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Tuesday, June 22, 2021

Role of Indian Judiciary in evolution of Indian Democracy

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Did the Indian Judiciary play a significant role in development and evolution of Indian Democracy?

Judicial system administers justice in the name of the state and it is a mechanism for resolution of disputes. The system through out the world varies with regards to the amount of autonomy it possesses, which in turn determines the amount of impact it can have on the society. It is a mechanism of checking powers of the other branches of governance (executive and legislature). U.S is an ideal example of such checks and balances where the autonomy of the court is established in the constitution.

Whereas a country like India sees continuous tussle between different government branches to tilt the balance of power in its direction. In face of such unstable conditions with regards to determination of power, we try to evaluate in this paper the success of Indian judiciary in progressing the democratic norms in the society and what structural difference it has been able to achieve to make implementation of such a system more conducive.
In order to evaluate this success, we have to consider the definition of democracy. In the light of this definition; we can analyze the role of Indian judiciary in advancing the ideals of democracy keeping in mind the evolution of judiciary itself, which is relatively young, compared to other Western judiciaries. Indian judiciary is faced with the tedious task of not only developing its relatively young system but to also make this judicial system coherent with the prevalent and contemporary socio-econ and political system of the West which is always considered to be the ideal system to follow. West on the other hand had the chance to evolve its judicial system in line with the growth in prevalent ideology of the time. Hence, the Indian judicial system has to evolve and also catch up with the contemporary system.

We can define democracy as the right of the people to exercise their political sovereignty either through the citizens directly or through an elected representative which operates through a parliamentary or a presidential system. In such a system we find the presence of a representative legislature, regular and timely elections, and enactment of laws through an independent judicial system and the people enjoy universally recognized freedom (political, speech, press etc) and liberties. Also there is more then one political party competing for the position of power and responsibility. Democracies can vary in the amount of representation and freedoms they give to their citizens. However, integral to the doctrine of democracy is the careful legislation of democracy to avoid uneven distribution of political power. This basically means that there should be a balance of power with in the branches of governance. If any branch is able to accumulate extra power in any way, this can be dangerous for the democracy. The scenario fits exactly in the Indian case, where there is a continuous tussle to limit the extent of judicial review.

Having discussed the characteristics of democracy and what it entails, we can now evaluate the efforts of Indian judiciary to enhance the democratic values over the last sixty years and how in some cases it may have impeded this process. History tells us that for the first four decades, the judiciary was rutted against strong governments of Nehru and Gandhi. They tried to limit the courts power of judicial review by expanding parliamentary sovereignty. However, court was influential even then, when some matter concerned protection of fundamental rights according to the constitution. For example, the court challenged Nehru government’s land reform legislation in favor of right to property as guaranteed by the constitution, therefore, upholding the democratic principle. Another instance where the court upheld the democratic principle was when Indira Gandhi tried to restrict courts use of judicial review to limit parliament’s power to amend the constitution. This attempt was successfully blocked by the the court, hence, keeping the balance of power to an acceptable level between the branches, which is very important for true democratic conditions to prevail. The judicial autonomy is really important because judicial system is the ultimate source to resolve any conflict. The conflict may threaten the democratic principles as various sectors may try to hijack this system for their own personal benefits.

Over the course of first few decades, the legislature and the executive branch became known as highly corrupt. Ministers were indicted of fraud, corruption, abuse of power, being self conceited and incompetent. Things got worse when first Rajeev Gandhi and then Narsima Rao were both personally convicted of being involved in corruption cases. Also gone were the days when congress use to have a majority in the parliament. Early nineties saw hung parliaments, where parties formed government with coalitions. This and the fact that legislature and the executive branch had become less reputable in the eye of the public, the judiciary made a pro-active move in increasing its independency which as we have discussed is extremely important to uphold democratic norms.

The court acted formally to change the balance of power between the judiciary and the executive. The power of selection of judges was shifted from the executive to the Chief Justice, hence making it a big moment in Indian history and a tremendous achievement of the judiciary. No longer were the legislature and the executive influential in packing the courts with nominees of its choice. The judiciary was now better able to guard people’s rights and freedoms and save the constitution from hazardous amendments. This definitely resulted in reaction from the other two branches of governance and there were calls for different steps to be taken to note the ethical conduct of the judiciary. It also resulted in the judiciary being blamed of encroaching on the territory of the legislature and the executive. Judiciary promised to implement in-house procedures for self regulation. However, the important fact was that judiciary had traveled this important distance and evolved into a branch that could better guard the constitution and resolve conflicts. We have discussed the journey of judiciary and how it was able to reach a level from where it could be said to be some what autonomous. However, this was the basic requirement for the judiciary to enter the category of being called democratic. This was the basic tussle between the different branches of governance. What remains to be seen is that during this whole time, was the judiciary able to conduct its main task of resolving conflicts, defending democracy and establishing decisions which could lead to a free and fair society.

We would see on various fronts, how the judiciary was able to do with regards to different democratic variables. Was it able to guarantee the citizen the rights that have been promised to them? Was it able to mediate between various segments of the society? In a nation where all sorts of cleavages are in abundance, a very active role of the judiciary is required to take on this task. Conflicts are expected to prevail in such a society. Rights will be breached and encroached. If this is not enough, the society is faced with further challenges of a capitalist world economy. The pressure from international organizations to conform to their needs and requirements. Other issues include different interpretation of the constitution. Sometimes there is divergence with regards to the interpretation of the constitution. Judges have different ideologies and perspectives. To make things even more difficult the court is not free from political and social influences. Also there has been cry from the socio-economic front that the court has not been able to deal with the issue of equality and wealth distribution. The court has been blamed to be pro-poor and anti rich. It has been blamed of engaging in excessive judicial governance. So the rest of the paper deals with evaluating how successful the judiciary has been in facing of these challenges, and how far the democratic norms were upheld and in what situations were there conflict or short comings.

The first few decades after independence saw the emergence of a strong majoritarian democracy. In such a situation the court was not in a favorable condition to tilt the balance of power on its side against the legislature and the judiciary. However, the court from the very beginning was an exponent and savior of the constitution and its basic structure. It kept protecting its sovereignty and challenged the parliament on issues like land reforms. However, the later years of corrupt government and hung parliaments created a situation where the judiciary, president and the election commission due to the instability of the coalition government found themselves amongst power. They became the hope and aspirations of the Indian masses. We can even see many Indian (Bollywood) movies of these times projecting the judges as heroes and saviors of the country. This new acquired power and shift of balance culminated into judiciary taking actions that some would consider encroachment on the legislature and executives territory. Its actions are termed as judicial activism. It started to play its appointed role as an instrument of governance much more then its traditional role as an institution of justice. Its pro-active role resulted in the court instigating a special PIL(Public interest litigation), whereby anyone can approach the highest court in the country to safeguard the fundamental rights of any citizen. These actions I believe had a great impact on strengthening the democratic norms of the society. The acquisition of rights and freedoms through the enforcement of PIL decisions had a huge relief to the oppressed masses. Democratic theory ensures various freedoms and PIL just did the same. It gave relief to the masses and enforced citizens’ fundamental human rights. The court sought to safeguard the citizens from police torture, prison conditions, and welfare home deregulations and tried to reform these institutions by implicating people who were responsible for these atrocities. T he judiciary was also harsh against those who favored bonded labor. In a democratic society, the existence of slavery is unacceptable. Denying people the minimum wage set by the government although was not implemented; however, many were set free from their bonded labor. The decisions made some ground rules which these administrative institutions of the government were suppose to follow and this had a huge impact on the criminal justice system as well, hence once again strengthening the democratic norm.

The democratic norm and the constitution also emphasize equality. This means that the rights of the minority are also to be protected keeping in mind that excessive loss is not done to other people. Indian Supreme Court has been influential in taking affirmative action to support the less privileged, marginalized and minority cases. However, on the other hand it has been able to limit the extent of this affirmative action as well. All this happened in the phase known as the pre-economic reform phase of judicial activism. The later years of judicial activism saw the court allocating its attention towards other issues like the environment, health, ministerial corruption and restoring the independence of CBI. Some of these factors are aimed towards providing universally accepted rights that people should have. Factors like ministerial corruption and influence of executive and the parliament on CBI had given the other two branches a bad name. Judiciary took upon this as their responsibility and took the initiative of reforming these sectors. A bad democracy was considered more viable then a dictatorship unlike Pakistan. Proper administrative system is the key to smooth working of a democratic system and judiciary just tried to establish this. It is interesting to briefly compare this scenario with Pakistan. In Pakistan’s case, corruption and lawlessness is dealt with military take over rather then judiciary implicating those guilty and refining the system. Such a take over by the authoritarian military regime can barely be called democratic even if the establishment tries to legitimize it.

In the nineties, hung parliaments in India created a fickle and unstable situation. However, I believe that powerful parties in our part of the world tend to view the opposition as a threat rather then a competition and tries to suppress them. Competition should be looked as a chance to improve oneself rather then as a threat. So I believe that although coalition governments are hard to form and sustain, but the chance of using power, like in a majoritarian rule, to gain political excess is limited. Also a true democratic system favors party competition, and the judicial system along with the presidency and election commission has been trying hard to maintain this coalition. This competition might appear to be destructive and unstable in the short run. However, in the long run, this political debate, bargain and deliberation will bear its fruit and India would be on a true path to democracy.

Another great democratic achievement of the judicial system is the support it showed towards various social movements in the society. In the US, the presence of various interest groups is heavy and is also considered to be essential part of democracy. Similarly, by supporting NGO’s and various interest groups, the Indian judiciary has developed a private check on the government. The judiciary supported these organizations by giving decision in their favor, by accepting PIL from them on behalf of the public and by accepting them as a legitimate body. This gave a sense of validity to these NGO’s and encouraged them to continue their effort. With in a period of certain years, the numbers of such organizations has just flourished unprecedented and have already made a significant contribution to the society. These NGO’s and interest groups carry out works that satisfies the very basic conditions of democracy. From capacity building to natural disasters, these organizations are at the forefront of upholding the doctrine of democracy. There are some NGO’s whose function is only to impart education on democracy. So the judiciary by helping these organizations is only helping democracy flourish.

Courts, however, by establishing and strengthening these institutions has created a check against itself as well. The two already established checks that of legislature and the executive is now joined by a third party who has a right to free speech under this democratic system as well. This third party involves many segments of the society whose interests are at stakes. So the courts actions are now even more severely criticized. Most games in society are zero-sum games. One men’s loss is other men’s profit. Therefore, if someone is losing out because of a judicial decision, he will criticize the courts verdict and try to justify his own condition. The court on the other hand has the constitution, the pressure of a capitalistic, commerce oriented society and various political and social factors that has a influence on it. The autonomy of the court although improved is still not ideal and it cannot reach that level as well because there are some things that are unavoidable and will always be there. So the court tends to give decisions that might not be liked by the majority and hence it will be criticized the most and will have repercussions as well. The judiciary has also been blamed and criticized for not giving socio-economic decision in benefit of the poor. The dam case, street evacuation case, the closure of factories near the TajMahal were decisions that ignored socio-economics benefit of the poor class and were more in favor of rich, urban, elitist and capitalist class. So does that mean that when it comes to business oriented, elitist and capitalist decisions, the court has to decide in favor of more capitalist and less welfare approach. The court could have not been an obstruction in earlier land reform cases. It could have decided in favor of people living near the dam, in favor of their culture and livelihood which is also protected by the constitution and the democratic norms. So how is this ruling against the livelihood and socio-economic benefit, democratic? The court could have helped these people settle in some different area and could have made sure that their decision was implemented. But there seems to be a feeling that the court is ruling in favor of western development oriented international organizations, who try to implement the theory down peoples throat with out looking at the indigenous conditions that prevail in that society.

The failure on the socio-economic front makes us realize that not all decisions can be appropriately taken by the judiciary. There are some powers that should only come under the realm of the executive and the legislature. Courts might sometimes be constrained by its limitations discussed above and it is best to leave these issues to the other braches. Otherwise, it will only end up sacrificing one democratic variable in favor of the other. The international organizations like the World Bank and IMF are not exactly in the game for nothing. They are in it for profit as well and so are the countries that support and finance these organizations. Playing chicken with them will only harm the country and they will use their theoretical approach to justify their ideology and make profit from it.

In conclusion, I would like to state that judicial system has been very successful in evolving into the autonomous body it has become. The activism was necessary to deal with a corrupt administration (legislature). The series of events also helped the judiciary evolve into what it has become today. However, with increased power, judiciary must not forget that parliament is in the game for some reason. There are specific roles that each branch has to play. The activism, I believe should not be a permanent phase. It should fade out with stability and development of other branches and as the society becomes better versed with the norms of democracy, which the judiciary has been able to progress in a very articulate manner.

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  1. Good article that points to Pakistan’s current struggle to establish a stable democracy under harsh economic conditions.

    It’s a struggle to which western people should pay more attention because it is a struggle that the west will be going through more and more over the years. I recommend reading David Korten’s books on the topic, especially “The Great Turning”. Present day Pakistan is in a struggle with “empire” that is more visible than our own struggle with “empire” because conditions are severe. And yet it is our struggle, too. And we might be wise to learn from them, while helping them along the way. Pakistan just might end up being the world’s teacher in how to establish a “real” democracy.

  2. Tariq:

    Very well written article! Indepth and very well discussed. There are a few highlights that could have brought out some interesting insights.

    One, is the strong activism of the courts for women’s rights – I have written an article which is here


    Another is the famous Shah Bano case, which Rajiv Gandhi’s government pushed for a result that was to the liking of the Mullahs and against the women’s rights. That was probably one blot on the Indian Supreme Court.

    I have personally always felt that Indian democracy would have been shattered long time back – had it not been for the Indian Supreme Court. The SC continually brings in the balancing act.

    Regarding your discussion on the Taj Mahal case and other socio-economic related cases – I believe you are looking it from one-dimensional prism. The factories were moved out of that area. It was imperative to do so. The factories cannot be in the main city. And as much as the factory workers were affected, I am sure that the owners would have become penniless in a day! Imagine your land worth several crores suddenly being rendered useless for production. Moreover, it was a decision based on environment and not economics. Similar decisions have been done for factories in Delhi also. Most of those factories which were polluting were thrown out of the city.

    SC has also taken a lead on other pollution cases as well – specially in Delhi. I have lived in Delhi all my life.. and I visit it from US every year.. so I know how it has evolved. The pollution of 1980s/90s was unbearable! Things have changed so much.. some good and some bad… but environment’s success is largely the work of SC.


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