Indian Judiciary A Trusted Sentinel Looking After our Democracy: Former CJI MN Venkatachaliah

The judiciary has come under criticism for failing to fulfill its role as guardian of the constitution. Former CHIEF JUSTICE OF INDIA MN VENKATACHALIAH examines the historical underpinnings and judicial innovations such as PILs through which the judiciary has fulfilled its role as an alert guardian of democracy. In a talk on, "Is our judiciary delivering on its role as Sentinel on the Qui Vive in these changing times?" delivered at the 3rd Annual RTI Lecture organised by MONEYLIFE FOUNDATION, and partnered by THE LEAFLET he made many points worth pondering on. Excerpts:

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The expression 'Qui Vive' was first introduced into constitutional parlance by Justice Patanjali Sastri, in the famous case of VG Row, back in 1952. It simply means that the structure of government should be so designed that each branch is a sentinel on the qui vive against the other two, lest they become too powerful or too autocratic.

The making of the Indian Constitution is not merely a political event but an inspiring, historical and spiritual one. India's partition itself witnessed killings on an enormous scale and communal differences.

The debates in the constituent assembly rose to spiritual heights, in its concern to lay the future foundation for a new social order based on the spectre of human life, saving the country from the cusp of communalism.

Great diversities had to be accommodated. It was the genius of great judges to develop a new judicial philosophy to aid the constitution's vision of a new egalitarian order and shape the architecture of an inclusive society. In this endeavour, the role of the constitutional courts came to the forefront.

Traditional threshold limitations and entry to the courtroom (we call this locus standi) had to be relaxed by a great act of judicial sportsmanship as the poor and the marginalised, whose interests were affected, had no educational or financial means to access Justice by themselves.

The second equally important transformation was of the role of the judge himself. No longer a mere umpire, but one that anchors adjudicative leadership of the nation and reinstalls the concept of judicial power as an aspect of judicial duty.

Thirdly, the court had to fashion new tools for legal control of the government. Courts successfully enlarged the concept of stay, to include its instrumentalities and agencies, developing new legal algorithms for holding them down to the duties and responsibilities towards the people.

The most important transformation that came imperceptibly was when the adversarial legal system transformed itself into the system in public law. This is one of the most important changes in the philosophy of the judiciary itself. This is the cornerstone of all the other judicial exploits in the role of the court as the sentinel of qui vive.

A Discussion on Democracy

Democracy provides the richest, most profound opportunity for mutual enrichment. It is intended to provide the best opportunity for each member of the political society to achieve and bring out the best in him. Democracy is not the best form of government, but it is the least hostile of all the systems tried so far.

John Stuart Mill points out the first element of good government as the virtue and intelligence of the human beings composing the community.

That is why no office in the land is more important than that being a citizen.

If civil society itself is fractured and fragmented and consists of groups in perpetual conflict with each other, then the political society will have ample opportunity to manipulate the groups and set off one against the other.

Therefore, without constitutional principles, only a husk of democracy remains and democracy becomes a mere statistical interpretation of numbers.

Dr. Ambedkar said that it is perfectly possible to pervert the constitution, without even changing its form, by merely changing the form of administration to make it inconsistent and opposed to the spirit of the constitution. That is exactly what is happening in the country.

The universal declaration of human rights of 1948, made election and democracy synonymous. That's a very interesting but debatable position. The will of the people shall be the basis of the authority of the government. Of course, that's the principle of democracy. This will be expressed in periodic and genuine elections which shall be by the universal and equal franchise and shall be held by secret vote or by an equal and free voting procedure.

Justification of majority rule in politics is not to be found in its ethical superiority. It is to be found in the sheer necessity of finding a place in a civilized society, from the force which decides on the weight of numbers. A beautiful thing, this has been made to recognise the compromise in the weight of numbers and give it a dignified vertical stature.

Implicit in the idea of representative democracy are the notion of a filter and a microcosm. In a mass society it is regarded as not only necessary but also a positive benefit, that the volatile nature of raw public opinion should be refined through an electoral filter.

That gives representatives the opportunity to deliberate and exercise their judgements, free from the factional interests. With the same token, representative democracy must be close to the society it seeks to represent in order to maintain its legitimacy as a system of government.

This is a very profound idea. There is perceptible democratic fatigue all over the world. Various surveys around the world show a considerable increase in calls for a strong leader, who does not have to bother with parliament and elections, and that trust in governments and political parties is at a historical low. This is the pendulum effect.  It appears that people like the idea of democracy but not the reality.

Sir Winston Churchill said that democracy is the worst form of government except for all other systems we have tried so far. E B Weiss said it is based on the reckoning suspicion that more than half of the people are right more than half of the time. Pt. Nehru, in an interview with Michael Fisher, said, "I think nothing more conducive to creating a feeble ministry and a feeble government than disproportion of proportional representation."

But imagine in the 2014 elections, if I remember right, in the general elections Bahujan Samaj Party got the third largest vote share in the country but they didn't win even one seat whereas parties which had much lower vote shares had a number of seats in parliament. This is an anomaly which is inherent in the system.

Personal Liberty and Judiciary as a Sentinel of Qui Vive

Article 21 of the Constitution says no person shall be denied life or liberty except in accordance with the procedure established by law.

In the Gopalan Case, the SC said that there is a law and as long as there is a law no question of dithering and not upholding the detention arises. They said, procedure established in the law virtually degenerated itself into the hands of the court to the procedure prescribed by the legislature.

After the judicial debacle in Gopalan, came the fresh breeze in Maneka. The court ignored the concept of personal liberty in Gopalan and ADM Jabalpur and said that this is not law.

The first thing is what it takes for a resolution of the legislature to be called law, what are the moral and ethical contents of it, and that is the great debate. That was the starting point. The case of the under-trial prisoners was another classic judicial exploration, the great humanism permeating penology.

The innovation of public interest litigation, an act of judicial genius, restriction of the old orders on access to courts removed and some of the great strides in ameliorative judicial intervention changed the face of the law. Conventional shackles and fetters of formalism were removed. The courts developed rules for legal control of the government.

As a response to Indian judicial innovations, a learned lawyer in an invited article in the law quarterly review said, "the beneficial nature of this easy approach to courts, by disregarding the conventional requirements of locus standi of the applicant and of the non-adversarial character of the court's intervention, it will become virtually an inquisitorial court." It came to be widely appreciated by the public and even imitated by other common law jurisdictions.

Justice Michael Kirby of the High Court of Australia said that the Indian Supreme Court and High Courts had been particularly creative and imaginative in this kind of jurisprudence. Lord Chief Justice of England and Wales, Lord Wolf confessed to having been astounded at first by the provocative approach of the Indian Supreme Court in these and other respects. However, he went on to say I soon realised that if the court was to perform its essential role in Indian society, it had no option but to adopt the course it did and I congratulate it for the courage it has shown.

A Word of Caution: Judicial Overreach

Courts have recognised limitations on their power of judicial law-making.  Judicial activism can at times run against the doctrine of judicial restraint.

Many judicial interventions may not present judicially manageable standards and lack adjudicative disposition. They may answer an absent human need, but a faint crack develops in the foundations of our system of government.

It is only a weak society that constantly appeals to judicial paternalism to solve its problems. It loses the excitement of democracy which is to fight issues out democratically.

In 1963, officially in a case called Ferguson versus Skrupa, the American Supreme Court said we are tired of acting as the super-legislature. Instances of monitoring prosecutions and investigations in case of corruption, overseeing legislative proceedings, whether voting is proper, fall into a different class of judicial work. Right or wrong it may serve an immediate purpose, but what it may mean in terms of the balance of powers may be a different argument.

All in all the opinion of the Supreme Court in the third judges case must be the most remarkable ruling ever issued by a Supreme National Appellate Court in the common law world.

In the context of such expansive judicial mood, Justice Harlan F Stone of the US Supreme Court cautioned, "This court no less that all other branches of the government is bound by the constitution. The constitution does not confer on the court blanket authority, to step into every situation where a particular branch might be thought to have fallen short. The stability of this institution ultimately depends not only upon it being alert to keep the other branches of the government within constitutional bounds but equally upon recognition of the limitation of the court's own functions in the constitutional system."

This is another Sentinel on the qui vive. Each branch is trying to introspect and say find out what are its limitations.

In the USA…the courts have ignored highways and sought by-lanes of justice. The courts, however, must not ignore the caution that a judicial decision has to be reasoned out, it has to be arrived at with logical coherence and political neutrality.

Changing role of Courts as Sentinel of qui vive: Past and Present

The Supreme Court of India has defended democratic institutions and strictly kept in check misuse of power to supersede governments under Article 356.

In the matter of unity in elections, the philosophical partnership between the Election Commissioner of India and Article 324 of the constitution becomes really important and the recognition of the amplitude of powers by the Supreme Court in a series of cases is a very important exercise. And that is again the great role of the sentinel of the qui vive.

In the area of protection of personal liberty, the activism of the court is most impressive. Equally impressive is the expansion of the concept of access to justice. Lok Adalats are another innovation for speedier justice.

The functions of the state have changed from an instrument of power into an agency or society. The greatest most proper function, or even an obligation, of the government is to ward off the stress not only among the poor but amongst all citizens of society.

Such a state emerges when a society or the decision making groups become convinced that the welfare of the individual is too important to be left to custom, informal arrangements and private understanding.

But the greatest danger to constitutionalism and constitutional government in emergent democracies and developing countries arises from the human factor in public life that distorts and vitiates whatever the government performs.

Syed Querishi, the former Chief Election Commissioner, said that there is a nexus between the politician and bureaucrats in recovering the investments made in the election by the candidates and that is where corruption begins. He said that elections are polarizing events which have accentuated casteism, communalism and crony capitalism.

Ultimately underlying it all is the basic legitimacy of the judicial process. The American law said: "The wisdom and moral code of great judges past and present make their contribution. Procedural fairness and regularity are also essential to legitimacy. In a constitutional sphere, law has long drawn strength from traditional and evocative results that symbolise the historic struggle for freedom and governmental oppression." It is rightly said that the history of liberty is the history of procedure.

Speaking of the American Supreme Court, their scholar said, "the final judgment of the American people will unquestionably be that their constitutional rights are safe in the hands of the federal judiciary…the United States government has averted any storm that has threatened our peace…and (The Supreme Court) has united the whole country in the bonds of justice." It can truly be said of the Indian Supreme Court as well, that it is a trusted sentinel of the qui vive.

(The 3rd Annual RTI Lecture delivered by former CHIEF JUSTICE OF INDIA MN VENKATACHALIAH was organised by MONEYLIFE FOUNDATION, and partnered by THE LEAFLET .)