India gained her freedom at a great cost. Every Indian, therefore, has to use his liberties to constantly question the inconsistent actions of those in power, because democracy gives no tickets to free meals. It is for us to assert and guard liberty and not be complacent about any encroachment.
It is more important for people to cherish liberties and constantly question, through every legitimate channel, the moves and policies which undermine democratic government and displace creepingly the liberties that the Constitution guarantees.
Those nations who reposed their trust in a democratic way of governance must be prepared for imperfections. But its people have to exercise their freedom to question those governing them unremittingly and unfailingly, and through this dialogue, realise their aspirations.
It may be a fundamental right, right to get your ration card or to change your date of birth, if you don’t get justice internally you have to go to the court- there is no other way.
The rule of law through democracy is a continuing work-in-progress where people’s scrutiny is paramount and courts are part of the dialogue. There is a thin line that divides the rule of law from the rule by law – one is democracy and the rulers are the people, and the second one is the rule by a monarch, a dictator or tyrant. The courts are the last stop to ensure continuity of the rule of law when all else fails.
It is now more than ever that the “unseen, unheard and seldom-remembered people” are protected by those who have the voice and who can go and fight for them. Because if you fight for others, you fight for yourself…when your turn comes, there will not be anyone. Courts face the charge of activism when they deal with controversial issues.
On the questions, how courts engage with policy, they disrupt the exercise of legitimate power wantonly and how accountable they are.
The courts while exercising powers of citizen, face the charge of activism when they deal with controversial issues and one must remember that courts are placed in a system of checks-and-balances and that characterising courts or judges as “activist” or “strict constructionist” or “conservationist” is limiting.
The Supreme Court of India, unlike other democracies, has been conferred the advisory role. Our Constitution framers recognised that it is uniquely positioned to pronounce, if consulted, on the validity of the laws and policies which the Parliament or the Executive wish to bring forward.
This is a reinforcement of the fact that courts are expected to play a role, it may not be an active role, but a significant role to cross check the governance.
Unless we know what we can or cannot speak, it is very easy for the State to criminalise us. In the realm of free speech and other liberties, the Supreme Court has spoken on several issues several times- is a publication obscene, what constitutes an incitement that is likely to affect communal harmony, the extent of regulation permissible at any given point of time.
These are very important in governance because unless you know what you can speak and what you cannot speak, it is very easy for the State to criminalise any content.
Reservation cannot be done away with so long as Society is unequal. Let us review the 1992 judgment by nine judges of the Supreme Court in Indira Sawhney “as an elaborate discourse on the need to balance the right to equality with the aspirations of those who are in the most marginalised sections of the society and for whom the rule is the rule of reservation was brought in.
Reservation, at least in regard to scheduled castes and scheduled tribes and most backward classes, is essential and we cannot put a time-limit on it. While the Muslim minorities are worst than the Dalits, and most back word among OBCs across India, the State is carried forward by anti Muslim aspirations.
It is not possible to away with it as long as society is unequal and people are socially and educationally backward! So long as the society is unwilling to cast-off the shackles of caste, these quotas are needed rather additional quota for Muslim minorities needs be given, because they underline empowerment.
While ensuring democracy, role of Election Commission has been spectacular and court played a supportive, collaborative role in strengthening the democracy. The role of the Court as a supportive and collaborative institution to strengthen the Election Commission as an arbiter of free and fair elections-
Election Commission has played a pivotal role in ensuring smooth, free and fair elections. If one goes back to the past and remembers how routinely, and in an endemic manner, we used to read about rigging during elections, the role of the Election Commission has been spectacular.
In democracy, the Courts are corrective institutions falling back to the basic values in the nation’s Constitution. The judgements are part of ongoing interchange with other institutions of democratic government. In case their logic is sound, other wings readily accept it. If it is flawed or unworkable, other wings reverse it through legislation. Courts also correct themselves through overruling, narrowing the impact of previous judgements etc.
All courts choose normative, objective tools to support their conclusions and judgments; the weight given to precedent is important because the courts stress the legitimacy of their methods in the context of previous judgments. The courts do not impulsively strike down laws or policies which are the result of layered and nuanced scrutiny. The role of the court is to see that the impact of the measure is rooted in the Constitution.
The Executive’s policy formulation agency has vast powers and that the policy it proposes, to be embodied into law, is scrutinised by the Legislature by a bicameral process. Any citizen can approach the High Court or Supreme Court when it is enacted on the grounds that it violates some provision of the Constitution. The court then decides this by adopting rules of interpretation, principles of proportionality, reading down etc.
The courts adopt two levels of scrutiny – low, threshold scrutiny, where the Executive is given the greatest latitude and play in the joints in making law in economic and commercial arenas; and the highest level of scrutiny, where the liberties of citizens are concerned, where the highest standards of reasonableness and non-arbitrariness are applied.
The courts are uniquely placed in the system of governance, that judges are not elected but they have the power, responsibility and duty to check the exercise of power by elected representatives, that rights and freedoms of people are protected and the power exercised by government in adopting policies is in line with the Constitution.
In democracy, the courts perform a gatekeeping function, they are in the nature of a watchman. The Constitution places the judiciary in a position to shape the practice of legitimacy and accountability in the government and other institutions. The role of the judiciary in governance can be seen in two ways- proactively protecting people’s fundamental rights in changing times and upholding core values of the Constitution, and bringing in fairness, transparency and accountability to the rule of law; and secondly, courts positively assist in governance, interpreting new-age laws and filling policy gaps in existing norms.
Comparatively, in how several states in the USA had enacted legislation banning interracial marriage and how the US Supreme Court, in Loving v. State of Virginia, declared that the freedom to marry or not to marry a person of another race resides with the individual and cannot be infringed by the State, and how this incrementally led to the freedom of choice.
In the case of the United States v. Nixon– which dealt with the Watergate scandal tapes which President Richard Nixon refused to part with on the ground of privilege. The court in a unanimous decision held that tape recordings had sufficient likelihood in the trial that each of them contained conversation relevant to the offences charged. The court directed the President to release the tapes. This has a tremendous impact on contemporary society and new rights were created and new standards of accountability of power-holders in law were created.
The judgment of the US Supreme Court in Youngstown Sheet where the Court limited the power of the President to seize private property. It served as a check on the most far-reaching claim of Executive power and signalled the courts’ increasing willingness to interfere in political questions.
There was a programme which provided a shield from deportation for two-year terms to nearly 8 lakh persons who had immigrated to the US as children. They were called ‘dreamers’. When the administration sought to wind down or give up this programme saying it was an illegitimate amnesty for non-citizens, the Supreme Court struck it down, holding that the agency had not complied with procedural requirements to give a reasoned explanation
The 2019 decision of the US SC in Department of Commerce v. New York where the Executive was asked to account for why citizenship was included as a question in the census exercise and which the administration had no answer to is praise worthy.
As regards the UK, the judge mentioned the famous Spycatcher case– a person had joined the British espionage service and during his employment, he was bound by the confidentiality agreement, preventing disclosure. After the spy retired and announced his decision to write a book, the UK government sued for injunction.
The court held that it would not help prevent the publication of information that throws light on past working of the government, that the disclosure itself will serve the public interest in keeping the community informed. So the value of transparency- that the citizen expects to know what its rulers do after they are elected- was underlined.
Prize worthy, the 2019 judgment when the Boris Johnson government, just before negotiating Brexit, avoided Parliamentary questioning by proroguing the UK Parliament. The court said that the issue concerns the right of citizens at large to be aware of what the government is doing.
The Supreme Court, in a very swift judgment, ruled unanimously that the prorogation was unjustifiable and the order of prorogation was quashed. The court held that any action frustrating the ability of the Parliament to carry out its Constitutional functions would be null.