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Constitution -Judicial Democracy

Written by: Aashish Srivastava - B.B.A.LL.B. (Hons.) VIth Semester - National Law University, Jodhpur
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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. When 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.

The author can be reached at: AashishSrivastava@legalserviceindia.com / Print This Article

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The Supreme People's Court (SPC) is the highest judicial organ in China and is responsible to the NPC and its Standing Committee....

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Supreme Court of Bangladesh: The territorial area of Bangladesh originally being a part and parcel of the then Indian Sub-continent, the history of its legal system may be traced back from the year of 1726,when King George-I issued a Charter changing the judicial administration of the Presidency towns of Calcutta, Bombay and Madras, through which the Civil and Criminal Courts, as established, started deriving their authority from the King....

The International Court of Justice is the principal judicial organ of the United Nations. Its seat is at the Peace Palace in The Hague (Netherlands). It began work in 1946, when it replaced the Permanent Court of International Justice which had functioned in the Peace Palace since 1922. It operates under a Statute largely similar to that of its predecessor, which is an integral part of the Charter of the United Nations.

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