'The founding fathers very wisely, therefore, incorporated in the constitution itself the provisions of judicial review so as to maintain the balance of federalism, to protect the fundamental rights and fundamental freedoms guaranteed to the citizens and to afford a useful weapon for availability and enjoyment of equality, liberty and fundamental freedoms and to help to create a healthy nationalism. The function of judicial review is a part of the constitutional interpretation itself. It adjusts the Constitution to meet new conditions and needs of the time.' -S.S. Bhola v. B.D. Sardana[1]

Introduction to subject matter:
Probably, the two highest ideals ever created, by the human mind and spread throughout the world, are justice and the rule of law. In democracy, the notion of constitutional morality and judicial values are linked with a plethora of causes and repercussions of dignity & liberty of an individual. Adherence to the core principles of constitutional democracy, makes a democratic setup more powerful.

In the philosophy of Ambedkar, Constitutional morality would need an efficient coordination between competing interests of diverse parties and administrative collaboration to settle disputes peacefully and without conflict between the many factions vying to achieve their goals at any cost.

So, with the help of this essay, we are going to critically analyze and evaluate how can the Indian Judiciary, which claims itself to be an independent, watchdog of democracy and fundamental rights actually play a substantial role in promotion of Constitutional Values.

Constitution:

Approximately, seven decades ago, we inherited a firmly established justice system, besides elaborate and codified, substantive and procedural laws from Britishers. These laws are absolutely time tested. Therefore, we amended them with appropriate changes whenever & wherever required. Over the years, we have modified our constitution as per our needs and requirements and with Legislature, Judiciary also played an equally pivotal role in this.

'Of all the written constitutions in existence, the Indian Constitution is the lengthiest and most comprehensive one. The Indian Constitution originally included 395 Articles organised into 22 Parts and 8 Schedules, as opposed to 7 Articles of American Constitution, 128 Articles of Australian Constitution, and the 147 Articles of Canadian Constitution. The constitution has had various Parts and Articles deleted since 1951, as well as several new Articles introduced. The Constitution's final numbered Article is still 448, its last numbered Part is 25, and there are 12 Schedules as of now.'

Promotion of Constitutional Values:

'It is the function of the judges, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled constitution will then become uncontrolled.'- Minerva Mills v. Union of India[2]

Rule of Law:

The substratum of our democracy is the rule of law, meaning thereby, having an independent judiciary & judges, who can make decisions out of the undue influence of the legislature and executive, or rather, "the political winds which are blowing." It's literal meaning is, no person is above the law & is subjected to the jurisdiction of ordinary courts.

We can say, that the doctrine of rule of law is the base for administrative law. Even according to Aristotle, this doctrine is centred around the ideals of justice, fairness & inclusiveness. Today, a well tangled chain of rule of law has come into existence which includes Independent Judiciary, equal treatment before law, transparency and accountability in the basic administrative law.

• In the Habeas Corpus Case, as known as ADM Jabalpur v. Shivkant Shukla, Justice H.R. Khanna, in his dissenting opinion stated that:
  'Article 21 is not the sole repository of life and personal liberty and during the proclamation of emergency, Article 21 only loses the procedural power but the substantive power of this article is very fundamental and the State does not have the power to deprive any person of life and liberty without the authority of law.'[3]

Judicial Activism:
Its origin traces back to the United States and that too, in the middle of the 20th century. As a result of the government's legislative and executive organs unbridled and unconstrained behaviour, the notion of judicial activism expanded quickly over time and gained enormous popularity in India and elsewhere

Since, the cornerstone of all the democracies, is the distribution of powers among the three organs of the government i.e., Legislature, Executive & Judiciary but the occasional excessive judicial activism perceives to infringe upon the rights of the other organs.

In the pursuit of good governance & upholding constitutionalism, it is way very much pertinent to involve community's participation in order to influence the legislation, as it is only for the community's welfare. For the endorsement of the interests of the unprivileged, disadvantaged & marginal sections of the society, the Indian Judiciary has played the role of an activist quite gracefully.

The interpretation of article 21, in the case of Maneka Gandhi is a prime example of Judicial Activism and vigilant Judiciary in the case of upholding constitutional values.[4]

Judicial Review:
In the Marbury v. Madison case (1803), John Marshal (former Chief Justice of the Supreme Court of the USA), introduced the concept of Judicial Review to the world.[5]

In the Indian context, the power of Judicial Review is explicitly given to the Supreme Court and High Courts, through the constitution itself. Also, the hon'ble Supreme Court of India, has itself established that this power constitutes within the Basic Structure Doctrine, so it can't be withdrawn with the help of any constitutional amendment. It also takes care of the federal equilibrium.

PIL system (Public Interest Litigation):

Got introduced by Justices P.N. Bhagwati & V.K. Krishna Iyer in early 1980s on account of a lacuna felt in common public law with equally exorbitant fees. The terminology "public interest litigation" is basically a borrowing from the American law, where it was created to give legal counsel to groups that had not previously had it, such as the underprivileged, racial minorities, unorganised customers, concerned citizens, etc.

Public interest litigation (PIL) is a legal action brought in a court to preserve "Public Interest," like pollution, terrorism, traffic accidents, etc. A public interest litigation can be filed to address when the issues of the general public's interests are in danger.

Matters addressed under PIL system:

• Bonded Labour matters
• Neglected Children
• Non-payment of minimum wages to workers and exploitation of casual workers
• Atrocities on women
• Environmental pollution and disturbance of ecological balance
• Food adulteration
• Maintenance of heritage and culture

Critique and Constructive Conclusion:
In the Judicial world only, it is a fairly discussed topic that the judiciary fails in the timely hearings of those cases which go straight into the heart of the values of Institutional Integrity, like the case of electoral bonds, but we should also take into consideration the cases of personal liberty like those of Vinod Dua and Prashant Bhushan, in which the court has come in rescue of the values.

One more serious problem is the lack of transparency, in particular, the appointment of judges, nepotism and corruption in the same. Lack of accountability and responsibility of the Judiciary and an occasional excessive power misuse of judicial activism, or rather, judicial overreach.

All these problems are grave and need urgent attention and solution. Let's strive for a better working of every organ of the government. Let's make our judiciary more vigilant and careful in each and every sense possible. Let there be a full-fledged democratisation of the Indian Judiciary.

References:

• SAKET, Role of Judiciary for Upholding Constitutionalism, 4 (2) IJLMH Page 1096 - 1104 (2022).
• Yash Jain, Judiciary under the Indian constitution, ipleaders, (Aug. 23, 2022, 8:33 PM), https://blog.ipleaders.in/44353-2/.
   

End-Notes:

1. S.S. Bhola v. B.D. Sardana, AIR 1997 SC 3127.
2. Minerva Mills v. Union of India, AIR 1980 SC 1789.
3. ADM Jabalpur v. Shivkant Shukla, 1976 2 SCC 521
4. India const. art. 21.
5. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).