Exploring The Rise Of Judicial Sovereignty In Modern Governance
"The Rise of Judicial Sovereignty" by Pratap Bhanu Mehta is an insightful
essay that explores the role of the judiciary in modern democracies. The essay
argues that the judiciary has become increasingly powerful in recent times and
has taken on a larger role in shaping public policy.
Mehta begins by pointing out that the traditional role of the judiciary was to
interpret and apply the law, rather than create it. However, he notes that in
recent years, the judiciary has increasingly taken on a more active role in
shaping public policy. Mehta argues that this trend towards judicial activism
can be seen in many countries, including the United States, India, and South
The paper's overarching theme is the competition of powers between India's three
wings of democratic government. There appears to be both a passive and active
argument about how the judiciary, through its actions, has become a powerful,
non-elected, unaccountable body that plays a role in almost every area, from
civil liberties to urban planning. The author's series of arguments appear to be
seamless and convincing as to how the judiciary wing has been able to exercise
its independent power.
One of the key factors driving this trend, according to Mehta, is the decline of
political institutions. He argues that as political institutions have become
less effective and less responsive to the needs of citizens, the judiciary has
stepped in to fill the void. Mehta suggests that this has led to a situation
where the judiciary has become the de facto arbiter of public policy.
Mehta goes on to explore some of the implications of this trend towards judicial
sovereignty. He notes that while the judiciary can play an important role in
protecting individual rights and promoting social justice, there are also risks
associated with judicial activism. For example, he suggests that judicial
activism can sometimes undermine democratic accountability, as judges are not
directly accountable to the electorate.
While discussing the controversial sovereignty of the courts Mehta makes two
arguments that sort of contradict each other. He begins by stating that the
judiciary is an independent body tasked with protecting the basic structure of
the constitution and has the authority to reject amendments proposed by
parliament. On the other hand the account of suspension of the fundamental
rights of the people and power abuse by the government by bending the judicial
voice for personal motives.
In my opinion, the judiciary is an independent body tasked with protecting and
enforcing the constitution through a network of courts. This is to disregard
both legislative and executive functions. It has been able to further deepen the
independence of appointment in judicial systems and to have its autonomy over
the state through collegium systems. However, I believe that the judiciary,
through the use of PIL, has been able to bring to light a large number of cases
that violate civil liberties. This has two implications: the courts have brought
autonomy to its doorstep, and they have broadened the scope of decentralised
governance, which has been blocked and corrupted in various ways by governments.
There appears to be a problem with politically independent decision making, as
well as its accountability and rationale. There is an issue that is clearly
highlighted, which is the changing role of the judiciary and exercising more and
more independent power, which makes it opaque and less empirical in similar
situations. "Judicialization of politics and politicisation of the judiciary"
comprehensively explains the current role of the judiciary. It identifies how
the judiciary is seizing control of democratic institutions and processes, as
well as how the judiciary, as an unelected independent body, has entered
mainstream politics to wield power. The principles that guide the Supreme
Court's decisions have become less clear as it has
become known as a forum for resolving public-policy issues. To the extent that
the rule of law entails providing a forum for appeals, the Court could be said
to have done well. Insofar as articulating a coherent public philosophy that
yields predictable results is required for the rule of law, the Court's
interventions appear less impressive. The Court has accumulated so much power by
usurping executive functions and marginalising the representative process
without explaining where it derives its own authority.
Theoretically, democracy and constitutionalism can be mutually reinforcing, but
in practise, the relationship is complex and even problematic. The question of
where one begins and the other ends has taken on global significance in light of
the widely observed trend towards "post-democracy," in which representative
institutions are ceding power to non-elected decision-making centres around the
world. In India, unelected judges have effectively supplanted the concept of
three branches of government with a "unitarian" claim of formal judicial
supremacy. The concept of the rule of law is supposed to legitimise this claim,
but whether judicial supremacy, as defined by the Indian Supreme Court, actually
upholds the rule of law is debatable.
The preservation of rights and liberties through decision making appears to have
been misunderstood in some ways in the system's power dynamics. It is difficult
to comment on the quality of amendments rejected by the judiciary without
knowing the facts of many of the cases discussed in the paper. However, it is
also unsatisfactory to claim that the judiciary has amended the constitution
over 100 times without knowing the context of these amendments.
There have been some significant amendments, such as the 74th. In addition, when
state governments have imposed bans on literature related to religious and
national sensitivities, the Supreme Court has lifted the ban.
According to me, the most insightful and simultaneously provocative part of the
article was where Mehta makes the following claim:
(Mehta) "It is no accident that Indian constitutional law has been relatively
unstable, or that the same courts which appear assertive in some areas seem weak
in others: strong enough to spark the passage of many constitutional amendments
meant to confound judicial rulings, but so easy going that no major politician
has ever been charged in any of the numerous corruption cases that the Supreme
Court has been supervising for years. The legitimacy and power that India's
judiciary does enjoy most likely flow not from a clear and consistent
constitutional vision, but rather from its opposite.
The Supreme Court in particular has given enough players enough partial
victories to leave them feeling as if they have a stake in keeping the game of
political give-and-take going. This, more than any ringing defense of principle,
is the Court's signal contribution to Indian democracy. (Emphasis added)."
(Mehta, Pratap Bhanu Mehta, "The Rise of Judicial Sovereignty" 18 Journal of
Democracy 73 (2007).)
This analysis immediately piqued my interest, and I'm curious how others who
have studied the Court's work would react to such an assessment of its
operation. The one concern I have with such an interpretation is that it appears
to imply that the Indian Supreme Court is a homogeneous institution whose
members collaborate in designing the organization's gameplan, and that this
'strategy' was conceived and implemented by the institution as a whole.
The practical reality of a 26-member institution whose membership is constantly
changing and which sits in benches of two or three judges should make us
sceptical of Mehta's analysis. The idea that judges adopt an overall strategy
towards cases of a certain type, or that they discuss the approach or strategy
that they should take in reaching a certain decision with other judges (who are
not on the particular bench), would offend at least some accepted understandings
of the judicial role.
While the Court does have an overall institutional strategy on some issues, it
does not have much control over its docket (unlike the United States Supreme
Court, which controls access through certiorari grants). While the Indian
Supreme Court can control its
docket (for example, by deciding not to grant SLPs in a certain category of
cases), it is also a general court of appeal's ability to be hampered.
For example, the Supreme Court has a major role in over ruling decisions of the
state governments as well has the judgements by the high courts. This has a
significant impact on reducing India's federalism. The very decision to create a
united India and a central authority has worked against the nation's unity
today. The major question that appears to be in the spotlight is whether it is
the role of the judiciary to determine whether the basic structure of the
constitution is amendable.
When examined closely, the parliament, rather than the courts, is a democratic
body that is ideally supposed to have this right. Second, before enacting or
amending the constitution, the judiciary should be held accountable to the
legislature. But the question here is who is more trustworthy in protecting the
nation's civil liberties.
How long can we keep establishing independent institutions to ignore civil
rights protection? Predictability of institutions is a difficult task, and I
believe that keeping democracy at the centre of all discussions and then
considering separation of powers is a fairly narrow purview to work with. An
implicit question that emerges is how to bridge the gap between the judiciary's
profession and democratic processes in order to make the most important
decisions for the nation.
Even if the judiciary becomes an elected branch responsible for illegitimate
decisions, as we saw during the emergency, both the legislature and the
judiciary could act to prevent the suspension of fundamental rights. The author
correctly states that the democrat in people is always suspicious of the body
that makes decisions about their fate.
I'm also concerned that this analysis will lead to people becoming optimistic
about the Court's individually egregious decisions, believing that the
particular decision is just part of a larger trend of cases that the institution
is focusing on. This may also result in a diversion of attention away from the
justificatory reasoning advanced in support of each individual decision. Because
of the nature of adjudicatory processes, decisions are made on an individual,
case-by-case basis, and the justification advanced for each decision should be
capable of standing on its own, rather than being understood as part of some
overall utilitarian calculation.
"The Rise of Judicial Sovereignty" is a concept that refers to the increasing
power and influence of the judiciary in modern democracies. While some people
see this as a positive development that helps protect individual rights and
ensures that the government operates within the bounds of the law, others have
criticized it as an undemocratic trend that undermines the power of elected
officials and creates an imbalance of power in society.
One major criticism of the rise of judicial sovereignty is that it can lead to a
lack of accountability. Unlike elected officials, judges are not directly
accountable to the public, and their decisions can be difficult to overturn.
This means that they can make decisions that are not in the best interests of
the public, without fear of political repercussions.
Another criticism is that the rise of judicial sovereignty can lead to a lack of
transparency. Judicial proceedings are often conducted behind closed doors, and
judges are not required to explain their reasoning in detail. This can make it
difficult for the public to understand how decisions are being made, and can
lead to mistrust of the judiciary.
Finally, some critics contend that the rise of judicial sovereignty may result
in a lack of legitimacy. When judges rule against the wishes of the public or
elected officials, it can give the impression that they are acting in their own
self-interest rather than the interests of society as a whole. This can
undermine the judiciary's legitimacy and lead to a breakdown in the rule of law.
While the rise of judicial sovereignty has its supporters, there are also valid
criticisms that must be taken into account. To ensure that the judiciary remains
an effective and respected branch of government, it is important to maintain a
balance between judicial power and democratic accountability.
Judicial restraint functions as a double-edged sword, preventing the judiciary
from exceeding its jurisdiction while also assisting in maintaining the delicate
balance among the state's other limbs. To exercise restraint, the courts must
emphasise the following: the original intent of the constitution's authors,
previous decisions in previous cases, and delegating policymaking to other
organs when possible. As a result, the courts' goal should be interpretation
rather than intervention.
However, judicial restraint must not be confused with judicial overreach.
Judicial under reach occurs when the courts take a step back or exercise
restraint on issues that should be resolved, example of court's failure to pass
an order in the case Navtej Singh Johar.
Citizens have ultimate power in a parliamentary democracy like ours, as
guaranteed by the preamble. The people seek the formulation of laws and
governance through their elected representatives. It would be a constitutional
violation to twist this power and give it to a 'unelected temporary legislative
chamber' in the form of the Supreme Court. The judiciary should instead play the
role of defining and enforcing the boundaries of other state organs' operations.
And the Courts' power must be exercised with restraint and humility.
If court activism continues beyond what is appropriate for a healthy democracy,
it may eventually lead to authority activism. That would imply a breakdown in
the governing system and a failure on our part to adhere to the ideas and
morality enshrined in the constitution. As a result, the greater good is served
by not allowing the Supreme Court to become overly powerful. And the extent to
which they exercise their powers beyond what is mandated must be determined on a
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