioned facts that, the act was passed in a hurry and overlooked the view of the Constitution, which in a way defeated the principles of rule of law, which was later on corrected by the apex court. In another case, Indira Gandhi V. Raj Narain,[9] an appeal was filed by the appellant against the decision of the Allahabad High Court invalidating Indira Gandhi’s election on the ground of corrupt practices. In the meantime, the Parliament passed the 39th Constitutional Amendment, which introduced and added a new Article 392A to the Constitution of India, it was stated by this Article 392A that the election of the Prime Minster and the Speaker cannot be challenged in any Court in the country. It can be rather challenged before a committee formed by the Parliament itself. The Supreme Court validated the election of Indira Gandhi but declared the 39th Amendment to be unconstitutional as it violated the basic structure of the constitution, [10]the apex Court held clause (4) of the Constitution 39th Amendment Act, 1975 as unconstitutional and void on the ground that it was outright denial of the Right to Equality enshrined in Article 14, It was held by the Court that these provision were arbitrary and were calculated to damaged and destroy the Rule of Law.  There are umpteen numbers of examples where the Supreme Court expounded the constitution and saved violation of fundamental right violation from the bitter arbitrariness of the government.

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Judicial activism

According to Black’s Law Dictionary judicial activism is a “philosophy of judicial decision-making where judges streamline their personal views about the policy formulation of the incumbent government”. Let us consider one scenario, wherein Executive has failed miserably, to implement these laws in letter and in spirit, in such affairs if a person approaches the court through the means of Public Interest Litigation (Justice P.N Bhagwati) what shall the court do? Shall the court deny the litigants pejoratively, and say that it’s none of their job, the administrators know their job and how it should be executed. After all the Judiciary is an organ of the government, which is ordained to fulfil the aims of the Constitution and to check the piecemeal approach.[11] In short, judicial activism means that instead of judicial restraint, the Supreme Court and other lower courts become activists and compel the authority to act and sometimes also direct the government regarding policies and also matters of administration. In a nutshell the situation which impels the courts to act as activists can be-[12]

  1. When the Legislature fails to discharge its responsibilities.
  2. In case of a hung Parliament where the Government is very weak and instable.
  3. When the Governments fail to protect the basic rights of the citizens or provide an honest, efficient and just system of law and administration,
  4. When a party in power misuses the Courts of law for ulterior motives as was done during the Emergency period, and
  5. Finally, the court may suo moto expand its jurisdiction and confer on themselves more func­tions and powers.

PIL has acted as a boon for most of the people who are active and vivid for their rights, however there is a shade of misuse, which is leans against this boon- there is an increase in the number of frivolous and vexatious cases, which vitiates the utmost aim of PIL. Hence in wake of that, SC has formulated guidelines to regulate PIL and also fined some of the petitioner to deter frivolous appeals.[13] It is true that on some occasions, courts have overstepped their limits. But, Judicial Activism has done a great service to society.

Conclusion and recommendation

At the end of the paper the researcher would like to conclude and recommend that after all the observation a Judiciary of Independent nature is a must to sustain Rule of law. In S.P Gupta v. President of India, SC held that Independence of Judiciary is a basic structure of constitution. Court should be kept away from the other branches of the government or private group, so as to ensure fair deliverance of Justice. Judicial independence plays a central role in sustaining the democratic structure of any country. A fair and independent judicial system can protect the rights of the citizens against the arbitrary actions of the Executive or Legislature. It is important ensure a laissez faire ambience for the judges for dispersal of justice. One of the important ways to secure Independence can be by ameliorating the tenure and process of selection of Judges. Another way would be by providing life time tenure to judges which frees them and make them independent and give them space to make rulings according to rule of law, even if those decisions are powerfully opposed by fringe groups or against some of the partisan group. India is a highly graded country, where people from all different culture, tradition, religions resides, hence conflict is bound to happen due to rudimentary differences in the different groups, which may often lead to discrimination and violation of rights. Therefore, there is a need of Judiciary which should work on the ideals given by Rule of law, to ensure minimal justice.


[1] 1st Year, 2nd Semester, National Law University And Judicial Academy, Assam.

[2] Kamal Rana, Role and Functions of Judiciary in India Important India (Jun 23, 2018), https://www.importantindia.com/11837/role-and-functions-of-judiciary-in-india/.

[3] Advantage, Comparative Analysis of Rule of Law in India and UK The problem of Prostitution an Indian perspective, LEGALPERSPECTIVE (June 23, 2018), http://www.legalserviceindia.com/article/l457-Rule-of-Law-in-India-&-UK.html.

[4] Hariharan, Acadmike, Rule of Law in India, LAWOCTOPUS (June 23, 2018), https://www.lawctopus.com/academike/rule-of-law-in-india/.

[5] Ibid.

[6] Marburyv.Madison 5 U.S. (1 Cranch) 137 (1803).

[7] Negi Mohita, Judicial Review in India: Concept, Provisions, Amendments and Other Details, Your Article Library (June 23, 2018, 8:45 PM), http://www.yourarticlelibrary.com/essay/judicial-review-in-india-concept-provisions-amendments-and-other-details/24911.

[8] Sharia source blog, Sharia source at Harvard law school (June 24, 2018), https://shariasource.blog/2017/01/23/the-danial-latifi-case-and-the-indian-supreme-courts-balancing-act/.

[9] LAWNN- Law, news and networking , Case Study- Indira Nehru Gandhi v. Raj Narain, AIR 1975 (June 23, 2018), https://lawnn.com/case-study-indira-nehru-gandhi-v-raj-narain-air-1975/.

[10] Ibid.

[11] DNYANESH KUMAR, Short Essay on Judicial Activism in India, Preserve Articles (June23, 2018), http://www.preservearticles.com/2011092714143/short-essay-on-judicial-activism-in-india.html.

[12] Ibid.

[13] B.P. Jeevan Reddy, Judicial activism: a perspective, THEHINDU (June 24, 2018), http://www.thehindu.com/todays-paper/tp-opinion/Judicial-activism-a-perspective/article15212644.ece.