Vindication of Justice by Judiciary through its Inception of Laws

Pranay Bhattacharya[1]

Abstract

“In democracy, people have lost faith in the legislature and the executive, and their faith lies only in judiciary now” – N. Santosh Hegde

Change is the law of life. We are living in an era of rapid changes augmented by judiciary for the emergence of laws, but the laws so framed have a long road to travel for their implementation in the welfare of public. Therefore, one of the main tasks of the judiciary is the genesis to perpetuate the rule of law. The aim of this article is therefore to explore the potential of judiciary, its rightful use in the aid of maintaining the rules required for the public-policies and its welfare, the possibilities and opportunities that could help the public policy framework by promulgation of rules as well as equip them for the rightful use of laws so put-forth. It also provides insights of achievement of judicial activism required for the discharge of proper judicial functions. This paper further contends that judiciary is the foremost qualifier in the use of law to address the issues of time and bring a change in public arena. Through this article, I infer that the judiciary has been misjudged and confused to mean only for the interpretation of the principles of law forgetting the fact of its role in maintaining the rule of law at the ground level. In short, it traces the part played by the judiciary in maintaining the rule of law and public policy framework.

Key Words:  judicial activism, interpretation of laws, public-policy, role of judiciary

Introduction

The laws and by-laws declared for the general public takes birth from various authoritative social establishments for its acknowledgment. Diverse kinds of social orders rely on various sort of social organizations for setting up and making the legitimate declarations. For this role, the institution of judiciary has been set up as the third arm of the country for maintaining the rule of law. For this, it comprises of different court systems elongated throughout the nation.

There is no hypothetical or jurisprudential articulation as respect to the particular and adept meaning of maintaining of rule or policy making by the judiciary  but it could be comprehended by the choice of what the judiciary sets to establish what is constitutional and what isn’t .For instance the ongoing judgment on the triple talaq case which was pronounced unconstitutional by the honorable Supreme Court, along these lines making a landmark judgment and changing the role of judicial activism in India as a guiding principle of law through judiciary.

As a legal institution the judiciary acts as a “watchdog”, in keeping up the public policy of the country. So, we may say the Judiciary is that arm of the nation in a democracy, which is vested with the legal capacity to make, constitute and apply law to other subordinate establishments, by using the mechanism of solving disputes and conflicts between parties. Therefore, we can say that it is a framework of webs consisting of bar, bench and courts for maintaining the rules and regulations of a nation.

The role of Indian judiciary

The Role given to Indian judiciary cannot be over emphasized just to the impediment of making and interpretation of by-laws. It is the total mediator of the grundnorm and is entrusted with the errand of determining the scope and power of the government additionally the states, and what binds them under which law of the constitution of India. At the end of the day the judiciary assumes a part as a gatekeeper of the constitution and the popularity based process for framing its rules.

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Further the judiciary assumes a vital part by keeping an eye that each organ of the nation be it government or private is consenting to the necessities of rule of law, the essential importance of which is everything is done according to the rule set out by the constitution and the judiciary.

With everything taken into account, the judiciary has a pivotal stroll on-part in administration of justice. Be it the results of elections challenged by discontented parties, be it the prosecutors who thumps the entryway of justice or whether it’s the impeachment of highest of highest officials of the country including the president, vice-presidents or governors.  The powers of making the by-laws, its interpretation and in addition the jurisprudential articulation of stare decisis(precedents) cannot be ignored as the basic and most fundamental duty of the judiciary.

Thus the role of judiciary is of the best significance in maintaining the administration of law in a nation for its advancement. It is the only body in which powers are vested for exploiting the resources of laws, case by case. In meeting out this crucial task of making the laws, the judiciary is assisted by several of its other branches by the exchange of its judicial decisions, knowledge, experience, scope, expertise between different jurisdictions. The quick extent of improvement of the public-policies and the laws has just been conceivable because of the quantum leap due to the evolution in the institution of our judiciary and partly due to the proclamation of requirement for rule of law and its compelling elucidation.

One of the zones where the judiciary has lacked in its exploration is the maintaining the rule of law on the sweeping level where the local policy making bodies and the governments have encroached on these principles of law and the judiciary have been withdrawn from providing a clear road to the understanding of significance of such laws.

But, the achievement of judiciary at a universal sense in making the rules can be applauded by its dedication and direction of all wings of the administrative powers of the country – executive, legislative, judiciary and all other collaborators. For the success in the interpretation and application of rule of law in making the public-polices depend upon the participation of society and the role of judiciary in sewing those threads which makes the fabric of law, which cannot be ignored as it forms couch of justice, equality, freedom, responsibility, rights, duties and solidarity. It is the promoter of administration and maker of reasonable harmony between each subject the country.

But the various needs of action for maintaining and interpretation of effective rule of law and regulatory framework the judiciary needs to comply with:

  • Mould the rules, regulations and laws befitting the conditions of the nation for the development of policies into actions not only by ordinances, control and command but by also following up normative framework.
  • To effectively coalesce the laws propounded from time to time in enforcing the economic, scientific, social, political as well as cultural principles framing general societal rules.
  • The laws enacted by the judiciary are not only important at the national level but also essential for making international treaties and agreements that binds counties together.
  • The executive, government and the legislative with the support of each other should build up such managerial and judicial procedures for the remedy and redress of the general public that may not encroach their rights and obligations and be taken after as per the tenets set up by the judiciary.
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The judiciary not only has a run in governing the public policies of a country but also in the explication, exposition, interpretation and enforcement of rules and regulations and development of institutional and legislative regimes for the vindication of public interest. A well informed judiciary in the field of conventional and contemporary rules of law is a noteworthy power and asset in the development of public and human rights of the nation, in expounding the judicial framework and vindicating the privileges of nationals.

Maintaining rule of law through judicial activism

The subject of judicial activism has been a matter of conflict in many countries like India. There have been numerous instances of backing off the procedure of courts and making obstacles in obstructing the intensity of the courts. As per the critics, courts take down the powers of various independent organizations and institutions allotted to them whereas some say that they merely perform their legislative function according to the grundnorm.

But all in all, it is an essential auxiliary of judiciary because it safeguards the public interest of a country as opposed to private players. Courts cannot elucidate a written law in the constitution with its substantive power; in this way, the courts must interpret the actual motive of making these statues by the draftsmen. As for the constitution, the judiciary must take into consideration the constitutional relevance of the political, economic, social and cultural schema.

The judiciary ought to be flexible, vocal and audible in making up the public policies rather by following the same principles of law given birth by founding fathers of the constitution. Or it should be allowed to decipher the statues of the composers as indicated by the conditions and the circumstances existing at that common time instead of following up what have been encircled before them during the contemporary times.

But if judicial activism goes missing, the grundnorm will impede and left barren of its core powers essential for the growth and survival of the normative power of present era. The base of public policies relies on the judicial activism and the role of courts in couching it, for proper functioning of a democracy.

Those who conceive that judiciary to the limited application of the pre-existing legitimate rules to the given circumstance, tend to liken indeed a magnanimous or dynamic interpretation of a statute with activism. Whereas, those who conceive it as an extensive part of making rules of law, anticipating it to supply meaning to different open textured expressions in a composed structure and apply modern meaning as required by the changing times, ordinarily consider judicial activism not as a distortion, but as an ordinary function. Thus, maintaining the judiciary as a part of open arrangement in making decisions that have suggestions on legislative issues and results, including themselves in making the rules of law and framing public policy

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How do judiciary make the rule of law and its drawbacks?

Judiciary actively effectively partakes on the development and execution of rules, which is the reason this autonomous branch of the nation has been criticized for being too politicized. The judges too are treated as political candidates far from being independent and make political promises out of their positions to fulfil political agendas of particular state to the majority party or the party in power. Therefore, the judiciaries have stretched a large amount of influence in politicizing the rules of law according to the state and its circumstances; by their power of application and establishment of authoritative rules.

The actions of the judiciary are always influenced to the political decisions taking down on the ground level. The legal choice towards a state influence people in general life, but also acts as a guardian of rules and regulations. It uses its mechanism of solving disputes among parties and individuals, how proper resources are required to be allocated and the evolution and development of rules for making future decisions of the country and as for the states. Thus the judicial decisions get affected from time to time of how different rules can be interpreted according to the cases given like, whether to offer remuneration to the abused party or whether discipline is required for the casualty with a specific end goal to discredit equity.

Along these lines, the judicial structure becomes a forum where individuals seek to propel their objectives for coordinating with legislative activities and for disposing societal assets. On the other hand, people who do not have political capacity to impact the approach on making decisions of the executive and the legislative authorities may introduce their goals as lawful approach with a specific end goal to look for help from the judiciary by their framed rules.

Conclusion

Now and again when the governing bodies and the officials of the nation neglected to play out their obligations dependably, the judiciary had mediated to protect the rule of law on democratic values and provided justice to the nationals. Connoting the part of judiciary in maintaining the rule of law and securing the fundamental rights, the democracy in India continues to draw breath only because of its judiciary and its contribution in the realm of law. This article outlines the establishment of what the judiciary in India has achieved overtime and whatever is left of the nation by its execution of rule of law played out by judiciary. In types of matters, for example, the privileges of the general population, equal treatment under the watchful eye of the law, security against over the top assertion, the judiciary of India has sufficiently given components to guarantee that the rule of law is taken after for maintaining the public policy. Through its choices the judiciary has strived to fortify these systems and guarantee smooth justice conveyance to all the citizens of the country. Issues, for example, outdates enactments and stuffed courts are nevertheless little obstacles and bodies, but the judicial system of India is striving towards resolving these issues with the point of accomplishing a framework where there are no obstructions to the smooth task of maintaining effective rule of law.


[1] Student, 1st year, Maharashtra National Law University, Aurangabad.