Essay on “Role of judiciary in a Democracy” Complete Essay for Class 10, Class 12 and Graduation and other classes.

Role of judiciary in a Democracy

POINTS OT DEVELOP 1. Concept of separation of powers in a democracy.

2. independent judiciary a must in a democracy; how the idea grew and developed .

3. Role of the judiciary- judge the validity of laws passed ; decide on the right and wrong of executive action; uphold the Constitution and resolve constitutional deadlocks an dilemmas.

4. judicial verdicts have brought down rulers in a democracy.

5. limitations on judiciary.

6. The Indian situation.

7. summing up.

The theory of the separation of powers, implicit in the writings of Aristotle but first given independent expression by Harrington and Locke, is known in its modern form largely through the writings of Montesquieu. Following Montesquieu, the three powers normally considered to be separable in the exercise of government   are the legislature, the executive, and the judiciary. The first formulates policy and enacts it as law, the judiciary . The first formulates policy and enacts it as law, the second carries out policy in action , and the third applies the law according to rules of procedural justice and resolves disputes. The sign of the despot is to subsume these powers under one. In particular, the despot will never permit an independent in every dispute. In despotism nothing in the structure of power acts as a brake upon power, and hence in order to limit power, the three constituents of the state must be separated as much as possible, and balanced against each other. This principle was carried into reality in the US  constitution, the first fully democratic constitution of the modern world .

Without an independent judiciary , the system may be termed ‘ democratic centralism’ which is practically equivalent to despotism or dictatorship. In any  healthy democratic state, the independence of the judiciary is sought to be maintained through certain norms in appointing judges along with a complicated procedure for removing them from office. Furthermore , their salaries and allowances are not changeable at the whim of the executive or the legislature. But above all , a free judiciary can only exist in a political system in which democratic principles are truly believed in and acted upon by all alike- executive, legislature and the citizenry at large. Reciprocally , the judiciary in a democracy should have the courage to protect its independence and deliver impartial judgements free of the fear of repercussions on career and prospects.

Certainly, a balance between the three limbs of democracy is to be desired, but immature bickering over the respective  powers should be avoided. Unfortunately in India, as David Selbourne observes, “ the  judiciary is attacked in the name of the sovereignty of Parliament is attacked in the name Of democracy and the people ; also , democracy and people are being attacked in the name of ‘ national discipline’ and the  struggle against conspiracy and subversions”.

In a democracy, there are institutional arrangements by which courts can decide upon the constitutional validity of the laws passed by the legislature or the actions taken by the administrative   the executive authorities. Judicial review is essentially an  American institution and is based on the simple logic that the constitution is supreme and confers, limited powers on the executive and the legislature and , if they overstep their limits, the judiciary must restrain them. One of the important persons instrumental in building the American state was chief justice john Marshal. He  strengthened and consolidated the unity and democracy of  the  United States through a series of  judicial decisions. In  a bid to rescues his country from the ill- effects of the Great depression, the then President of the US, F.D. Roosevelt (1932-36) initiated his New Deal programme. Many feared that democracy in the US was in peril. But the situation was saved, as two- thirds of the New deal was invalidated by the Supreme Court.

It was only as democratic principles began to disseminate in the nineteenth century, and as democratic governments began to be set up in the twentieth century (especially after the Second World Wad), that the role of the judiciary came to be increasingly emphasised in the consolidation and perpetuation of the democratic institutions an democratic norms.

Human passion for freedom is great, but freedom has often been limited by the ruling authorities throughout history. “ Men are born free, yet everywhere they are in chains” said Rousseau. However, there comes a stage when even the bare minimum of freedom needed by an individual is sought to be snatched by those in power, because this power is concentrated in the hands of a single individual or a small group of people. In such circumstances, people’s agony and bitterness become manifest, One such climactic situation was reached in the 1930s, when people were being crushed under the heavy hands of    totalitarian governments in different parts of the world. The experiences of history convinced the people that the democratic way was the only and to serve his interests. However, as selfishness, greed and passion for power are inherent in human nature, it was feared that even a democratic leader may turn authoritarian and act arbitrarily at times . therefore, sufficient checks and balances were provided. As legislature and executive are generally dominated by the some political party. Sometimes they may enact and act without any regard to the people’s will and interests. In that situation, the judiciary remains the only institution to which individuals may appeal for executive enactment or action to find out whether it is antipeople or not . once the verdict goes against such an enactment or action, the executive and legislature norms are expected to retrace their steps if the democratic norms have to survive.

Though every form of government has a constitution of some sort, in a democracy the constriction is more steadfastly abided by because of it paramount is more steadfastly abided by because of its paramount nature in the political set- up. The judiciary is   the institution that sees that the constitution is not ignored or disgraced . Also, there are instances when a constructional deadlock or dilemma renders the government helpless and  when different interpretations are possible of a constitutional provision. The judiciary here steps in as the expert and the authority on the constitution to defuse the crisis. Lastly , as democracy leaves sufficient scope for different opinions and beliefs, sometimes there may surface two major and almost equally  forceful opinions contradicting and conflicting with each other, holding out little chance of compromise . if the government adopts either of the opinions, it can be called partisan. The judiciary being regarded, and respected, as independent and impartial, its verdict is generally accepted be all the parties, and the crisis is resolved.

Several instances can be cited of the leaders having been dethroned or having had to abdicate because of judicial verdicts. In Japan, Mr Nakasone and others had to resign when they ere found guilty by the court in Bangladesh, the ex-president Mr Ershad was thrown in prison because of judicial pronouncements. The judiciary also takes over the reins of power, though rarely, in case of a political vacuum or crisis as in Pakistan after the resignation of both president(Ishaq Khan) and the prime minister(Nawaz Sharif). In India , too, the judiciary has  many landmark judgements to its credit.    For example, the election of Mrs Indira Gandhi was declared void in 1975 by the Allahabad High Court, after which she ill- advisedly imposed national emergency.

Nevertheless, the role of the judiciary is generally limited because of the balance of power tilting towards legislation in most of the democratic systems and also because of the legislature, or sometimes the executive head of the State, having power to make appointments to the judiciary. The debate on this issue has been going on for a long time and till now there has been  no unanimity on the least defective procedure in such appointments.

There are problems that adversely affect judicial independence in India. The  politics of supersession, transfer, demotion, extension of  term on monthly basis as ad hoc judges, non-confirmation of the High Court judges among other things, are disturbing trends in a democracy. There are also examples where the judges have been threatened publicly by ministers and legislators. Again, whenever the judiciary declares any law passed by the legislature as constitutionally invalid, there has been a hue and cry in the Parliament. The  court verdicts are often nullified by constitutional amendment.

All these odds before the Indian judiciary notwithstanding . it has served to stabilise, consolidate and protect Indian democracy by giving many important  verdicts. A typical verdict was in the Keshavanand Bharati case because in  this case the Supreme Court held that the Constitution has a certain basic structure which cannot be amended. This concept of ‘ basic structure’ limited the amending power of the parliament. Again , in the Minerva Mills case, by striking down clause 4 and 5 of Article 368, the Constitution Bench of the Supreme Court has rightly restored the doctrine of judicial Review which the 42^nd Constitution Amendment Act, 1976 had very substantially curtailed. More recently we have had striking verdicts on the anti- defection acts.

In general the judiciary is in a sense weaker than Parliament, which claims to be the representative of the people, the real sovereign in democracy. However, it play an important role in the survival and strengthening of the people’s  resolve to rule themselves and protect their interests and liberty. It is true that the judiciary has to depend on the executive for the implementation of its decisions but it does not mean that the executive of even those sitting in the legislature can ignore such decisions. After all, in a democracy the members of the legislature and the executive have to go periodically to the people (at the hustings ) who have high respect for the judiciary in spite of occasional aberrations. And as justice Venkatachalliah opined, unless we have respect in the judiciary, democracy cannot survive.