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comments: Judicial Democracy - Judiciary is that
branch of government that interprets the laws or says what the laws mean &
democracy means a form of government in which the citizens share the power. The
anatomy of the Indian Constitution is broadly Montesquiean, and among the
customary trinity, the Founding Fathers vested in the Judiciary, especially the
Supreme Court, sweeping powers beyond what comparable courts in other countries,
including the United States, possess., and the judicial odyssey deserves a just
critique, even as the nation is celebrating (?) its semi-centennial, blending a
performance audit with seminal suggestions for a better justice system. Judicial
democracy entails (definition ally) a simultaneous commitment to
the principles of democracy and constitutionalism. Judicial democracy charges
judges with the task of subjecting democratic decision making to constitutional
constraints, in certain circumstances . It does so on the grounds that judges,
though in some ways accountable to the democracy of which they are part, are
usually relatively independent compared to other officials. Nevertheless, and
ironically, insofar as judges are unaccountable to those over whom they exercise
power, commitments to democracy call into question the legitimacy of judicial
power.
A. Two Principles of Constitutional Democracy
As many have observed, two of the fundamental principles to which constitutional
democracy is committed are incompatible at the extreme and in real tension at
the least. According to one principle, the will of the majority should govern:
to the pure democrat, limits on majoritarian power are unjustifiable. But this
principle competes with principles of constitutionalism. Unlike the democrat,
the constitutionalist is somewhat wary of majorities, in particular of
majorities' willingness and ability to protect individual autonomy. Accordingly,
one principle of constitutional- ism holds that certain rights possessed by
individuals and minorities usually override majoritarian will. To prepare the
way for what follows, these principles are briefly examined in turn.
1. Democracy: Democracy--rule by the
people--is distinguished most generally from rule by the few and rule by the
one. Democracy, in other words, affords all qualified members of the political
community a voice in political decision making. In practice, countries commonly
called democracies fall far short of this ideal due to inequalities in wealth,
access to communication technology, and so on, which translate directly into
inequalities of political power. Still, at least according to the democratic
aspiration, citizens are formal political equals. Majoritarianism is virtually
implicit in democratic theory (though, as explained shortly below, defenders of
democracy typically limit the scope of majoritarian power). Once citizens of the
polity are political equals--that is, once they have an equal voice in
decision-making processes--it follows that policy alternative attracting the
most voices will prevail. "(D)emocracies do live by the idea, central to the
process of gaining the consent of the governed, that the majority has the
ultimate power to displace the decision-makers and to reject any part of their
policy". Indeed, democracy is often characterized as the rule of the majority,
so tight is the nexus between democratic governance and majoritarian rule "The
majoritarian principle" of democracy thus can be stated as follows:
The Majoritarian
Principle of Democracy: All qualified members of the political community have an
equal voice in political decisions made by the community, such that political
decisions generating the support of a majority of the community's members for
that reason carry the day.
2. Constitutionalism: By itself, then, democracy leaves political
decisions to the majority. However, more complete conceptions of democratic
government often include one or another constraint on majoritarian power. The
idea of restraints on majoritarianism often takes the form of another principle,
a principle underlying constitutionalism. Constitutionalism is rooted, in part,
in a fear of the consequences of majoritarian rule & interference with
democratic practice requires a justification. The draftsmen of the Constitution
assumed that these restraints could be justified by appeal to moral rights which
individuals possess against the majority, and which the constitutional
provisions. Might be said to recognize and protect. In any case, one central
purpose of a constitution is to delineate the border between majoritarian power
and individual autonomy, or, put differently, between legitimate and
illegitimate exercises of majoritarian power. Among other things, rights secure
individual
autonomy by restricting the powers the majority may exercise ("substantive
rights") or the manner in which the majority may exercise its powers ("procedural
rights"). Majoritarian power loses legitimacy whenever it invades
protected spheres of individual autonomy or otherwise interferes with individual
autonomy in ways not prescribed by law. The Protection Principle of
Constitutionalism: Majoritarian authority is limited by the constitutional
rights individuals hold against the majority, such that
policies supported by a majority that contravene those rights, substantively or
procedurally, are for that reason without force.
Constitutions embody this principle of constitutionalism by providing certain
checks on majoritarian decisions. Majoritarian decisions are subject to review
to ensure their compatibility with constitutionally protected rights.
The very existence of a
constitution immediately raises two related questions:
(1) Whose interpretation of it shall be authoritative? And
(2) On what grounds?
To return to Federalist 78, Hamilton sought to answer these questions, and the
answers he provided seem innocuous in retrospect. Hamilton argued that-the
judiciary should be an authoritative interpreter of the Constitution on the
grounds that the judiciary's independence renders it uniquely suitable for that
role. He characterized the federal judiciary as independent because its members
enjoy life tenure contingent upon good behavior. Such independence is
indispensable, according to Hamilton, because insulation from political
pressures is precisely what makes the judiciary eligible for its constitutional
task:
(A)s nothing can contribute so much to (the judiciary's) firmness and
independence as permanency in office, this quality may therefore be justly
regarded as an indispensable ingredient in its constitution . . .
And further: That inflexible and uniform adherence to the rights
of the Constitution, and of individuals, which we perceive to be indispensable
in the courts of justice, can certainly not be expected from judges who hold
their offices by a temporary commission. One end to which judicial independence
is a necessary means is the protection of constitutional rights. Where judges do
not enjoy life tenure, they are poorly positioned to guard against "those ill
humors" which lead to "serious oppressions of the minor party in the community."
The federal judiciary is not absolutely independent, but rather is somewhat
independent and more or less so than other institutions in different respects.
Still, the federal judiciary is certainly independent in ways that the other two
branches of government are not. And the federal judiciary's independence is
widely thought to enhance its authority, just as its accountability preserves
its legitimacy.
1. Judicial independence
One respect in which the federal judiciary is independent--and this was the
crucial one for Hamilton--is electoral. Electoral independence goes far to
safeguard constitutional rights (or, again, the will of "the enlightened
majority") from majoritarian encroachment (or encroachment by "the impassioned
majority"). Simultaneously, however, that form of independence might disappoint
the democrat, who would condition the tenure of the judiciary on popular
approval, not good behavior. The problem with electoral independence, according
to the democrat, is that it renders judges unaccountable to the people, the
ultimate source of all legitimate political power. When judges are
unaccountable, they can thwart the will of the majority. Because in certain
circumstances the judiciary is the final interpreter of the Constitution even
where an immediate majority believes itself to
be acting within constitutional bounds, judges can potentially thwart even the
will of the enlightened majority.
2. Judicial accountability
Despite its electoral independence, the federal judiciary is also accountable to
the majority both formally and, increasingly perhaps, informally.
First, judicial decisions can be formally trumped
by constitutional amendment. This exercise of majoritarian power is impractical,
to say the least, but nevertheless constitutes one important "check" the
majority has on the judiciary.
Second, the jurisdiction of federal courts, which is not exactly
constitutionally mandated, might be curtailed by the majority--that is, by
Congress acting on behalf of a majority. The exercise of this second check is
proposed (but not adopted) from time to time when federal judicial decisions are
especially unpopular.
Third, the federal judiciary is accountable to the majority in the
informal but important sense that judicial decisions must generate sufficient
support to ensure their execution, awareness of which has doubtlessly shaped the
judiciary's decision making profoundly in important periods of history.
Finally, and perhaps most importantly, the judiciary is accountable in
the sense that federal judges are nominated and confirmed partially on the basis
of projections of their positions on salient legal-constitutional issues of the
day. According to many, such projections have become increasingly important in
recent years. (W)hen the Supreme Court declares unconstitutional a legislative
act or the action of an elected executive, it thwarts the will of
representatives of the actual people of the here and now; it exercises control,
not (o)n behalf of the prevailing majority, but against it. That, without mystic
overtones, is what actually happens. It is an altogether different kettle of
fish, and it is the reason the charge can be made that judicial review is
undemocratic. "Judicial review . . . is the power to apply and construe the
Constitution, in matters of the greatest moment, against the wishes of a
legislative majority, which is, in turn, powerless to affect the judicial
decision."
Of course, the majority
is not literally powerless to overcome judicial invalidation of its legislative
initiatives. But that qualification does not appease the democrat. Because the
federal judiciary can exercise power to thwart majoritarian will where the
majority has only very limited practical ability to respond, judicial review is,
in one sense, undemocratic. The democrat who is unwilling to accept the threat
to that principle must either reconcile the institution with democracy, or else
seek to minimize the occasion for the undemocratic exercise of judicial power.
The Court Has a Mission
The Preamble as well as Parts III and IV, which are rich with crimson freedoms
and civil and political rights, reflect broad-spectrum human rights and the
Judiciary, by oath of office, is obligated to reach reliefs to every Indian.
Speaking generally, today a person looks to the Court for a plenitude of
progressive directives to defend the full range of human rights in an
egalitarian order. The Executive and the Legislature have large powers and
direct responsibilities to the people and accountability rooted in electoral
surrogacy. Judges too have a constituency - the people of India, accountability
being part of
democratic Government. It is right that `the cult of the robe' cannot exonerate
the Court from its commitment to the people. As people grow ever less willing to
accept unreservedly the demands of authority, the judiciary, like other public
institutions, will be subjected to a growing amount of critical analysis. The
way in which `Judge & Co.' is run is a matter of public interest and will
increasingly become a matter of public debate.
The central role of the
Judiciary in arresting absolutism of the Executive and Legislative organs is
obvious. Justice without power is inefficient; power without justice is tyranny.
For human rights to flourish, we need judges with power, not judicial impotence
robed in pomp. The rule of law, with equal eye and even hand, is a categorical
imperative and inviolable feature of our Constitutional Order. The State has
heavy social and economic obligations and the Court must invigilate and enforce
these duties. Fundamental rights, when breached, the High Courts and Supreme
Court will open fire to defend the victim and right
the wrong. But the judges themselves must be free from pressure and prejudice
and be sensitized to act, be the violator ever so high in office or ever so
powerful in any other way. We live in times when terrorism, masked and naked,
intimidate innocent civilians, amass corrupt fortunes in defiance of law and
justice, exploit by profiteering, inflict mass disaster to aggrandize corporate
coffers, loot public treasury and plunder people's resources with the connivance
of the State's echelons. Even judges are influenced or intimidated at times. It
is in this national scenario we need diamond-hard judges, forensic processes
beyond purchase and laws so interpreted that lacunae and loopholes, laxity and
lexicality covert clout and flamboyant advocacy shall not exonerate culpable and
victimize vulnerable. .
The criteria of choice
of Judges cannot be confined to lucrative practice at the Bar or mere seniority
as Judges. Most importantly, integrity and socio-economic commitments become
paramount. Today, there are grumblings about judicial shortcomings and the
remedy of impeachment has never proved effective. Uncontrolled judicial
behaviorism may result in the jurisprudence of idiosyncrasy and casino justice.
The Bar leaves much to be desired in its creative contribution to Operation
Judicial Selection. The state of the Bar itself is hardly edifying when judged
by high moral values expected of a noble profession whose effective
participation is a sine qua non of social justice in its largest amplitude.
It is now the need of
the hour for the nation to stand by the courageous judiciary whenever it is
being debunked, denigrated and denounced. When the robes run hay-wire or
transgress the Lakshman Rekha or judicial bounds
the court must be halted. Not by Executive ukase nor by Legislative chains but
by larger Benches of the Courts themselves and by academic criticism. The people
ultimately seek justice from the Court because our Parliament and Legislatures
have begun to function almost zoologically, creating chaos in the cosmos. The
Executive, by the Himalayan commission of crimes, has shocked every decent
citizen in the country. And legislators do judo at times and put the House to
shame. Where else to go except to the Court? If you deny access to the Court,
people will fight in the streets.
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The author can be reached at :
AashishSrivastava@legalserviceindia.com
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