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The Role of Judiciary In Promoting Good Governance

The Constitution of India is the Supreme law of the land. The Judicial system of India has the responsibility of Interpreting and protecting it. It also acts as the guardian or protector of the Fundamental rights of the people. It exercises the power of determining the constitutional validity of all laws. It has the power to struck down any law or any part of it which it founds to be unconstitutional or violating the basic structure doctrine or Fundamental rights of the People. This power of the Judiciary is called the power of Judicial Review. So, The Power of judicial review is necessary to be exercised by judicial system for Establishing ‘Rule of Law’.

The ultimate objective of this is to protect the Fundamental rights of the people from legislative or Administrative Arbitrariness. The power of Judicial Review vests with the Supreme court and High courts of India but will be further reviewed and upheld by supreme court of India. In a Democracy, Judiciary acts as an body that keeps a check on the subjective powers of the government to establish good governance and a better democracy for the people. Article 137 of constitution of India 1950, provides the power of Judicial Review to Supreme court of India, provides that subject to provisions of any law and rules made under Article 145, the supreme court has the power to review any judgment pronounced or order made by it. According to doctrine of separation of power there are three essential bodies Legislature, Executive and Judiciary.

Legislature & Executive bodies together form up the government. The role of a legislative body is to make laws. The role of the executive is to deal with initiating policies, and put the laws passed by the parliament into implementation through the local authorities like police & armed forces.

In a democratic form of Government where the exercise of powers is mostly done by executive & bureaucrats conferred upon them by the Legislature, if found subjective, arbitrary or violative of the fundamental rights like restraining minorities from professing and practicing their religion, Restrain of minorities from their basic rights, discrimination on the basis of race, religion, caste, sex or place of birth , then being the 3rd organ of the Government judiciary performs the its function as custodian of the constitution to uphold the spirit of democratic government and constitution and protect these Fundamental rights of the people. Judiciary is an important Pillar for the smooth functioning of democracy and maintaining peace and justice.

Characteristics of A Good Government And Exercise of Powers By Judiciary For Monitoring Government Actions

A Democratic Government is always accountable to the people for its actions and its actions should be transparent in nature. It is Responsible for Present and Future Needs of The people and should exercise decision-making powers under the ambit of rule of Law.

Good Governance is just a determinant that how Government manages its public affairs through public institutions and how they manage their public resources. So, to Achieve all of these our constitution has established judiciary as athe custodian of the constitution to safeguard people from arbitrary action of government and to uphold the Democratic spirit of Constitution and through power of Judicial review and put them under the limits of the constitution and establish Rule of Law.

The parliament can amend the constitution or any part of it under article 368 of the constitution including Part III of the Constitution consisting of Fundamental rights but According to article 13(2), it can make any law that abridges the Fundamental Rights contained in part III of the constitution. This was stated in the case of I.C. Golaknath v. State of Punjab & Anrs[1]. The Fundamental Rights are inserted in part III of the constitution for protecting the interests of the people and these basic rights of the people can’t be taken by government as a result of their arbitrary action.

In Keshavnanda Bharti v. State of Kerala[2] , The Supreme court of India also established the Basic structure Doctrine to protect democratic structure. Supreme court of India established that under Article 368 of the constitution or any part of it including the Preamble can be amended keeping in view that the basic structure of the constitution should not be violated. It also overruled the decision of I.C. Golaknath case suggesting right to property could not be restricted.

In Indira Nehru Gandhi v. Raj Narayan[3], supreme court applied the theory of basic structure doctrine and struck down clause (4) of article 329(A) which was inserted in the constitution by 39th amendment act 1975 on the ground that it was beyond the amending power of parliament as it violates destroyed the basic feature of the constitution. So, Judiciary is the highest and the ultimate authority which determines the constitutionality of a law and this power of judicial review is also a basic feature of our constitution and it can’t be violated which was established and further clarified in cases, Indira Nehru Gandhi vs Raj Narayan and Minerva Mills Ltd. & ors. Vs Union of India respectively and also found in some more cases[[4]][[5]].

All These efforts by Judiciary helps so much in promoting and maintaining good Governance as it restores the faith of the democracy in the Government and protects the Goverment from violating the basic structure of our constitution and infringing people’s fundamental rights.

Judicial review works with three aspects-

  1. Judicial review against Legislative action
  2. Judicial review against judicial action
  3. Judicial review against Administrative action

These facets of Judicial review were pronounced by the Supreme court of India in case of L. Chandra kumar vs Union of India, Stating that the judges of higher court have to interpret legislation up to this end that the constitutional values are not to be interrupted.

To achieve this end, the Judges have to keep in mind that the equilibrium of control, specified in the constitution is not disturbed. As our constitution guarantees that their should be separation of powers between different organs of the government in performing their respective functions, but separation of powers should not be of such nature that it grows too powerful and countervail powers of others so to keep it in control ,the theory of check and balances is introduced to strengthen the powers of courts to review the actions of the executive.

Power of Judicial Review is the heart of administrative law and an important method of inquiring into the competence of public authority. Supreme court is the highest judicial authority with the power of Judicial review. Power of judicial review vests with high court under article 226 and 227 of the constitution of India and Supreme court of India under article 32 and 136 of constitution of India.

· JUDICAL REVIEW OF PRESIDENTIAL PROCLAMATION OF EMERGENCY
There has been a continuous attempt on the parts of the Judiciary to bring the invocation of Emergency under the article 352 and article 356 of the constitution of India within the Judicial Scrutiny. This has been tried to keep a check on the powers of the Government to prevent it from any arbitrary decision on proclamation of emergency.

The essence of Judicial Review lies in the fact that the role model for governance and decision making should manifest equity, fair, play and Justice. So, the act of governance should withstand the test of Judiciousness and impartiality so that it does not turns out to be oppressive, fanciful and arbitrary.

Principle of Governance should therefore be tested by the judiciary. During the emergency all the rights of the citizens are seized including the Fundamental included with article 32 and 226 of the constitution of India, restricting the citizens from approaching the courts during Emergency for violation of their fundamental rights i.e.; Article 19 and Article 21. Judicial review therefore should not be considered as an excessive delegation of power but as a measure to check whether the acts done are in accordance with the constitution or not.

In Re[6] the Supreme court refused hold the continuance of emergency under Article 352 void and stated the question involved here is- “a political, not Justiciable issue and the appeals should be to the polls not to the courts. In Re[7] President has ample material for his satisfaction before declaring an emergency and it is not open to the courts to question the validity of the proclamation under article 352.

Through the 42nd amendment Sub-Article(5) was inserted in Article 352 which made the president’s satisfaction in proclaiming an emergency final and conclusive and provided that such satisfaction shall not be questioned in any court on any ground and further barred any of the courts to consider the validity of the proclamation made by the president and also the continued operation of such a proclamation. It was clearly meant to exclude judicial scrutiny of a proclamation or its continuance. Then, this clause (5) was deleted by the 44th Amendment and this itself shows that at any rate the jurisdiction of the court to go into the mala fide issue of a proclamation or its mala fide continuance was not to be excluded.

With this Amendment it is the discretion of the Supreme court to decide whether it will treat the satisfaction of the president to issue the proclamation of emergency, or to vary it to continue it, as final and Non- Justiciable or as being subject to judicial review on some grounds. In Minerva Mills Ltd. v. Union of India[8] it was found that wherever the president while proclaiming the emergency had applied his mind or whether he had acted outside his powers Emergency could not be excluded from the scope of Judicial Review.

In S.R. Bomnai v. Union of India view of High courts about judicial review was that there could be no judicial review of the presidential proclamation but then the Supreme court held that the Judicial review was possible and validity of the proclamation issued can be reviewed. This further gave strength to the observation laid down in Minerva Mills Ltd. v. Union of India. All the judges agreed that a proclamation issued under Art. 352 is not completely beyond Judicial Review and Mala-fide decision provide a ground for Judicial Reference.

It was held in S.R. Bomnai v. Union of India that Article 356 Clause 1 is not Immune from judicial review. Courts can strike down the proclamation if it is found to be mala-fide or based on totally irrelevant or extraneous grounds. Article 74(2) merely bars an enquiry into the question what advice was given by the ministers to the President. It does not debar the court from Examining the material on which it was given.

If the material is found to be irrelevant or not connected the court can strike down the proclamation as being ultra-vires and has the power to restore the dismissed government and reactivate the Legislative Assembly which was kept under suspension. So, the susceptibility of proclamation under Article 356 to judicial review is beyond dispute. Judiciary looks into the matters not only concerning executive decision of proclamation of emergency but also the matters concerning safeguarding people fundamental rights(Only Article 21) against executive action and can review the action of executive after the Emergency is removed.

After all such efforts by Judicial system for proper functioning of the government till now it is till now a contentious topic and debates arise on whether government functioning , decisions making and its executive functions comes under the ambit of Judicial Review. Although Judiciary can’t intervene in functioning of the government but It is of vital Importance when it comes on protection of human rights and smooth functioning of the Government and its Institutions by infusing accountability.

The civil Society has expected notions of judicial governance. However, there is an ardent need of expansion judicial governance taking into fact prevalence of injustice in the society. To give meaning democratic India, two important factors need to be brought into force i.e. reformation of the political system and enforcement of the law with support for both from the judiciary.

Judiciary also keeps a check on amending power of parliament that whether any law in Indian constitution or any part of it amended by parliament under article 368 of the constitution of India is violative of Fundamental rights and basic structure doctrine, if yes, it would be struck down by an order of supreme court directing the parliament to review it again or struck it down.

Judicial Review of Presidential Proclamation of Emergency

The Exercise of original jurisdiction by Supreme court of India under article 131 of constitution of India helped a lot in good Governance and smooth functioning of the government by settling disputes between State(s) government and union government or between two state government.

It provides:
Original jurisdiction of the supreme court subject to the provisions of this constitution, the supreme court shall, to the exclusions of any other court, have original jurisdiction in any dispute
(a) Between the Government of India and one or more States; or
(b) Between the government of India and any State or States on one side and one or more states on the other; or
(c) Between two or more states; Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagements, and or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.

In Re[9] Supreme court exercised its original jurisdiction under article 131(c) as an exception to section 6 of Inter-State Water Disputes Act, 1956. In State of Rajasthan v. Union of India original jurisdiction is in the matters of the election disputes and the executive jurisdiction because Supreme court of India is the only court that has the power to settle disputes between the state government and the union government or between more than more than one state. It means that private parties are not be a part of the cases which fall under Article 131 of the constitution of India which is resolved by the Supreme court[10].

Conclusion
So, It can be concluded from above that Judiciary plays very important role in implementing Good Governance. Being the custodian of the constitution Judiciary reviews the Legislative, Executive & Administrative actions. It is clear that role of Judiciary in Good Governance is very effective. Safeguarding people’s fundamental rights, implementing Directive Principle of state policy’s, reviewing proclamation of emergency and other executive actions, helped a lot in promoting good governance and keeping the essence of Democracy safe and effective so that peace and harmony is established in society and there should be Rule of Law established in the society.

Judicial administration also settles disputes between union government and state government or between more than one state for smooth & proper functioning of states administration and manage its own affairs rather than discussing these problems and affecting their functioning. By settling disputes between states on land, water, etc. and on other matters judiciary helps in promoting a fair channel and way for governance and promote unity and integrity among the states of India for smooth functioning of union government. These helps a government in focusing on other international affairs and development of its country and Good Governance.

End-Notes

  1. [1967 AIR 1643, 1967 SCR (2) 762]
  2. AIR 1973 SC 1461
  3. [AIR 1975, SCC(2)159]
  4. Chandra Kumar v. UOI [ 1995 AIR 1151, 1995 SCC(1) 400]
  5. Waman Rao v. UOI & Anrs. (1981) 2 SCC 362, 1981 2 SCR 1
  6. Bhuth Nath v. State of Bengal [AIR 1975, SCC(2)159]
  7. K.K. Aboo v. UOI ( AIR 1965, KER 229)
  8. AIR 1980 SC 1789
  9. Cauvery water dispute
  10. Ajay Hasia v. Khalid Mujib (AIR 1981, SC 487)

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