Points: 1. Concept of separation of powers in a democracy
2. Independent judiciary a must in a democracy.
3. Role of the judiciary in a democracy
4. Judicial verdicts have brought down rulers in a democracy.
5. The Indian situation
The three powers normally considered to be separable in the exercise of government in a democracy are the legislature, the executive and 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.
Without an independent judiciary, the system may be termed “democratic centralism” which is practically equivalent to 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. Further, their salaries and allowances are not changeable at the whim of executive or the legislature. However, 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.
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 and 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. Therefore, if they overstep their limits, the judiciary must restrain them.
As legislature and executive are generally dominated by the same political party, sometimes they may enact and act without any regard to people’s will and interests. In that situation, the judiciary remains the only institution to which individuals may appeal for help. And the judiciary is then expected to study any such executive enactment or action to find out whether it is anti-people or not. Once the verdict goes against such an enactment or action, the executive and legislature 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 constitution 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 constitutional 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.
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 were 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 the President (Ishaq Khan) and the Prime Minister (Nawab 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. Recently, in 2013, Lalu Prasad Yadav lost his membership of the Parliament due to the historic judgement of the Supreme Court which pronounced that consequent to conviction in a criminal case, members of Parliament and legislatures would lose their positions.
However, 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 Parliament. Again, in the Minerva Mills case, by striking down clauses 4 and 5 of Article 368, the Constitution Bench of the Supreme Court has rightly restored the doctrine of Judicial Review which the 42d 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 a democracy. However, it plays an important role in the survival and strengthening of the people’s resolve to rule themselves and to protect their interests and liberty. As Justice Venkatachalliah opines, unless we have respect in the judiciary, democracy cannot survive. *ZZZ*