Over the past month, I’ve been researching on the judiciary and its role in the modern day Indian democracy. While I am in the process of writing a paper on the same, what you’d find below are some preliminary deliberations on the theme.
In the 17th Century, when King James I stated that his will was supreme, Lord Coke replied by quoting Bracton, a medieval scholar monk, “Rex non debet esse sub homine sed sub Deo et Lege” – “The King ought not to be under any man, but under God and the Law”. The story of this exchange is said to have echoed through the years as a symbol of judicial courage in establishing the principle that all those who govern are subject to the supreme law.
In the Indian context, this would reflect upon a well established notion that all the three branches of the government are subject to the powers and limitations of the Constitution. While the Court has consistently harped on this doctrine for over seeing the functions of the executive and the legislature, it has somewhere down the line failed to realize that it itself too is a part of this doctrine. In the above statement, I specifically refer to judicial activism which I think is wrong. Wrong because if there does exist a theory of constitutional limitations, then there is no justification for the usurpation of legislative law- making power when all it is meant to do is to interpret and apply the law. In Vishaka and Vineet Narain, the justification that they gave was that they were merely filling the gaps as the legislative and executive had failed to do their duty. Most may argue that this process was the need of the hour and is right even if unauthorized, but I disagree. In a democracy, the Court is never meant to be a popular institution, it is the legislative that is the people’s representative and they alone have the mandate to make the law and this power in no way can be exercised by unelected representatives. If the legislative does not perform its duty then they can always be thrown out in the next election process.
More and more we see today that the Court is becoming a people’s institution; that is, it is taken upon itself the task to respect the mandate of the people, something it is never meant to do. Courts must decide cases and limit authority to that aspect itself. It is the parliament that is the conscience of people’s liberties, and judges are only supplementing that. Essential policy must come from the parliament only and others must only fill in the gaps. Today’s argument that the executive and legislature are not doing their duty is a dangerous argument. If people’s representatives make mistakes, it is for them to correct it by a democratic process. Prof. Madhava Menon opined that vast judicial/ democratic powers are sometimes exercised by a wafer thin majority of single and division benches. Questions arise if whether we are to be ruled by the decisions of such judges? What is the position of the judiciary in a democratic representative government?
At present I am in no position to answer the above posed questions as the research process is still on but I’d like to say that somewhere down the line this is linked to the issue of where a theory of judicial supremacy exists in India or not. The Constitutional framers never intended it to exist and unlike in America (Marbury v. Madison), in AK Gopalan, we specifically disapproved of it. The actions of the judiciary over the past few years, nevertheless seem to suggest a different story.
The interference of the Court is not just with the law- making process but also with its involvement in political questions in the democratic process. The most recent example of this is the ‘Jalikattu example’ that I can think of. The Court had no business to over rule its earlier order of banning the sport just because there would be flagrant violations of the decisions and the state of Tamil Nadu would not be expected to control it. The Court is to give decisions on the law, the state is obligated to implement it and not give excuses otherwise. The TN gov. was to support the Court and not the people. What was worse is that when the Court overturned the order and consequently the PETA people blindfolded a Gandhi statue, they charged them for contempt in a move to assert their authority. Hah! Surely this could have been done in the first instance when the sport was banned and charging those who performed the sport for contempt.
There is an apparent crisis of authority because we don’t know which way our courts are going. Crises occur when authorities don’t do what they are meant to do within the limitations sanctioned upon them. With the present ‘popular path’ that the Court is treading, giving over bearing opinions in places not meant to be done (eg: aravalli golf case), engaging into political questions and the arbitrary use of contempt, surely there is a crisis of authority that needs to be resolved at the earliest. The above are just few of the issues; in my opinion their representation sufficiently demonstrates the fact that we need to address this matter asap.