Sentinels of Democracy:An Independent Judiciary
Human society has always felt the need of creating some institution which may govern its affairs. This institution is commonly known as Government. It has been noticed that sometimes instead of serving the society, Government had the tendency to ignore its interests. The Government, many a times, was found to exist for the aggrandizement of those who wielded it and it became even an instrument of torture for those whom it was expected to serve. The governors, typified by the absolutist Kings, invariably tended to become tyrants, and they converted the instruments of government into engines of oppression. At times, instead of providing an individual the ideal conditions for development, government just tried to crush and defeat his growth. A search was, therefore, necessary to be made to find out a suitable form of Government to serve the interest of humanity.
Democracy was invented by the Society to be the finest means for serving the needs of man. After securing it, it was discovered that it subserved the interests of the individual and did not defeat them. It furnished him the conditions and circumstances for his fullest growth and development and it was felt that it existed for him and did not ride rough-shod over him.
Democracy, as we know, functions through the instrumentality of the legislature, rule of law being a requisite ingredient of this process. Rule of law always operates through the medium of Courts. Broadly speaking, the legislative process controls the government in matters of policy. A democratic legislature ensures that only such policies were adopted by government as will subserve the interest of the community and that only such men possess the power to execute those policies as can be trusted with the task. Rule of law •therefore ensures that the governors do not while executing these policies of the society, act arbitrarily, injuring the individual in life, liberty, property or reputation.
It is difficult, nay, almost impossible, to define the expression 'rule of law'. Prominence for the first time was given to this expression by a famous constitutional writer— Dicey. Even Dicean concept recognises that the heart of the doctrine would lie in the recognition, by those in power, that their power is wielded only subject to certain controls and restraints which we can conveniently call the socio-ethical convictions of the society. The International Commissions of Jurists in its meeting held at Delhi in 1959 recognised that the rule of law is a dynamic concept for the expansion and fulfilment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society but also to establish social, economic, educational and cultural conditions under which the legitimate aspiration of the people and their dignity may be realized.
In democracy all policy making must ultimately justify itself by winning the approval of the people and, therefore, the direct legislation must not be obnoxious to the values cherished by the people and must be in tuna with the larger social and moral aspirations of the people. In this sense the courts must also continue to give and maintain the intellectual and moral leadership i a the society by interpreting the laws in the light of the aspirations of the people. Whenever courts in a country cease to provide leadership, they have fallen into disrepute and their status, powers and existence have been in danger. But it does not mean that the courts in order to keep their leadership should enter the arena of politics. In the name of enforcing the constitution or the rule of law they should not defeat vital economic and social policies overwhelmingly approved by the nation; they should not allow themselves to become media for reimposing upon the people policies which have been rejected by them at the polls. In other words, while, seeking to run clear of politics they should not allow their decisions to slip deep into politics itself. No doubt the courts must be constantly aware of great social and economic problems and philosophies of their times, but while doing so every care must be taken by them to keep aloof and not to align themselves with any philosophy of political party except the welfare of the nation.
In India, the Constitution has provided a great responsibility on the courts to review the enactments of Parliament as well as the State Legislatures. Unlike England, the courts in India can declare the laws made by Parliament as null and void. But that is not of much consequence because the Parliament itself being a democratic institution would not permit powers to the executive and it is Parliament itself that sees than the principles of rule of law are adhered to by it. The courts also keep in view while discharging their function of judicial review to put the construction on the enactments as is consistent with the rule of law. In a well known case of De Keysor's Royal Hotel, the English Parliament authorised the executive for the acquisition of private property for carrying on war operations but when the question of just compensation for the payment to the owner of the property arose, it was found that the law was silent but the courts interpreted that the principle of paying just compensation was inherent in the rule of law and, therefore, even-when the Parliament had the power to ignore that principle it was unthinkable that Parliament will do so or had done so in that case.
Judiciary has a creative role to play in democracy. Justice Douglas has gone to the length of saying that Judiciary is in a high sense the guardian of the conscience of the people as well as of the law of the land. The conscience of the people is not always reflected in legislation. Without doing offence to the doctrine of judicial restraint, it can by its judgment awaken the conscience of the people to the evils in Society which are crying out for a remedy and quicken the rate of progress where social legislation is tardy or ineffective. A freedom as embodied is a star of first magnitude in the constitutional constellation, the Rule of Law is also a star of magnitude if not possessing the same brilliance as the former. The Rule of Law emerges from Article 14 of the Constitution which prohibits the state from denying to any person equality before the law or the equal protection of the laws. Therefore, in the eye of the Constitution all citizens are equal and have equal rights. No discrimination is permitted as between citizen and citizen and no citizen is branded as a second class citizen or suffers from any disqualification because of his caste, community or sex. Even the lowest of the land can aspire to become the highest of the nation. This represents the triumph of secularism which is one of the most important pillars on which the edifice of our Constitution stands.
Chief Justice Warren once confessed that when he heard the cases affecting the rights of citizens he always asked himself a question ''Is it fair". There may be possibility that the law is silent but the silence of the law cannot make the judiciary of the country helpless to give relief to the people who approach it. The best example of the functioning of the courts can be found in the case of Somersett. In England a ship anchored in London with slaves who were made captive on the board. In a habeas corpus petition filed by one Somer-sett, it was discovered that there was no such law in England which could make a slave a free man as no anti-slavery statute was ever passed by the English Parliament and in the absence of any positive law, the captor pleaded that he was doing nothing illegal in England by indulging in slave-trading. He asked the courts "where is the law that prohibits buying or selling of the slaves". Rejecting his plea Lord Mansfield, an eminent Jurist of his age, observed that the air of England was too pare for a slave to breathe. In other words, Lord Mansfield answered that the law was in the air, i. e. it was in the legal and political climate of England, in which the institution of slavery could just not survive for a moment. It was the principle of rule of law which made Somersett a free man by the verdict of Lord Mansfield though it was based on no statute. It is in this manner that the courts can come forward to protect the citizens from being: illegally deprived of their right so pionsly enshrined in Chapter III of our Constitution. For being free and remaining free no legal justification need be searched for or; produced: freedom is presumed in the man and is the rule of nation; restraint is merely an exception which must be established and justified. by reference to specific legal authority. In this background the law Courts function as sentinels to extend the protection to the freedoms of people in free countries. Our country is very much wedded to democracy that has given rise to the high aspirations of our people which are beautifully expressed in the meledious tone of the preamble of our Constitation., It is therefore but natural for the people in India to look upto our judiciary for giving an atmosphere which is pure and which can zealously guard the freedoms of the people guaranteed by the Constitution. (Courtesy All India Radio, Jaipur).A
Author Name: Hon’ble Justice V P Tyagi
