Constitutionalism and judicial governance

The judiciary’s effort to infuse accountability in the functioning of government institutions and the growth and development of human rights jurisprudence have demonstrated the importance of judicial governance.

C. Raj Kumar ,HINDU EDITORIAL PAGE OCTOBER 18,2007

When the Constitution of India was adopted on November 26, 1949 by the Constituent Assembly, its members were mindful of the challenges of governance. Speaking after the completion of his work, Dr. B.R. Ambedkar, Chairman of the Constitution Drafting Committee, said: “I feel that the Constitution is workable; it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.” The members also recognised that the mere adoption of a good Constitution would not culminate in the values of constitutionalism permeating the civil and political culture in the country, nor could it ensure good governance.

Yet there were great expectations that in the years to come, the Constitution would move from a document worthy of admiration to a solid commitment on the part of power holders. It is this ability of Constitutions to act as limitations on the exercise of power, and in that process delineate the functions of the government and outline the rights of the people, that distinguishes them from other legislation. The experience of 60 years of constitutional governance helps us understand the working of the Constitution in general and the role of the judiciary in particular.

Constitutional historian Granville Austin said the transcendent goal of the Indian Constitution was to promote “social revolution.” For this, the framers intended to fulfil the basic needs of citizens, and hoped that it would bring about fundamental changes in the structure of Indian society. The theme of social revolution runs throughout the proceedings and documents of the Constituent Assembly. This theme formed the basis of the decision to adopt the parliamentary form of government and direct elections, the fundamental rights, the directive principles of state policy, and many of the executive, legislative, and judicial provisions of the Constitution. Although the social revolution theme was espoused throughout the Constitution, Parts III and IV — fundamental rights and directive principles of state policy — demonstrate the core of this commitment. These are perceived as the conscience of the Constitution, because they provide the base for human rights and human development policies for governance. The Constitution ensures that the fundamental rights are guaranteed as a matter of legal obligation rather than as a political concession. These are basic human rights and have been interpreted as civil, political, economic, social and cultural rights. Articles 12-35 of Part III elaborate on the fundamental rights. Articles 36-51 outline the framers’ vision for good governance and they constitute the directive principles of state policy. They are not enforceable in a court of law, but the principles laid down therein are fundamental to governance. It is the duty of the state to apply these principles in making and implementing laws.

The dialectical relationship between promoting constitutionalism and the development of judicial governance presents three important challenges for understanding the role of law and institutional politics in India:

Role of the judiciary: The judiciary is uniquely placed in the matrix of power structure within the system of governance. Judges are not elected but clearly have the power and indeed the responsibility to check the exercise of powers and actions of elected representatives and appointed officials. The judiciary as an institution is vastly respected, notwithstanding huge challenges in ensuring access to justice, judicial process and issues of transparency and accountability. It is vested with ensuring that the rights and freedoms of the people are protected and the powers exercised by the government in adopting policies are in accordance with the Constitution and other legislation.

In theory, if the different branches of the government adhere to the basic principle of separation of powers and function within their limits, it is considered a sound system of governance. In practice, however, a number of issues have emerged and challenges occurred. It is in this context that the three branches of the government — the legislature, the executive and the judiciary — need to have a certain degree of trust in, and deference to, the actions of one another in matters within their respective jurisdictions.

However, trust and deference in relation to the actions of a particular branch should not undermine the judiciary’s responsibility to adjudicate on the constitutional and legislative validity of the actions of the government. Clearly, this delicate balancing act of rightfully intervening when necessary requires a deeper understanding and appreciation of the principles of constitutionalism. Rule of law is about all people and institutions respecting laws and acting in accordance with the law. The legislature and the executive as collective powerhouses are bound by these principles as much as ordinary citizens are.

Judicial governance: The term ‘judicial governance’ in itself is subject to challenge as the judiciary is not supposed to be involved in ‘governance’. However, the effort of the Indian judiciary to infuse accountability in the functioning of government institutions, and the growth and development of human rights jurisprudence have demonstrated the central importance of judicial governance. Of course, there is no doubt that it has posed critical challenges to parliamentary accountability and executive powers and, more important, reinforced the need for improving efficiency and effectiveness of governmental institutions.

The need for social reform preceded the Constituent Assembly bestowing on the judiciary the role of guardian of individual rights. Hence, the protection of liberties within the constitutional framework needed to be balanced with achieving social reform. The Supreme Court perceived itself to be an institutional guardian of individual liberties against political aggression. In that process, it went beyond the framers’ vision of achieving an immediate social revolution. It took upon itself a role similar to that of the United States Supreme Court as defined by Chief Justice Marshall in Marbury vs. Madison (1803). This perception led the court to develop implied limitations on the powers of the political branch that is analogous to the U.S. judiciary’s approach to the separation of powers. The best known of these implied limitations, the ‘basic features limitation’, precludes the Indian Parliament from amending the Constitution in such a way as to displace its basic features.

Civil society expectations: Legal provisions relating to human rights as a normative framework provide little guidance and help for the masses in India who are aspiring to fulfil their basic rights, in particular their right to acquire and experience the basic needs of survival and existence. The civil society seeks to enforce good governance so that all human rights are promoted and protected. It is imperative for the Indian society to work towards internalising the values of constitutionalism so that the exercise of all powers is subject to accountability.

Undoubtedly, the wider civil society has embraced the notion of judicial governance, given the fact that it provides certain social expectations for creating accountability. The relaxation of the rules of locus standi; recognition of a range of human rights under the “right to life” provision of the Constitution, and the development of public interest litigation are important milestones in meeting civil society expectations on the working of the judiciary.

However, given the range of injustices in our society, institutional responses, including that of the judiciary, need to be further expanded. The Indian experience has demonstrated that the initial judicial recognition of human rights has culminated in the passage of an amendment, which guarantees the fundamental right to education.

If democracy is to become meaningful in India, it should be based on two important factors: enforcement of the rule of law and the reform of the political system – each dwelling upon the other. The judiciary is well suited to support both these initiatives.

(C. Raj Kumar is Associate Professor of Law at City University of Hong Kong and Honorary Consultant to the National Human Rights Commission in India. Email: crajkumar4@yahoo.com)