A speech on Court(s) in a Constitutional Democracy by V. Sudhish Pai on 3rd International Bengali Conference organized by Bangla Worldwide
6 April, 202401:21:04 PM
Democracy essentially means the rule of the majority. As Chandrachud, J observed in the PM’s Election case, “Forgetting mere words which Tennyson said: ‘Like Nature, half reveal and half conceal the soul within’, the substance of the matter (democracy) is the rule of the majority and the manner of ascertaining the will of the majority is through the process of elections.” Constitutional democracy is one where the majority ‘will’ and rule is controlled and directed by constitutional principles or constitutionalism. While the consent of the governed is a basic value in a democracy, constitutional democracy cannot exist in any real sense without the rule of law. While rule of law has many different facets and meanings, one of its most essential elements is that every executive action, if it is to operate against or to the prejudice of any person, must have legislative backing-legislative authority to support it. But in countries like ours with a written, justiciable constitution and a bill of rights, the legislature is also subordinate to constitutional rights, values and limitations. That is the concept of the absolute reign of law: the legislative power too is subject to constitutional limitations. Thus in India, we have not only the rule of law, but also the absolute reign of law.
In his First Inaugural Address in 1801, Jefferson qualifying the majority principle, insightfully remarked thus, “All too will bear in mind this sacred principle that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable, that the majority possess their equal rights which equal law must protect and to violate it would be oppression.” We see the practical operation of this reflected in the limitation in Art 13(2) of our Constitution which forbids the passing of a law taking away or abridging fundamental rights
There are thus two institutions which seem to be fundamentally contradictory. There is first the institutionalization of the principle that the will of the majority must prevail and that government must conform to its will as per the democratic principle. As against that is the institutionalization of the principle that powers of government are limited, that there are things which even a majority cannot do as they are beyond the ambit of the legislature and the executive.
The democratic ideal involves two strands. First, the people entrust power to the government in accordance with the principles of majority rule. The second is that in a democracy there must be an effective and fair means of achieving practical justice through law between individuals and between the State and individuals. Where tension develops between the views of the majority and individual rights a decision must be made and sometimes a balance has to be struck. The best way of achieving this purpose is for a democracy to delegate to an impartial and independent judiciary this adjudicative function. Only such a judiciary acting in accordance with principles of institutional integrity and aided by a free and courageous legal profession, practising and academic, can carry out this task, notably in the field of fundamental rights and freedoms. Only such a judiciary has democratic legitimacy. The judiciary owes allegiance to nothing but the constitutional duty of reaching through reasoned debate the best attainable judgments in accordance with justice and law. This is its role in the democratic governance of countries. At the root of it is the struggle by fallible judges with imperfect insights for government under law and not under man. [cf: Lord Steyn, Democracy through Law]
Cardozo so neatly and discerningly elucidated the essential judicial function and the judge’s role in a constitutional democracy: “The great ideals of liberty and equality are preserved, by enshrining them in constitutions, and consecrating to the task of their protection a body of defenders. By conscious or unconscious influence, the presence of the restraining power, aloof in the background, but none the less always in reserve, tends to stabilize and rationalize the legislative judgment, to infuse it with the glow of principle, to hold the standard aloft and visible for those who must run the race and keep the faith. …we find its chief worth in making vocal and audible the ideals that might be otherwise silenced, in giving them continuity of life and expression, in guiding and directing choice within the limits where choice ranges. This function should preserve to the courts the power that now belongs to them, if only the power is exercised with insight into social values, and with suppleness of adaptation to changing social needs.” [The Nature of the Judicial Process]
Democracy is essentially a balance between constitutional rights and public interests. It is for the courts to maintain this delicate balance. What prevails in a constitutional democracy is constitutional supremacy- all organs being controlled and regulated by the Constitution and functioning within the confines of their powers with the judiciary constituted the arbiter. The guardianship of the judiciary in enforcing the constitution, expands when there is constitutional division of powers not only between the three branches – executive, legislature and judiciary, but the State itself is divided into two units, national and state, with a consequential distribution of powers between the two units i.e., the constitution is federal. The special functions of a federal judiciary are: maintaining the supremacy of the constitution; determining controversies between parties to the Federation; securing uniformity in the interpretation and application of the constitution as amongst the states. As the umpire or arbiter in the federal system, the judiciary’s function of acting as the guardian of the constitution is known as judicial review. The power of judicial review to maintain the supremacy of the constitution is vested generally in the highest federal court. As the final interpreter of the constitution, its interpretation is binding on all organs of the State. Constitutional supremacy is limited government under a fundamental law with the judiciary constituted as its monitor, defender and protector. As the Supreme Court has said it is for the court to protect the rights and liberties, to uphold constitutional values and enforce constitutional limitations by acting as a sentinel on the qui vive. This is the judge’s primary role: protecting the constitution and upholding the rule of law.
‘Judicial review’ is an adjunct of ‘limited government’. If a constitution is to operate as a legal limitation there must be some agency to enforce it through the legal process. That is the judiciary. In India that power is specifically conferred by the Constitution- Arts 13, 32,136, 226, 227. We also have Articles 141(law declared by the Supreme Court is binding on all) and 144 (all authorities shall act in aid of the Supreme Court).
It may be said that the concept of limited government and judicial review constitute the essence of our constitutional system and it involves three main elements: A written constitution setting up and limiting the various organs of government; the constitution functioning as a superior law or standard by which the conduct of all organs of government is to be judged; a sanction by means of which any violation of the superior law by any of the organs of government may be prevented or restrained and, if necessary, annulled. This sanction, in the modern constitutional world, is ‘judicial review’ which means that a court of competent jurisdiction has the power to invalidate the act of any governmental agency, including the legislature on the ground that it is repugnant to the Constitution. [cf: Durga Das Basu, Limited Government and Judicial Review (TLL)]
What emerges is that in a limited government under a written constitution all organs of the State are creatures of the constitution and have to act and function under the constitution and in consonance therewith. What is, therefore, supreme is the constitution and what obtains is constitutional supremacy, the judiciary having the last word in the interpretation of the constitution and constituted as its monitor, defender and protector. While the judiciary enforces the legal limitations imposed by the constitution, is it not bound by any such limitations? The constitution operates as a limitation on all organs which includes the judiciary. For, otherwise the judiciary would stand outside and independent of the constitution instead of being a creature of the constitution. And what is the sanction to keep the judiciary also within the bounds of its powers? It is, in a large measure, the judges’ own sense of self restraint. Constitutional scholars now would be increasingly reluctant to use catch phrases like supremacy of Parliament or answer current issues by appeal to some doctrine of sovereignty.
But all this is not self executing. The power of judicial review is exercised through the agency of courts. Law including constitutional law cannot and does not provide for every contingency and the vagaries and varieties of human conduct. Many times it is open ended. The majestic vagueness of the Constitution, remarked Learned Hand, leaves room for doubt and disagreement. It is therefore said by critics and scholars that this also leaves room for, and so invites, government by judges- especially those who are free not only of appellate review, but of elections as well and have an assured tenure.
In this imperfect setting judges are expected to clear endless dockets and uphold the rule of law. Judges must be sometimes cautious and sometimes bold. They must respect both the traditions of the past and the convenience of the present. They must reconcile liberty and authority, individual freedom (human rights) and State/national security, environment and development, socio-economic rights of particularly the weaker sections of society and development; the whole and its parts, the letter and the spirit. “The major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence; and the difficulty has been to discover the practical means of achieving this grand objective and to find the opportunity for applying these means in the ever shifting tangle of human affairs.”
All this throws up matters of great moment and in a way summarises the contemporary issues and challenges for judicial review. These challenges and issues have always been there but they have acquired new dimensions and poignancy. Imbuing all acts of all authorities with constitutionalism and constitutional culture, entrenching the constitutional vision of justice -making it real and meaningful for the people, vitalizing democracy and achieving all this within the framework of separation of powers and democratic functioning is the real challenge for, and the goal of, judicial review in a constitutional democracy.
Despite the seemingly anti majoritarian character of judicial review the court must exercise this power to protect individual rights not adequately represented in the political process; but the court should also decline to exercise judicial review in other areas to minimize the tension between judicial review and democracy and to conserve its resources for institutional prestige. Judges and lawyers are not free to legislate any moral theory.
In theory and in practice it is not easy to reconcile amicably judicial review with democratic governance. “The task of accommodating judicial review with democratic governance is inherently problematic…. Within a system of free government the Court fulfills an important though limited role as an auxiliary precaution against both the abuse of governmental power by a tyrannical minority and the excesses of majoritarian democracy. Judicial review becomes controversial only when the Court thwarts popular will or goes too far and too fast with its construction of the Constitution. Judicial aggression in constitutional politics is lamentable and objectionable. Yet far from being antithetical judicial review is essential to the promise and performance of free government.”[David M. O’Brien, Judicial Review and Constitutional Politics: Theory and Practice]
The power of judicial review extends over a broad range of public issues. The court touches many aspects of public life. But as has been said it would be intolerable for the court finally to govern all that it touches, for, that would turn us into a Platonic kingdom contrary to the morality of self government. A simplistic and inaccurate enunciation of judicial review is that it is the power to construe and apply the constitution in matters of the greatest moment against the wishes of a legislative majority which is in turn helpless to affect the judicial decisions. There are issues of the utmost importance which the court may pick, define and decide in fulfillment of its role as the constitutional authority of last resort.
It is very often by judicial interpretation that you enliven and make purposeful the constitution or the law. The court’s allegiance to the constitution ensures its own subordination. But creativity and allegiance are not necessarily antagonistic; they may with true discernment augment each other. Done wisely and with necessary circumspection, judicial law making within limits is both laudable and legitimate. Judicial response to different fact situations varies and it is an accepted fact of constitutional interpretation that the content of justiciability changes according to how the judges’ value preferences respond to the multi dimensional problems of the day. An awareness of history is an integral part of those preferences. Thus the evaluation of diverse, sometimes elusive factors, inevitably brings into the judicial verdict the judge’s own values and preferences. The simple truth is that the jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind. But as Mathew, J pointed out they are not too elusive for judicial perception; great judges are those who are most capable of discerning which of the gradations make genuine difference.
It is important to bear in mind that unconstitutionality and not unwisdom is the narrow area of judicial review. For the removal of unwise laws appeal lies to the ballot box and the process of democratic government. Any doubt regarding the validity of a law must be resolved in favour of its constitutionality. The limited task of the court is to interpret the constitution as it is, not to venture starry eyed proposal for reform. What the constitution should contain is not for the courts to decide that is a question of high policy and the courts are concerned with interpretation of laws, not with the wisdom of policy underlying them. A commitment to the legality of laws and their enforcement for public good is to be realized. The court must always be careful in maintaining the right balance between the different wings of government. Mistrust of government is violative of comity between instrumentalities. Courts must be tempered by the thought that while compromise on principle is unprincipled, applied Administrative Law in modern complexities of government must be realistic. There must be a sensible approximation, there must be elasticity of judgment in response to the practical necessities of government which cannot foresee today the developments of tomorrow in their nearly infinite variety.
One cannot forget or overlook the criticism that judicial activism will sometimes result in democratic debilitation. When a society leaves all or its important decisions to the judiciary it is a weak society which misses the excitement of democracy and of sorting out things by the democratic process. The exact limits of the adjudicative methods cannot be fixed and rigid. But if they are totally forsaken the judge loses credibility as a judge. The courts’ activism nurtures great hopes and arouses great expectations which may remain unfulfilled and engender a critical sense of disenchantment and desperation. When a people despair of their institutions, force may get ahead masquerading as ideology.
The power of judicial review is an integral part of the process of our constitutional government. The court has the duty of interpreting the constitution in many of its most important aspects, and especially in those which concern the relations of the individual and the State. The political idea and justification of the power is that there are some aspects and phases of national life which should be beyond the reach of any majority or the outcome of any election. They are permanent values which it is for the court to uphold and protect. Constitutional review by an independent judiciary indeed, in a way, fosters democracy. For, pluralism is the soul of democracy; judicial review as constitutionally envisaged facilitates the quest for an open society with widely dispersed powers. Particularly in a vast country with such great diversities of religion, language, race and culture and largely different regional problems, such an organization of society is the assured foundation for the realization of democratic yearnings.
It is inevitable that the legislatures tend primarily to reflect immediate interests. But it is important and essential that long term interests and values be given due consideration. Until the legislatures do so, the judiciary seems to inherit the assignment by default; and if the assignment is judiciously performed in the manner indicated by great judges, ‘the court can be regarded,’ to quote Prof. Robert McCloskey, ‘not as an adversary, but as an auxiliary to democracy’. Or as Justice Mathew put it, paradoxical though it may appear, the judiciary is both an ally of majoritarianism and its critic and censor.
Learned Hand defended entrusting the construction of the constitution insofar as it is ‘an instrument to distribute political power’ to an independent judiciary. Conflicts over authority are inevitable in a system of divided power. It is ‘a daring expedient’ to have them settled by “judges deliberately put beyond the reach of popular pressure. … independent judges are most likely to do the job well.”
It has been observed by some scholars that the reciprocal relation between the court and the community in the formation of policy may be a paradox to those who believe that there is something undemocratic in the power of judicial review. But the work of the court can have, and when wisely exercised does have, the effect of not inhibiting but of releasing and encouraging the dominantly democratic forces. For, in a democracy life in all its aspects is an attempt to express and to fulfil a far reaching moral code.
In one sense safeguards against the abuse of the power of judicial review can be found also in the transparency of the judicial process which allows the public to assess the merits of a judicial decision and in the judges’ own desire to maintain a strong judicial reputation. As the Supreme Court said recently, “A judge is judged every day by the lawyers, litigants and the public, as the courts are open and the judges speak by giving reasons in writing for their decisions.” [Anna Mathews v Supreme Court of India, WP (C) No.148 of 2023 decided on 10.2.2023]
There is no doubt that “in the exercise of their powers of judicial review, courts should be as wise and statesmanlike as their capacities and temperaments permit- wise as judges, wise in their concern for the effectiveness of their interventions into public affairs, and wise too in adapting the constitution to changing conditions….” Justice Stone’s admonition-“the only check upon our own exercise of power is our own sense of self restraint” bears constant recall. But he made clear that self restraint is not an excuse for inaction; it is rooted in a respect for the dignity and high purpose of the other branches of government and a sympathetic understanding of the problems they must try to resolve.
But really there is no contradiction between democracy and judicial review. It is arguable that the substantive law of judicial review represents the greatest contribution of the common law in the last century. As Lord Bingham famously remarked in the Belmarsh case the enforcement of law by an independent judiciary is now regarded as a cornerstone of a democratic society. The purpose of judicial review primarily is to give effect to Parliament’s will. The function of the court of judicial review is to ensure that all authorities act within the confines of their power. ‘The maintenance of the rule of law is in every way as important in a free society as the democratic franchise.’ The link between judicial review and rule of law is that judicial review is the exercise of a constitutional power which the rule of law requires.
What is the accountability of judges in a democracy must be properly understood and appreciated. Judges are accountable not in the same sense in which politicians are. Democracy and majoritarianism are not synonymous. In the context of governance or politics, democracy is the process and government by the majority is the outcome. In the context of human rights or fundamental rights, democracy means the rights of individuals where the majority has little, if any, place. Judicial accountability in a rights–democracy context does not mean political accountability to effectuate the majority will or accountability to the majority. It really means the assurance to each individual that the process of determining the individual rights is transparent, impartial and objective. It is trite that there is no principle more basic to our system than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review.
In order to be protected by the rule of law we must follow the law even when we disagree with it. A realization that all our liberties depend upon compliance with law is something that runs deeper in the whole system and is more enduring. “Constitutionalism works, our liberties are protected and our society is free because….people as a whole realize that liberty for the weak depends upon the rule of law and the rule of law depends upon voluntary compliance.” This is the all important but fragile faith which every generation needs to cherish, nurture and carry forward.
This contest and reconciliation between conflicting principles and goals is not limited to law. “When in any field of human observation, two truths appear in conflict, it is wiser to assume that neither is exclusive, and that their contradiction though it may be hard to bear, is part of the mystery of things.” But as Justice Frankfurter points out judges cannot leave such contradictions as part of the mystery of things, they have to adjudicate and if the conflict cannot be resolved, they have to arrive at an accommodation of the contending claims. This is the great challenge for a judge and “the agony of his duty.”
Constitutional choices have to be made, so also policy initiatives and choices and legislation consequential to or supportive thereof. Whose right is it to choose and experiment and may be err? Should judges exercise the ‘sovereign prerogative of choice’? That should belong to and be exercised by the executive and legislative branches of government. Only in case of illegality or unconstitutionality should the court intervene, ie, only in cases that leave no room for reasonable doubt. The constitution outlines principles rather than engraving details and offers a wide range for legislative discretion and choice. And whatever choice is rational and not forbidden is constitutional. Governmental power to experiment and meet the changing needs of society must be recognized. To stay experimentation may be fraught with adverse consequences. In the exercise of the high power of judicial review, judges must ever be on the guard not to elevate their prejudices and predilections into legal principles and constitutional doctrines.
If judicial modesty and restraint are not accepted and if judicial activism or aggression is to be the rule in matters of policy and law making, some basic issues remain. Is government by judges legitimate? Democratic processes envisage a ‘wide margin of considerations which address themselves only to the practical judgment’ of a legislative body representing a gamut of needs and aspirations. The legislative process, it is trite, is a major ingredient of freedom under government. The legislative process does not seek the final truth, but an acceptable balance of community interests. To intrude upon such pragmatic adjustments by judicial fiat may frustrate our chief instrument of social peace and political stability. If the court is to be the ultimate policy making body, that would indeed be judicial imperialism without political accountability. The inputs that the judiciary can get would be inadequate and not reflecting the diversity of interests and “inadequate or misleading information invites unsound decisions.” Moreover, such a system will train and produce citizens to look not to themselves for the solution to their problems but to a small and most elite group of lawyers who are neither representative nor accountable. This cannot be the democracy or the rule of law to which we are wedded. Maybe it is not unrealistic to doubt or despise the political processes and it may also be that the people cannot be fully trusted with self government. But it would be naïve to believe that guardianship is synonymous with democracy.
It is accepted that Chief Justice Marshall’s greatness lay in his recognition of the practical needs of government and the need for statecraft in constitutional adjudication. The court must also be conscious that democratic result can be achieved only by its disbelief in ultimate answers to social and economic issues and that legislative judgment on these matters is largely conditioned by time and circumstances and that there are hardly any scientifically correct and certain criteria of policy and legislation.
The philosophy of judicial review is rooted in the principle that the constitution is the fundamental law. The constitution has established three coordinate and independent wings or organs of government. The constitutional scheme, at least in theory, is so designed that each organ is a sentinel on the qui vive against the other two lest any of them become too powerful or autocratic. The doctrine of judicial review postulates that the judiciary is the interpreter of the constitution with the power to prescribe rules for the others and is the arbiter of the limits of authority of the different wings. Frankfurter, J. rightly remarked that judicial review is a deliberate check upon democracy through an organ of government not subject to popular control. Again, political theory and the theory of the constitution hypothesize that given the possibility of legislative oversight and constitutional amendment, there is nothing undemocratic in responsible, independent judges acting as constitutional mediators.
As Mauro Cappelletti observes, Judges have become the trustees of a new conception of ‘limited’ government—limited, that is, by constitutional and also by transnational mandates. At the same time, they have also become the trustees of an ‘enlarged’ government—enlarged, that is, to fulfill the new goals of the social state. [The Judicial Process in Comparative Perspective] The standards of fiduciary conduct set by Cardozo for even an ordinary trustee is that “he is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honour the most sensitive, is the standard of behaviour.” [Meinhard v. Salmon, 249 NY 458 (1928)] What then to say of a constitutional trust at once so lofty and so noble!
The rights and values envisaged by the Constitution are not merely material. Constitutionalism implies limited government. Its history has been the movement from a culture of authority to one of justification where power and its exercise is made answerable. The judiciary, particularly the Supreme Court, as a vital institution of democratic governance has helped to inculcate and foster a constitutional culture and infuse all State actions with constitutional ethos. All seemingly wide and unfettered powers of the State are tempered by constitutional limitations to be exercised in accord with public law principles and subject to judicial review and correction depending on the nature of the function. This may be said to be of the very essence of the protection of civil and political liberties. But that is not all. The Court has been equally solicitous of the socio-economic rights. In India the scheme for the realization of the socio economic agenda comprises both the justiciable Fundamental Rights and the non- justiciable Directive Principles. The judicial contribution to their synthesis and integration has been crucial to the realization of the goals set out in Part IV both as a means to effectuate the rights guaranteed under Part III and also as a source of law for a welfare State. The Supreme Court, particularly after the first two decades, harmoniously interpreted Parts III and IV. The judiciary has much to be proud of.
As trustees of limited government the judges have protected and upheld individual rights, enforced constitutional limitations, disciplined the exercise of power, held government and public authorities accountable. As trustees of an enlarged government they have endeavoured to synthezise and balance individual rights with the greater societal good, to translate human rights rhetoric to action. To the extent judges are able to ensure all this, they would have fulfilled the obligations of the trust that their position entails.
The great theme in the history of our Constitutional law is the concept of law as a check upon public power. That idea has been given practical reality in the decisions of the Supreme Court. Those decisions are, to paraphrase Justice Holmes, a virtual magic mirror in which we see reflected our whole constitutional development and all that it has meant to the nation.
Realizing the constitutional vision of justice is really good governance. The consummation of the Constitution is when justice reaches out to everyone, everywhere as contemplated and mandated by the Constitution. Our Nation-State has been striving to entrench the constitutional vision of justice and achieve the constitutional goals. Constitutionalism facilitates a democratic political system by creating an orderly framework within which decisions are made. A constitutional democracy can work only under institutional safeguards. A cultivated respect for law and enduring institutions are therefore important. An unfailing index to the maturity of a democracy is the degree of its respect for unwritten conventions. What is left unsaid in a constitution is as important as what is said; and the constitutional equilibrium can be preserved only by Obedience to the Unenforceable. The realization of all this depends upon the recognition that constitutional morality is no less essential than constitutional legality.
The role of institutions in making democracy meaningful and successful is vital. No institution is an abstraction. The working of all constitutional institutions is influenced and determined by those who man them. An institution is, however, much more than the sum total of all who compose it.
A constitutional democracy implies that deliberative forces prevail over the arbitrary. The right to question, to scrutinize and to dissent is of the very essence. The cardinal feature of our system of government is the requirement that the executive enjoys the confidence of and is accountable to the legislature and ultimately to the people. The political theory behind representative democracy is that the legislature must reflect the opinion of the electorate. Parliament/legislature is a pivotal institution in a democracy. Its twin primary objectives are law making and holding the executive accountable.
It is imperative that there is free and fair discussion and exchange of ideas in the House. Indeed the Constitution confers such freedom to enable members to discharge their duties and functions freely and effectively. It is equally important that the level of political discourse and parliamentary debates is maintained high and there is mutual respect and courtesy. The whole idea is that in a legislature you talk and deliberate, try to persuade and take decisions through discussion and persuasion. The volatile nature of raw public opinion should be refined through a process that gives elected representatives the opportunity to deliberate and exercise their judgments free from factional interests or majority intolerance. While we may have some exceptional good debates, there is certainly a sharp general fall. In this behalf the importance of wit and humour cannot be overlooked. Humour raises the level of debate and discussion, it also relieves the stress and tension. It is a great vehicle for getting a message across. It is rightly said that humour can make the wonderful moments of life truly glorious and tragic moments bearable. While the courts and the legislatures cannot and do not inquire into one another’s affairs, it is well settled that judicial inquiry is barred only in matters of procedural impropriety or irregularity as contrasted with substantive illegality in which case judicial review is permissible and becomes a duty.
The reality is that the Constitution contains a mélange of powers. No single institution is even remotely supreme. It is as it should be and will probably always be so. Some struggle and tension do occasionally arise. Reciprocal influence is a continuing process. In the field of constitutional law the delicate balance between the various institutions whose sound and lasting quality Dicey in The Law of the Constitution(10th edn, 1959, p.3) likened to the work of bees when constructing a honeycomb is maintained to a large degree by the mutual respect which each institution has for the other. In British Railways Board v. Pickin [1974] 1 All ER 609 (618), Lord Reid observed that for a century or more both Parliament and the Courts have been careful to act so as not to cause conflict between them. This is as much a prescription for the future as it was for the past. [cf: R (Jackson) v. A.G. [2005]4 All ER 1253 at 1293] This is the profound truth and is equally relevant everywhere!
There are dangers that a constitutional state and the people have always to be on their guard. It is necessary to build, nurture and cherish a constitutional culture or constitutionalism which is not merely regard for and adherence to form and letter but a commitment to substance which is respect for and adherence to the rule of law which is the tribute paid by power to reason, disciplining the exercise of all power and subjecting it to constitutional limitations. This indeed is constitutional morality. There has to be an unremitting endeavour in realizing this.
The Constitution is no doubt a legal document, but it is also a social testament and a political instrument. The relation between the institutions, particularly the legislature and the executive, is more political. One cannot also overlook the relationship between the legal and the political processes which are intermixed. Constitutional adjudication, therefore, at least to some extent, is political. The politics of constitutional adjudication are clearly different from parliamentary, governmental and electoral politics. It involves rational justification and legal foundation, but constitutional review can nevertheless not claim to be innocent of politics.
In this background some tension between the various wings of government is both inevitable and desirable. It shows that democracy is alive and working and constitutional institutions are vibrant and functional. It is some kind of a dialogue between the judiciary on the one hand and the legislature and the executive on the other.
In one sense constitutional adjudication is, and must be, a dynamic interaction – a ‘democratic dialogue’ among the wings of the government. “Courts remind legislature of the values that might otherwise be neglected and legislatures respond by expanding or refining the terms of the debate.” Public law must in principle respect conventional limitations on judicial power. They are crucial to the functioning of a democratic state. To remember that there can be no legal solubility to every problem and that the judicial process has its inherent limitations is wisdom and acknowledgment of a stark reality. The court is not a ‘one stop solution to resolve complicated issues of policy and society.’
Prof. Dieter Grimm, former Justice of the Federal Constitutional Court of Germany mentions that while amendments are an external corrective to the power of courts, there is also an internal corrective. “Even if it is true that, what is legally acceptable and what is not, can only be defined in the legal system, it is never defined once and for all and judges are not the only actors to take part in the ongoing discussion. It is therefore extremely important that constitutional courts are embedded in a lively discourse in which the division of functions between the political and juridical branches of government, the acceptability of legal methods and the soundness of interpretations are constantly evaluated and readjusted”.
We hear the same idea echoed and expatiated on in a recent judgment of the Supreme Court in Gujarat Ujra Vikas Nigam v. Amit Gupta (2021) 7 SCC 209 where Chandrachud, J. speaking for the Court observed profoundly: The core of constitutional dialogue is that the different wings-judiciary and legislature- engage in a conversation about constitutional meaning in which both actors should listen to learn from each other’s perspectives which can lead to modifying their own views accordingly. The court is, at its heart, an institution which responds to concrete cases brought before it. It is not within its province to engraft into law its views as to what constitutes good policy. That is a matter within the legislature’s remit. Equally, when presented with a novel question on which the legislature has not yet made up its mind, the court cannot sit with folded hands and simply pass the buck onto the legislature. In such an event the court can adopt an interpretation-a workable formula- that furthers the broad goals of the legislation concerned while leaving it to the legislature to formulate a comprehensive and well considered solution to the underlying problem. To aid the legislature in its exercise the court can put forth its best thinking as to the relevant considerations at play, the position of law obtaining in other relevant jurisdictions and the possible pitfalls that may have to be avoided. It is through the instrumentality of an inter-institutional dialogue that the doctrine of separation of powers can be operationalised in a nuanced fashion. It is in this way that the court can tread the middle path between abdication and usurpation.
One cannot also forget what Prof. Laurence Tribe perspicaciously observes, “Such passing finality as judicial pronouncements possess is an essential compromise between constitutional order and chaos. The Constitution is an intentionally incomplete, often deliberately indeterminate structure for the participatory evolution of political ideals and governmental practices. This process cannot be the special province of any single entity.”
But the relationship between the judiciary and the other wings is expected to be correct and nothing more. Bonhomie or cordiality, more often than not, may herald the demise of democracy and constitutionalism. The court is not accountable to the legislature or the nation in the way a legislator is. It is accountable to the constitution and its values. That is the personal and institutional independence of the judge.
If it is accepted that courts are constantly remaking the law, which indeed they do, then it is of the greatest social importance that the law should be made in conformity with the best available inputs from other disciplines. An appreciation of what Holmes called ‘the secret root from which the law draws all the juices of life’ by which he meant ‘considerations of what is expedient for the community concerned’ [cf: The Common Law p.32] furnishes a more viable point of departure for a jurisprudence of the age of the positive State. Can it not be said that the judiciary may legitimately serve as part of an ‘aristocracy of talent’, to use Carlyle’s phrase, in helping to build that jurisprudence?
As Cardozo said, “You may say that there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. I am not disposed to deny this, but in my view it is quite beside the point. The point is rather that this power of interpretation must be lodged somewhere, and the custom of the constitution has lodged it in the judges. If they are to fulfil their functions as judges, it could hardly be lodged elsewhere. Their conclusions must, indeed, be subject to constant testing and retesting, revision and adjustment; but if they act with conscience and intelligence, they ought to attain in their conclusions a fair average of truth and wisdom.” This captures the quintessence of judicial role and power in a democratic framework.
There may be no unanimity on the scope and limit of judicial power but there is no gain saying that it is essential as long as it does not breach its embankments. That judicial review is legitimate does not mean it is unconfined. The genius is to find the limits. In the art of creativity, in the delicate balancing between creativity and fidelity, in choosing where to draw the line which makes it possible to find just that compromise between the letter and the spirit and guide him to safety lies the wisdom and genius of the judge, a quality which is God’s gift as Learned Hand said but which can also be acquired by experience, dedication and application.
Prof. Friedmann perceptively remarks that in the modern democratic society the judge must steer between the Scylla of subservience to Government and the Charybdis of remoteness from constantly changing social pressures and economic needs. The genius of constitutionalism which supports the rule of law lies in the constitution – its resilience which provides ample opportunity for both continuity and change, in the method of interpretation and in the wisdom and ability with which the judges, in spite of a few bad mistakes ‘have steered between the horns of their dilemma’.
It is no doubt true that judicial review is recognized and even ordained by the constitution. Yet judicial review operates in a democratic set up and its counter majoritarian character is reconciled with democratic majoritarian principles on certain well known and recognized basic assumptions. We cannot but accept that judicial review is essential in a government with limited powers and as a bulwark for the protection of individual rights and liberties.
In this subject we necessarily hear undertones of the perplexities of reconciling apparent contradictions. One need not, perhaps, be too disconcerted by the various pulls and pressures tending to upset what one believes to be an ideal constitutional balance. “The basic dilemmas of art and law are, in the end, not dissimilar, and in their resolution – the resolution of passion and pattern, of frenzy and form, of convention and revolt, of order and spontaneity – lies the clue to creativity that will endure.” [Paul A. Freund: On Law and Justice, Cambridge, Mass (1968)]
Constitutions may be easily copied, temperaments are not. Therefore, constitutional values and aspirations will have to be internalized in the psyche of the nation. We need to develop and always have a decorous regard for and play by the rules of the constitutional game. What is necessary and important is character, both individual and national. It is the weight of public opinion that will have to prevent any perversion of the system and ensure its smooth working. This seems to be a distant hope and goal, but for its attainment there should be ceaseless striving. That depends on the citizenry as a whole. For, democracy is a beckoning goal, not a safe harbour, freedom is an unremitting endeavour, never a final achievement and no office in the land is more important than that of a citizen. Therefore it is that we need to constantly remind ourselves that the Constitution- our treasured inheritance which we have to cherish- is presently in our keeping and that we at once its servants and its masters renew and maintain our allegiance to the fundamental charter.
More than sixty years ago Lord MacDermott in his Hamlyn Lectures of 1957[Protection from Power under English Law, Stevens & Sons, London (1957)] spoke of law as a protection from power. In these decades that have gone by public law has grown by leaps and bounds, its tools have been innovated, sharpened and refined. The contours of judicial review have been drawn with sharper edges. It effectively serves as a shield against the onslaughts of power of different genres.
The march of science and technology and the interplay of economics and social sciences and law and the influence of all this on the existing political and legal institutions cannot be overlooked. All this throws up newer challenges and offers more creative possibilities for judicial review. This calls for a robust and balanced exercise of the power of judicial review in fulfilling the obligation of trustees of an enlarged government. The Constitution has to be judiciously and wisely worked in order to realize the constitutional vision of justice and to ensure that it remains workable in a broad sense. This requires applying unchanging constitutional principles to changing circumstances ‘to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs’.
“Whatever pleases the Emperor has the force of law is not an article of democratic faith”, observed Chandrachud, J perceptively in the PM’s Election case. Would Holmes's famous aphorisms pointing in the direction that judges should defer when the legislature reflected the pervasive and predominant values and interests of the community and that he had, for example, no "practical" criterion to go on except "what the crowd wanted" always hold good? Are there not situations where judicial review and activism become a duty? These are issues for which one can provide no straight and simple answers. They would certainly trigger a debate on the potency, validity and limits of judicial review. Whether judicial review should address these matters is a question that I have not discussed here, whether it will, and if so how, is a question for another day.
01:21:04 PM {"id":1682,"user_id":3,"title":"A speech on Court(s) in a Constitutional Democracy by V. Sudhish Pai on 3rd International Bengali Conference organized by Bangla Worldwide","slug":"speech-courts-constitutional-democracy-v-sudhish-pai-3rd-international-bengali-conference-organized-bangla-worldwide","excerpt":"","content":"<p style=\"text-align: justify;\">Democracy essentially means the rule of the majority. As Chandrachud, J observed in the PM’s Electio<em>n<\/em> case, “Forgetting mere words which Tennyson said: ‘Like Nature, half reveal and half conceal the soul within’, the substance of the matter (democracy) is the rule of the majority and the manner of ascertaining the will of the majority is through the process of elections.” Constitutional democracy is one where the majority ‘will’ and rule is controlled and directed by constitutional principles or constitutionalism. While the consent of the governed is a basic value in a democracy, constitutional democracy cannot exist in any real sense without the rule of law. While rule of law has many different facets and meanings, one of its most essential elements is that every executive action, if it is to operate against or to the prejudice of any person, must have legislative backing-legislative authority to support it. But in countries like ours with a written, justiciable constitution and a bill of rights, the legislature is also subordinate to constitutional rights, values and limitations. That is the concept of the absolute reign of law: the legislative power too is subject to constitutional limitations. Thus in India, we have not only the rule of law, but also the absolute reign of law.<\/p>\r\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9590-47-41-303-190-1714635244.jpg\" width=\"350\" height=\"250\" \/><\/p>\r\n<p style=\"text-align: justify;\">In his First Inaugural Address in 1801, Jefferson qualifying the majority principle, insightfully remarked thus, “All too will bear in mind this sacred principle that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable, that the majority possess their equal rights which equal law must protect and to violate it would be oppression.” We see the practical operation of this reflected in the limitation in Art 13(2) of our Constitution which forbids the passing of a law taking away or abridging fundamental rights<\/p>\r\n<p style=\"text-align: justify;\">There are thus two institutions which seem to be fundamentally contradictory. There is first the institutionalization of the principle that the will of the majority must prevail and that government must conform to its will as per the democratic principle. As against that is the institutionalization of the principle that powers of government are limited, that there are things which even a majority cannot do as they are beyond the ambit of the legislature and the executive.<\/p>\r\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9602-3-34-344-154-1714635383.jpg\" width=\"350\" height=\"250\" \/><\/p>\r\n<p style=\"text-align: justify;\">The democratic ideal involves two strands. First, the people entrust power to the government in accordance with the principles of majority rule. The second is that in a democracy there must be an effective and fair means of achieving practical justice through law between individuals and between the State and individuals. Where tension develops between the views of the majority and individual rights a decision must be made and sometimes a balance has to be struck. The best way of achieving this purpose is for a democracy to delegate to an impartial and independent judiciary this adjudicative function. Only such a judiciary acting in accordance with principles of institutional integrity and aided by a free and courageous legal profession, practising and academic, can carry out this task, notably in the field of fundamental rights and freedoms. Only such a judiciary has democratic legitimacy. The judiciary owes allegiance to nothing but the constitutional duty of reaching through reasoned debate the best attainable judgments in accordance with justice and law. This is its role in the democratic governance of countries. At the root of it is the struggle by fallible judges with imperfect insights for government under law and not under man. [cf: Lord Steyn, Democracy through Law]<\/p>\r\n<p style=\"text-align: justify;\">Cardozo so neatly and discerningly elucidated the essential judicial function and the judge’s role in a constitutional democracy: “The great ideals of liberty and equality are preserved, by enshrining them in constitutions, and consecrating to the task of their protection a body of defenders. By conscious or unconscious influence, the presence of the restraining power, aloof in the background, but none the less always in reserve, tends to stabilize and rationalize the legislative judgment, to infuse it with the glow of principle, to hold the standard aloft and visible for those who must run the race and keep the faith. …we find its chief worth in making vocal and audible the ideals that might be otherwise silenced, in giving them continuity of life and expression, in guiding and directing choice within the limits where choice ranges. This function should preserve to the courts the power that now belongs to them, if only the power is exercised with insight into social values, and with suppleness of adaptation to changing social needs.” [The Nature of the Judicial Process]<\/p>\r\n<p style=\"text-align: justify;\">Democracy is essentially a balance between constitutional rights and public interests. It is for the courts to maintain this delicate balance. What prevails in a constitutional democracy is constitutional supremacy- all organs being controlled and regulated by the Constitution and functioning within the confines of their powers with the judiciary constituted the arbiter. The guardianship of the judiciary in enforcing the constitution, expands when there is constitutional division of powers not only between the three branches – executive, legislature and judiciary, but the State itself is divided into two units, national and state, with a consequential distribution of powers between the two units i.e., the constitution is federal. The special functions of a federal judiciary are: maintaining the supremacy of the constitution; determining controversies between parties to the Federation; securing uniformity in the interpretation and application of the constitution as amongst the states. As the umpire or arbiter in the federal system, the judiciary’s function of acting as the guardian of the constitution is known as judicial review. The power of judicial review to maintain the supremacy of the constitution is vested generally in the highest federal court. As the final interpreter of the constitution, its interpretation is binding on all organs of the State. Constitutional supremacy is limited government under a fundamental law with the judiciary constituted as its monitor, defender and protector. As the Supreme Court has said it is for the court to protect the rights and liberties, to uphold constitutional values and enforce constitutional limitations by acting as a sentinel on the qui vive. This is the judge’s primary role: protecting the constitution and upholding the rule of law.<\/p>\r\n<p>‘Judicial review’ is an adjunct of ‘limited government’. If a constitution is to operate as a legal limitation there must be some agency to enforce it through the legal process. That is the judiciary. In India that power is specifically conferred by the Constitution- Arts 13, 32,136, 226, 227. We also have Articles 141(law declared by the Supreme Court is binding on all) and 144 (all authorities shall act in aid of the Supreme Court).<\/p>\r\n<p>It may be said that the concept of limited government and judicial review constitute the essence of our constitutional system and it involves three main elements: A written constitution setting up and limiting the various organs of government; the constitution functioning as a superior law or standard by which the conduct of all organs of government is to be judged; a sanction by means of which any violation of the superior law by any of the organs of government may be prevented or restrained and, if necessary, annulled. This sanction, in the modern constitutional world, is ‘judicial review’ which means that a court of competent jurisdiction has the power to invalidate the act of any governmental agency, including the legislature on the ground that it is repugnant to the Constitution. [cf: Durga Das Basu, Limited Government and Judicial Review (TLL)]<\/p>\r\n<p>What emerges is that in a limited government under a written constitution all organs of the State are creatures of the constitution and have to act and function under the constitution and in consonance therewith. What is, therefore, supreme is the constitution and what obtains is constitutional supremacy, the judiciary having the last word in the interpretation of the constitution and constituted as its monitor, defender and protector. While the judiciary enforces the legal limitations imposed by the constitution, is it not bound by any such limitations? The constitution operates as a limitation on all organs which includes the judiciary. For, otherwise the judiciary would stand outside and independent of the constitution instead of being a creature of the constitution. And what is the sanction to keep the judiciary also within the bounds of its powers? It is, in a large measure, the judges’ own sense of self restraint. Constitutional scholars now would be increasingly reluctant to use catch phrases like supremacy of Parliament or answer current issues by appeal to some doctrine of sovereignty.<\/p>\r\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9594-47-38-256-194-1714635606.jpg\" width=\"350\" height=\"250\" \/><\/p>\r\n<p style=\"text-align: justify;\">But all this is not self executing. The power of judicial review is exercised through the agency of courts. Law including constitutional law cannot and does not provide for every contingency and the vagaries and varieties of human conduct. Many times it is open ended. The majestic vagueness of the Constitution, remarked Learned Hand, leaves room for doubt and disagreement. It is therefore said by critics and scholars that this also leaves room for, and so invites, government by judges- especially those who are free not only of appellate review, but of elections as well and have an assured tenure.<\/p>\r\n<p style=\"text-align: justify;\">In this imperfect setting judges are expected to clear endless dockets and uphold the rule of law. Judges must be sometimes cautious and sometimes bold. They must respect both the traditions of the past and the convenience of the present. They must reconcile liberty and authority, individual freedom (human rights) and State\/national security, environment and development, socio-economic rights of particularly the weaker sections of society and development; the whole and its parts, the letter and the spirit. “The major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence; and the difficulty has been to discover the practical means of achieving this grand objective and to find the opportunity for applying these means in the ever shifting tangle of human affairs.”<\/p>\r\n<p style=\"text-align: justify;\">All this throws up matters of great moment and in a way summarises the contemporary issues and challenges for judicial review. These challenges and issues have always been there but they have acquired new dimensions and poignancy. Imbuing all acts of all authorities with constitutionalism and constitutional culture, entrenching the constitutional vision of justice -making it real and meaningful for the people, vitalizing democracy and achieving all this within the framework of separation of powers and democratic functioning is the real challenge for, and the goal of, judicial review in a constitutional democracy.<\/p>\r\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9598-0-13-350-172-1714635665.jpg\" width=\"350\" height=\"250\" \/><\/p>\r\n<p style=\"text-align: justify;\">Despite the seemingly anti majoritarian character of judicial review the court must exercise this power to protect individual rights not adequately represented in the political process; but the court should also decline to exercise judicial review in other areas to minimize the tension between judicial review and democracy and to conserve its resources for institutional prestige. Judges and lawyers are not free to legislate any moral theory.<\/p>\r\n<p style=\"text-align: justify;\">In theory and in practice it is not easy to reconcile amicably judicial review with democratic governance. “The task of accommodating judicial review with democratic governance is inherently problematic…. Within a system of free government the Court fulfills an important though limited role as an auxiliary precaution against both the abuse of governmental power by a tyrannical minority and the excesses of majoritarian democracy. Judicial review becomes controversial only when the Court thwarts popular will or goes too far and too fast with its construction of the Constitution. Judicial aggression in constitutional politics is lamentable and objectionable. Yet far from being antithetical judicial review is essential to the promise and performance of free government.”[David M. O’Brien, Judicial Review and Constitutional Politics: Theory and Practice] <\/p>\r\n<p style=\"text-align: justify;\">The power of judicial review extends over a broad range of public issues. The court touches many aspects of public life. But as has been said it would be intolerable for the court finally to govern all that it touches, for, that would turn us into a Platonic kingdom contrary to the morality of self government. A simplistic and inaccurate enunciation of judicial review is that it is the power to construe and apply the constitution in matters of the greatest moment against the wishes of a legislative majority which is in turn helpless to affect the judicial decisions. There are issues of the utmost importance which the court may pick, define and decide in fulfillment of its role as the constitutional authority of last resort.<\/p>\r\n<p style=\"text-align: justify;\">It is very often by judicial interpretation that you enliven and make purposeful the constitution or the law. The court’s allegiance to the constitution ensures its own subordination. But creativity and allegiance are not necessarily antagonistic; they may with true discernment augment each other. Done wisely and with necessary circumspection, judicial law making within limits is both laudable and legitimate. Judicial response to different fact situations varies and it is an accepted fact of constitutional interpretation that the content of justiciability changes according to how the judges’ value preferences respond to the multi dimensional problems of the day. An awareness of history is an integral part of those preferences. Thus the evaluation of diverse, sometimes elusive factors, inevitably brings into the judicial verdict the judge’s own values and preferences. The simple truth is that the jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind. But as Mathew, J pointed out they are not too elusive for judicial perception; great judges are those who are most capable of discerning which of the gradations make genuine difference.<\/p>\r\n<p style=\"text-align: justify;\">It is important to bear in mind that unconstitutionality and not unwisdom is the narrow area of judicial review. For the removal of unwise laws appeal lies to the ballot box and the process of democratic government. Any doubt regarding the validity of a law must be resolved in favour of its constitutionality. The limited task of the court is to interpret the constitution as it is, not to venture starry eyed proposal for reform. What the constitution should contain is not for the courts to decide that is a question of high policy and the courts are concerned with interpretation of laws, not with the wisdom of policy underlying them. A commitment to the legality of laws and their enforcement for public good is to be realized. The court must always be careful in maintaining the right balance between the different wings of government. Mistrust of government is violative of comity between instrumentalities. Courts must be tempered by the thought that while compromise on principle is unprincipled, applied Administrative Law in modern complexities of government must be realistic. There must be a sensible approximation, there must be elasticity of judgment in response to the practical necessities of government which cannot foresee today the developments of tomorrow in their nearly infinite variety.<\/p>\r\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9613-30-28-295-197-1714635746.jpg\" width=\"350\" height=\"250\" \/><\/p>\r\n<p style=\"text-align: justify;\">One cannot forget or overlook the criticism that judicial activism will sometimes result in democratic debilitation. When a society leaves all or its important decisions to the judiciary it is a weak society which misses the excitement of democracy and of sorting out things by the democratic process. The exact limits of the adjudicative methods cannot be fixed and rigid. But if they are totally forsaken the judge loses credibility as a judge. The courts’ activism nurtures great hopes and arouses great expectations which may remain unfulfilled and engender a critical sense of disenchantment and desperation. When a people despair of their institutions, force may get ahead masquerading as ideology.<\/p>\r\n<p style=\"text-align: justify;\">The power of judicial review is an integral part of the process of our constitutional government. The court has the duty of interpreting the constitution in many of its most important aspects, and especially in those which concern the relations of the individual and the State. The political idea and justification of the power is that there are some aspects and phases of national life which should be beyond the reach of any majority or the outcome of any election. They are permanent values which it is for the court to uphold and protect. Constitutional review by an independent judiciary indeed, in a way, fosters democracy. For, pluralism is the soul of democracy; judicial review as constitutionally envisaged facilitates the quest for an open society with widely dispersed powers. Particularly in a vast country with such great diversities of religion, language, race and culture and largely different regional problems, such an organization of society is the assured foundation for the realization of democratic yearnings.<\/p>\r\n<p style=\"text-align: justify;\">It is inevitable that the legislatures tend primarily to reflect immediate interests. But it is important and essential that long term interests and values be given due consideration. Until the legislatures do so, the judiciary seems to inherit the assignment by default; and if the assignment is judiciously performed in the manner indicated by great judges, ‘the court can be regarded,’ to quote Prof. Robert McCloskey, ‘not as an adversary<em>, <\/em>but as an auxiliary to democracy’. Or as Justice Mathew put it, paradoxical though it may appear, the judiciary is both an ally of majoritarianism and its critic and censor.<\/p>\r\n<p style=\"text-align: justify;\">Learned Hand defended entrusting the construction of the constitution insofar as it is ‘an instrument to distribute political power’ to an independent judiciary. Conflicts over authority are inevitable in a system of divided power. It is ‘a daring expedient’ to have them settled by “judges deliberately put beyond the reach of popular pressure. … independent judges are most likely to do the job well.”<\/p>\r\n<p style=\"text-align: justify;\">It has been observed by some scholars that the reciprocal relation between the court and the community in the formation of policy may be a paradox to those who believe that there is something undemocratic in the power of judicial review. But the work of the court can have, and when wisely exercised does have, the effect of not inhibiting but of releasing and encouraging the dominantly democratic forces. For, in a democracy life in all its aspects is an attempt to express and to fulfil a far reaching moral code.<\/p>\r\n<p style=\"text-align: justify;\">In one sense safeguards against the abuse of the power of judicial review can be found also in the transparency of the judicial process which allows the public to assess the merits of a judicial decision and in the judges’ own desire to maintain a strong judicial reputation. As the Supreme Court said recently, “A judge is judged every day by the lawyers, litigants and the public, as the courts are open and the judges speak by giving reasons in writing for their decisions.” [Anna Mathews v Supreme Court of India, WP (C) No.148 of 2023 decided on 10.2.2023]<\/p>\r\n<p style=\"text-align: justify;\">There is no doubt that “in the exercise of their powers of judicial review, courts should be as wise and statesmanlike as their capacities and temperaments permit- wise as judges, wise in their concern for the effectiveness of their interventions into public affairs, and wise too in adapting the constitution to changing conditions….” Justice Stone’s admonition-“the only check upon our own exercise of power is our own sense of self restraint” bears constant recall. But he made clear that self restraint is not an excuse for inaction; it is rooted in a respect for the dignity and high purpose of the other branches of government and a sympathetic understanding of the problems they must try to resolve.<\/p>\r\n<p style=\"text-align: justify;\">But really there is no contradiction between democracy and judicial review. It is arguable that the substantive law of judicial review represents the greatest contribution of the common law in the last century. As Lord Bingham famously remarked in the Belmarsh<em> c<\/em>ase the enforcement of law by an independent judiciary is now regarded as a cornerstone of a democratic society. The purpose of judicial review primarily is to give effect to Parliament’s will. The function of the court of judicial review is to ensure that all authorities act within the confines of their power. ‘The maintenance of the rule of law is in every way as important in a free society as the democratic franchise.’ The link between judicial review and rule of law is that judicial review is the exercise of a constitutional power which the rule of law requires.<\/p>\r\n<p style=\"text-align: justify;\">What is the accountability of judges in a democracy must be properly understood and appreciated. Judges are accountable not in the same sense in which politicians are. Democracy and majoritarianism are not synonymous. In the context of governance or politics, democracy is the process and government by the majority is the outcome. In the context of human rights or fundamental rights, democracy means the rights of individuals where the majority has little, if any, place. Judicial accountability in a rights–democracy context does not mean political accountability to effectuate the majority will or accountability to the majority. It really means the assurance to each individual that the process of determining the individual rights is transparent, impartial and objective. It is trite that there is no principle more basic to our system than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review.<\/p>\r\n<p style=\"text-align: justify;\">In order to be protected by the rule of law we must follow the law even when we disagree with it. A realization that all our liberties depend upon compliance with law is something that runs deeper in the whole system and is more enduring. “Constitutionalism works, our liberties are protected and our society is free because….people as a whole realize that liberty for the weak depends upon the rule of law and the rule of law depends upon voluntary compliance.” This is the all important but fragile faith which every generation needs to cherish, nurture and carry forward.<\/p>\r\n<p style=\"text-align: justify;\">This contest and reconciliation between conflicting principles and goals is not limited to law. “When in any field of human observation, two truths appear in conflict, it is wiser to assume that neither is exclusive, and that their contradiction though it may be hard to bear, is part of the mystery of things.” But as Justice Frankfurter points out judges cannot leave such contradictions as part of the mystery of things, they have to adjudicate and if the conflict cannot be resolved, they have to arrive at an accommodation of the contending claims. This is the great challenge for a judge and “the agony of his duty.”<\/p>\r\n<p style=\"text-align: justify;\">Constitutional choices have to be made, so also policy initiatives and choices and legislation consequential to or supportive thereof. Whose right is it to choose and experiment and may be err? Should judges exercise the ‘sovereign prerogative of choice’? That should belong to and be exercised by the executive and legislative branches of government. Only in case of illegality or unconstitutionality should the court intervene, ie, only in cases that leave no room for reasonable doubt. The constitution outlines principles rather than engraving details and offers a wide range for legislative discretion and choice. And whatever choice is rational and not forbidden is constitutional. Governmental power to experiment and meet the changing needs of society must be recognized. To stay experimentation may be fraught with adverse consequences. In the exercise of the high power of judicial review, judges must ever be on the guard not to elevate their prejudices and predilections into legal principles and constitutional doctrines.<\/p>\r\n<p style=\"text-align: justify;\">If judicial modesty and restraint are not accepted and if judicial activism or aggression is to be the rule in matters of policy and law making, some basic issues remain. Is government by judges legitimate? Democratic processes envisage a ‘wide margin of considerations which address themselves only to the practical judgment’ of a legislative body representing a gamut of needs and aspirations. The legislative process, it is trite, is a major ingredient of freedom under government. The legislative process does not seek the final truth, but an acceptable balance of community interests. To intrude upon such pragmatic adjustments by judicial fiat may frustrate our chief instrument of social peace and political stability. If the court is to be the ultimate policy making body, that would indeed be judicial imperialism without political accountability. The inputs that the judiciary can get would be inadequate and not reflecting the diversity of interests and “inadequate or misleading information invites unsound decisions.” Moreover, such a system will train and produce citizens to look not to themselves for the solution to their problems but to a small and most elite group of lawyers who are neither representative nor accountable. This cannot be the democracy or the rule of law to which we are wedded. Maybe it is not unrealistic to doubt or despise the political processes and it may also be that the people cannot be fully trusted with self government. But it would be naïve to believe that guardianship is synonymous with democracy.<\/p>\r\n<p style=\"text-align: justify;\">It is accepted that Chief Justice Marshall’s greatness lay in his recognition of the practical needs of government and the need for statecraft in constitutional adjudication. The court must also be conscious that democratic result can be achieved only by its disbelief in ultimate answers to social and economic issues and that legislative judgment on these matters is largely conditioned by time and circumstances and that there are hardly any scientifically correct and certain criteria of policy and legislation.<\/p>\r\n<p style=\"text-align: justify;\">The philosophy of judicial review is rooted in the principle that the constitution is the fundamental law. The constitution has established three coordinate and independent wings or organs of government. The constitutional scheme, at least in theory, is so designed that each organ is a sentinel on the qui vive against the other two lest any of them become too powerful or autocratic. The doctrine of judicial review postulates that the judiciary is the interpreter of the constitution with the power to prescribe rules for the others and is the arbiter of the limits of authority of the different wings. Frankfurter, J. rightly remarked that judicial review is a deliberate check upon democracy through an organ of government not subject to popular control. Again, political theory and the theory of the constitution hypothesize that given the possibility of legislative oversight and constitutional amendment, there is nothing undemocratic in responsible, independent judges acting as constitutional mediators.<\/p>\r\n<p style=\"text-align: justify;\">As Mauro Cappelletti observes, Judges have become the trustees of a new conception of ‘limited’ government—limited, that is, by constitutional and also by transnational mandates. At the same time, they have also become the trustees of an ‘enlarged’ government—enlarged, that is, to fulfill the new goals of the social state. [The Judicial Process in Comparative Perspective] The standards of fiduciary conduct set by Cardozo for even an ordinary trustee is that “he is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honour the most sensitive, is the standard of behaviour.” [Meinhard v. Salmon, 249 NY 458 (1928)] What then to say of a constitutional trust at once so lofty and so noble!<\/p>\r\n<p style=\"text-align: justify;\">The rights and values envisaged by the Constitution are not merely material. Constitutionalism implies limited government. Its history has been the movement from a culture of authority to one of justification where power and its exercise is made answerable. The judiciary, particularly the Supreme Court, as a vital institution of democratic governance has helped to inculcate and foster a constitutional culture and infuse all State actions with constitutional ethos. All seemingly wide and unfettered powers of the State are tempered by constitutional limitations to be exercised in accord with public law principles and subject to judicial review and correction depending on the nature of the function. This may be said to be of the very essence of the protection of civil and political liberties. But that is not all. The Court has been equally solicitous of the socio-economic rights. In India the scheme for the realization of the socio economic agenda comprises both the justiciable Fundamental Rights and the non- justiciable Directive Principles. The judicial contribution to their synthesis and integration has been crucial to the realization of the goals set out in Part IV both as a means to effectuate the rights guaranteed under Part III and also as a source of law for a welfare State. The Supreme Court, particularly after the first two decades, harmoniously interpreted Parts III and IV. The judiciary has much to be proud of.<\/p>\r\n<p style=\"text-align: justify;\">As trustees of limited government the judges have protected and upheld individual rights, enforced constitutional limitations, disciplined the exercise of power, held government and public authorities accountable. As trustees of an enlarged government they have endeavoured to synthezise and balance individual rights with the greater societal good, to translate human rights rhetoric to action. To the extent judges are able to ensure all this, they would have fulfilled the obligations of the trust that their position entails.<\/p>\r\n<p style=\"text-align: justify;\">The great theme in the history of our Constitutional law is the concept of law as a check upon public power. That idea has been given practical reality in the decisions of the Supreme Court. Those decisions are, to paraphrase Justice Holmes, a virtual magic mirror in which we see reflected our whole constitutional development and all that it has meant to the nation.<\/p>\r\n<p style=\"text-align: justify;\">Realizing the constitutional vision of justice is really good governance. The consummation of the Constitution is when justice reaches out to everyone, everywhere as contemplated and mandated by the Constitution. Our Nation-State has been striving to entrench the constitutional vision of justice and achieve the constitutional goals. Constitutionalism facilitates a democratic political system by creating an orderly framework within which decisions are made. A constitutional democracy can work only under institutional safeguards. A cultivated respect for law and enduring institutions are therefore important. An unfailing index to the maturity of a democracy is the degree of its respect for unwritten conventions. What is left unsaid in a constitution is as important as what is said; and the constitutional equilibrium can be preserved only by Obedience to the Unenforceable. The realization of all this depends upon the recognition that constitutional morality is no less essential than constitutional legality.<\/p>\r\n<p style=\"text-align: justify;\">The role of institutions in making democracy meaningful and successful is vital. No institution is an abstraction. The working of all constitutional institutions is influenced and determined by those who man them. An institution is, however, much more than the sum total of all who compose it.<span style=\"text-decoration: line-through;\"> <\/span><\/p>\r\n<p style=\"text-align: justify;\">A constitutional democracy implies that deliberative forces prevail over the arbitrary. The right to question, to scrutinize and to dissent is of the very essence. The cardinal feature of our system of government is the requirement that the executive enjoys the confidence of and is accountable to the legislature and ultimately to the people. The political theory behind representative democracy is that the legislature must reflect the opinion of the electorate. Parliament\/legislature is a pivotal institution in a democracy. Its twin primary objectives are law making and holding the executive accountable.<\/p>\r\n<p style=\"text-align: justify;\">It is imperative that there is free and fair discussion and exchange of ideas in the House. Indeed the Constitution confers such freedom to enable members to discharge their duties and functions freely and effectively. It is equally important that the level of political discourse and parliamentary debates is maintained high and there is mutual respect and courtesy. The whole idea is that in a legislature you talk and deliberate, try to persuade and take decisions through discussion and persuasion. The volatile nature of raw public opinion should be refined through a process that gives elected representatives the opportunity to deliberate and exercise their judgments free from factional interests or majority intolerance. While we may have some exceptional good debates, there is certainly a sharp general fall. In this behalf the importance of wit and humour cannot be overlooked. Humour raises the level of debate and discussion, it also relieves the stress and tension. It is a great vehicle for getting a message across. It is rightly said that humour can make the wonderful moments of life truly glorious and tragic moments bearable. While the courts and the legislatures cannot and do not inquire into one another’s affairs, it is well settled that judicial inquiry is barred only in matters of procedural impropriety or irregularity as contrasted with substantive illegality in which case judicial review is permissible and becomes a duty.<\/p>\r\n<p style=\"text-align: justify;\">The reality is that the Constitution contains a mélange of powers. No single institution is even remotely supreme. It is as it should be and will probably always be so. Some struggle and tension do occasionally arise. Reciprocal influence is a continuing process. In the field of constitutional law the delicate balance between the various institutions whose sound and lasting quality Dicey in The Law of the Constitution(10<sup>th<\/sup> edn, 1959, p.3) likened to the work of bees when constructing a honeycomb is maintained to a large degree by the mutual respect which each institution has for the other. In British Railways Board v. Pickin [1974] 1 All ER 609 (618), Lord Reid observed that for a century or more both Parliament and the Courts have been careful to act so as not to cause conflict between them. This is as much a prescription for the future as it was for the past. [cf: R (Jackson) v. A.G. [2005]4 All ER 1253 at 1293] This is the profound truth and is equally relevant everywhere!<\/p>\r\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9588-6-40-319-192-1714635835.jpg\" width=\"350\" height=\"250\" \/><\/p>\r\n<p style=\"text-align: justify;\">There are dangers that a constitutional state and the people have always to be on their guard. It is necessary to build, nurture and cherish a constitutional culture or constitutionalism which is not merely regard for and adherence to form and letter but a commitment to substance which is respect for and adherence to the rule of law which is the tribute paid by power to reason, disciplining the exercise of all power and subjecting it to constitutional limitations. This indeed is constitutional morality. There has to be an unremitting endeavour in realizing this.<\/p>\r\n<p style=\"text-align: justify;\">The Constitution is no doubt a legal document, but it is also a social testament and a political instrument. The relation between the institutions, particularly the legislature and the executive, is more political. One cannot also overlook the relationship between the legal and the political processes which are intermixed. Constitutional adjudication, therefore, at least to some extent, is political. The politics of constitutional adjudication are clearly different from parliamentary, governmental and electoral politics. It involves rational justification and legal foundation, but constitutional review can nevertheless not claim to be innocent of politics.<\/p>\r\n<p style=\"text-align: justify;\">In this background some tension between the various wings of government is both inevitable and desirable. It shows that democracy is alive and working and constitutional institutions are vibrant and functional. It is some kind of a dialogue between the judiciary on the one hand and the legislature and the executive on the other.<\/p>\r\n<p style=\"text-align: justify;\">In one sense constitutional adjudication is, and must be, a dynamic interaction – a ‘democratic dialogue’ among the wings of the government. “Courts remind legislature of the values that might otherwise be neglected and legislatures respond by expanding or refining the terms of the debate.” Public law must in principle respect conventional limitations on judicial power. They are crucial to the functioning of a democratic state. To remember that there can be no legal solubility to every problem and that the judicial process has its inherent limitations is wisdom and acknowledgment of a stark reality. The court is not a ‘one stop solution to resolve complicated issues of policy and society.’<\/p>\r\n<p style=\"text-align: justify;\">Prof. Dieter Grimm, former Justice of the Federal Constitutional Court of Germany mentions that while amendments are an external corrective to the power of courts, there is also an internal corrective. “Even if it is true that, what is legally acceptable and what is not, can only be defined in the legal system, it is never defined once and for all and judges are not the only actors to take part in the ongoing discussion. It is therefore extremely important that constitutional courts are embedded in a lively discourse in which the division of functions between the political and juridical branches of government, the acceptability of legal methods and the soundness of interpretations are constantly evaluated and readjusted”.<\/p>\r\n<p style=\"text-align: justify;\">We hear the same idea echoed and expatiated on in a recent judgment of the Supreme Court in Gujarat Ujra Vikas Nigam v. Amit Gupta (2021) 7 SCC 209 where Chandrachud, J. speaking for the Court observed profoundly: The core of constitutional dialogue is that the different wings-judiciary and legislature- engage in a conversation about constitutional meaning in which both actors should listen to learn from each other’s perspectives which can lead to modifying their own views accordingly. The court is, at its heart, an institution which responds to concrete cases brought before it. It is not within its province to engraft into law its views as to what constitutes good policy. That is a matter within the legislature’s remit. Equally, when presented with a novel question on which the legislature has not yet made up its mind, the court cannot sit with folded hands and simply pass the buck onto the legislature. In such an event the court can adopt an interpretation-a workable formula- that furthers the broad goals of the legislation concerned while leaving it to the legislature to formulate a comprehensive and well considered solution to the underlying problem. To aid the legislature in its exercise the court can put forth its best thinking as to the relevant considerations at play, the position of law obtaining in other relevant jurisdictions and the possible pitfalls that may have to be avoided. It is through the instrumentality of an inter-institutional dialogue that the doctrine of separation of powers can be operationalised in a nuanced fashion. It is in this way that the court can tread the middle path between abdication and usurpation.<\/p>\r\n<p style=\"text-align: justify;\">One cannot also forget what Prof. Laurence Tribe perspicaciously observes, “Such passing finality as judicial pronouncements possess is an essential compromise between constitutional order and chaos. The Constitution is an intentionally incomplete, often deliberately indeterminate structure for the participatory evolution of political ideals and governmental practices. This process cannot be the special province of any single entity.”<\/p>\r\n<p style=\"text-align: justify;\">But the relationship between the judiciary and the other wings is expected to be correct and nothing more. Bonhomie or cordiality, more often than not, may herald the demise of democracy and constitutionalism. The court is not accountable to the legislature or the nation in the way a legislator is. It is accountable to the constitution and its values. That is the personal and institutional independence of the judge.<\/p>\r\n<p style=\"text-align: justify;\">If it is accepted that courts are constantly remaking the law, which indeed they do, then it is of the greatest social importance that the law should be made in conformity with the best available inputs from other disciplines. An appreciation of what Holmes called ‘the secret root from which the law draws all the juices of life’ by which he meant ‘considerations of what is expedient for the community concerned’ [cf: The Common Law p.32] furnishes a more viable point of departure for a jurisprudence of the age of the positive State. Can it not be said that the judiciary may legitimately serve as part of an ‘aristocracy of talent’, to use Carlyle’s phrase, in helping to build that jurisprudence?<\/p>\r\n<p style=\"text-align: justify;\">As Cardozo said, “You may say that there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. I am not disposed to deny this, but in my view it is quite beside the point. The point is rather that this power of interpretation must be lodged somewhere, and the custom of the constitution has lodged it in the judges. If they are to fulfil their functions as judges, it could hardly be lodged elsewhere. Their conclusions must, indeed, be subject to constant testing and retesting, revision and adjustment; but if they act with conscience and intelligence, they ought to attain in their conclusions a fair average of truth and wisdom.” This captures the quintessence of judicial role and power in a democratic framework.<\/p>\r\n<p style=\"text-align: justify;\">There may be no unanimity on the scope and limit of judicial power but there is no gain saying that it is essential as long as it does not breach its embankments. That judicial review is legitimate does not mean it is unconfined. The genius is to find the limits. In the art of creativity, in the delicate balancing between creativity and fidelity, in choosing where to draw the line which makes it possible to find just that compromise between the letter and the spirit and guide him to safety lies the wisdom and genius of the judge, a quality which is God’s gift as Learned Hand said but which can also be acquired by experience, dedication and application.<\/p>\r\n<p style=\"text-align: justify;\">Prof. Friedmann perceptively remarks that in the modern democratic society the judge must steer between the Scylla of subservience to Government and the Charybdis of remoteness from constantly changing social pressures and economic needs. The genius of constitutionalism which supports the rule of law lies in the constitution – its resilience which provides ample opportunity for both continuity and change, in the method of interpretation and in the wisdom and ability with which the judges, in spite of a few bad mistakes ‘have steered between the horns of their dilemma’.<\/p>\r\n<p style=\"text-align: justify;\">It is no doubt true that judicial review is recognized and even ordained by the constitution. Yet judicial review operates in a democratic set up and its counter majoritarian character is reconciled with democratic majoritarian principles on certain well known and recognized basic assumptions. We cannot but accept that judicial review is essential in a government with limited powers and as a bulwark for the protection of individual rights and liberties.<\/p>\r\n<p style=\"text-align: justify;\">In this subject we necessarily hear undertones of the perplexities of reconciling apparent contradictions. One need not, perhaps, be too disconcerted by the various pulls and pressures tending to upset what one believes to be an ideal constitutional balance. “The basic dilemmas of art and law are, in the end, not dissimilar, and in their resolution – the resolution of passion and pattern, of frenzy and form, of convention and revolt, of order and spontaneity – lies the clue to creativity that will endure.” [Paul A. Freund: On Law and Justice, Cambridge, Mass (1968)]<\/p>\r\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9577-12-0-280-233-1714635896.jpg\" width=\"350\" height=\"250\" \/><\/p>\r\n<p style=\"text-align: justify;\">Constitutions may be easily copied, temperaments are not. Therefore, constitutional values and aspirations will have to be internalized in the psyche of the nation. We need to develop and always have a decorous regard for and play by the rules of the constitutional game. What is necessary and important is character, both individual and national. It is the weight of public opinion that will have to prevent any perversion of the system and ensure its smooth working. This seems to be a distant hope and goal, but for its attainment there should be ceaseless striving. That depends on the citizenry as a whole. For, democracy is a beckoning goal, not a safe harbour, freedom is an unremitting endeavour, never a final achievement and no office in the land is more important than that of a citizen. Therefore it is that we need to constantly remind ourselves that the Constitution- our treasured inheritance which we have to cherish- is presently in our keeping and that we at once its servants and its masters renew and maintain our allegiance to the fundamental charter. <\/p>\r\n<p style=\"text-align: justify;\">More than sixty years ago Lord MacDermott in his Hamlyn Lectures of 1957[Protection from Power under English Law, Stevens & Sons, London (1957)] spoke of law as a protection from power. In these decades that have gone by public law has grown by leaps and bounds, its tools have been innovated, sharpened and refined. The contours of judicial review have been drawn with sharper edges. It effectively serves as a shield against the onslaughts of power of different genres.<\/p>\r\n<p style=\"text-align: justify;\">The march of science and technology and the interplay of economics and social sciences and law and the influence of all this on the existing political and legal institutions cannot be overlooked. All this throws up newer challenges and offers more creative possibilities for judicial review. This calls for a robust and balanced exercise of the power of judicial review in fulfilling the obligation of trustees of an enlarged government. The Constitution has to be judiciously and wisely worked in order to realize the constitutional vision of justice and to ensure that it remains workable in a broad sense. This requires applying unchanging constitutional principles to changing circumstances ‘to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs’.<\/p>\r\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9596-0-0-0-0-1714635963.jpg\" width=\"350\" height=\"250\" \/><\/p>\r\n<p style=\"text-align: justify;\">“Whatever pleases the Emperor has the force of law is not an article of democratic faith”, observed Chandrachud, J perceptively in the PM’s Election case. Would Holmes's famous aphorisms pointing in the direction that judges should defer when the legislature reflected the pervasive and predominant values and interests of the community and that he had, for example, no \"practical\" criterion to go on except \"what the crowd wanted\" always hold good? Are there not situations where judicial review and activism become a duty? These are issues for which one can provide no straight and simple answers. They would certainly trigger a debate on the potency, validity and limits of judicial review. Whether judicial review should address these matters is a question that I have not discussed here, whether it will<em>, <\/em>and if so how<em>,<\/em> is a question for another day.<\/p>\r\n<p> <\/p>\r\n<p> <\/p>\r\n<p> <\/p>\r\n<p> <\/p>\r\n<p> <\/p>\r\n<p> <\/p>\r\n<p> <\/p>","content_html":"<p style=\"text-align: justify;\">Democracy essentially means the rule of the majority. As Chandrachud, J observed in the PM\u2019s Electio<em>n<\/em> case, \u201cForgetting mere words which Tennyson said: \u2018Like Nature, half reveal and half conceal the soul within\u2019, the substance of the matter (democracy) is the rule of the majority and the manner of ascertaining the will of the majority is through the process of elections.\u201d Constitutional democracy is one where the majority \u2018will\u2019 and rule is controlled and directed by constitutional principles or constitutionalism. While the consent of the governed is a basic value in a democracy, constitutional democracy cannot exist in any real sense without the rule of law. While rule of law has many different facets and meanings, one of its most essential elements is that every executive action, if it is to operate against or to the prejudice of any person, must have legislative backing-legislative authority to support it. But in countries like ours with a written, justiciable constitution and a bill of rights, the legislature is also subordinate to constitutional rights, values and limitations. That is the concept of the absolute reign of law: the legislative power too is subject to constitutional limitations. Thus in India, we have not only the rule of law, but also the absolute reign of law.<\/p>\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9590-47-41-303-190-1714635244.jpg\" width=\"350\" height=\"250\"><\/p>\n<p style=\"text-align: justify;\">In his First Inaugural Address in 1801, Jefferson qualifying the majority principle, insightfully remarked thus, \u201cAll too will bear in mind this sacred principle that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable, that the majority possess their equal rights which equal law must protect and to violate it would be oppression.\u201d We see the practical operation of this reflected in the limitation in Art 13(2) of our Constitution which forbids the passing of a law taking away or abridging fundamental rights<\/p>\n<p style=\"text-align: justify;\">There are thus two institutions which seem to be fundamentally contradictory. There is first the institutionalization of the principle that the will of the majority must prevail and that government must conform to its will as per the democratic principle. As against that is the institutionalization of the principle that powers of government are limited, that there are things which even a majority cannot do as they are beyond the ambit of the legislature and the executive.<\/p>\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9602-3-34-344-154-1714635383.jpg\" width=\"350\" height=\"250\"><\/p>\n<p style=\"text-align: justify;\">The democratic ideal involves two strands. First, the people entrust power to the government in accordance with the principles of majority rule. The second is that in a democracy there must be an effective and fair means of achieving practical justice through law between individuals and between the State and individuals. Where tension develops between the views of the majority and individual rights a decision must be made and sometimes a balance has to be struck. The best way of achieving this purpose is for a democracy to delegate to an impartial and independent judiciary this adjudicative function. Only such a judiciary acting in accordance with principles of institutional integrity and aided by a free and courageous legal profession, practising and academic, can carry out this task, notably in the field of fundamental rights and freedoms. Only such a judiciary has democratic legitimacy. The judiciary owes allegiance to nothing but the constitutional duty of reaching through reasoned debate the best attainable judgments in accordance with justice and law. This is its role in the democratic governance of countries. At the root of it is the struggle by fallible judges with imperfect insights for government under law and not under man. [cf: Lord Steyn, Democracy through Law]<\/p>\n<p style=\"text-align: justify;\">Cardozo so neatly and discerningly elucidated the essential judicial function and the judge\u2019s role in a constitutional democracy: \u201cThe great ideals of liberty and equality are preserved, by enshrining them in constitutions, and consecrating to the task of their protection a body of defenders. By conscious or unconscious influence, the presence of the restraining power, aloof in the background, but none the less always in reserve, tends to stabilize and rationalize the legislative judgment, to infuse it with the glow of principle, to hold the standard aloft and visible for those who must run the race and keep the faith. \u2026we find its chief worth in making vocal and audible the ideals that might be otherwise silenced, in giving them continuity of life and expression, in guiding and directing choice within the limits where choice ranges. This function should preserve to the courts the power that now belongs to them, if only the power is exercised with insight into social values, and with suppleness of adaptation to changing social needs.\u201d [The Nature of the Judicial Process]<\/p>\n<p style=\"text-align: justify;\">Democracy is essentially a balance between constitutional rights and public interests. It is for the courts to maintain this delicate balance. What prevails in a constitutional democracy is constitutional supremacy- all organs being controlled and regulated by the Constitution and functioning within the confines of their powers with the judiciary constituted the arbiter. The guardianship of the judiciary in enforcing the constitution, expands when there is constitutional division of powers not only between the three branches \u2013 executive, legislature and judiciary, but the State itself is divided into two units, national and state, with a consequential distribution of powers between the two units i.e., the constitution is federal. The special functions of a federal judiciary are: maintaining the supremacy of the constitution; determining controversies between parties to the Federation; securing uniformity in the interpretation and application of the constitution as amongst the states. As the umpire or arbiter in the federal system, the judiciary\u2019s function of acting as the guardian of the constitution is known as judicial review. The power of judicial review to maintain the supremacy of the constitution is vested generally in the highest federal court. As the final interpreter of the constitution, its interpretation is binding on all organs of the State. Constitutional supremacy is limited government under a fundamental law with the judiciary constituted as its monitor, defender and protector. As the Supreme Court has said it is for the court to protect the rights and liberties, to uphold constitutional values and enforce constitutional limitations by acting as a sentinel on the qui vive. This is the judge\u2019s primary role: protecting the constitution and upholding the rule of law.<\/p>\n<p>\u2018Judicial review\u2019 is an adjunct of \u2018limited government\u2019. If a constitution is to operate as a legal limitation there must be some agency to enforce it through the legal process. That is the judiciary. In India that power is specifically conferred by the Constitution- Arts 13, 32,136, 226, 227. We also have Articles 141(law declared by the Supreme Court is binding on all) and 144 (all authorities shall act in aid of the Supreme Court).<\/p>\n<p>It may be said that the concept of limited government and judicial review constitute the essence of our constitutional system and it involves three main elements: A written constitution setting up and limiting the various organs of government; the constitution functioning as a superior law or standard by which the conduct of all organs of government is to be judged; a sanction by means of which any violation of the superior law by any of the organs of government may be prevented or restrained and, if necessary, annulled. This sanction, in the modern constitutional world, is \u2018judicial review\u2019 which means that a court of competent jurisdiction has the power to invalidate the act of any governmental agency, including the legislature on the ground that it is repugnant to the Constitution. [cf: Durga Das Basu, Limited Government and Judicial Review (TLL)]<\/p>\n<p>What emerges is that in a limited government under a written constitution all organs of the State are creatures of the constitution and have to act and function under the constitution and in consonance therewith. What is, therefore, supreme is the constitution and what obtains is constitutional supremacy, the judiciary having the last word in the interpretation of the constitution and constituted as its monitor, defender and protector. While the judiciary enforces the legal limitations imposed by the constitution, is it not bound by any such limitations? The constitution operates as a limitation on all organs which includes the judiciary. For, otherwise the judiciary would stand outside and independent of the constitution instead of being a creature of the constitution. And what is the sanction to keep the judiciary also within the bounds of its powers? It is, in a large measure, the judges\u2019 own sense of self restraint. Constitutional scholars now would be increasingly reluctant to use catch phrases like supremacy of Parliament or answer current issues by appeal to some doctrine of sovereignty.<\/p>\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9594-47-38-256-194-1714635606.jpg\" width=\"350\" height=\"250\"><\/p>\n<p style=\"text-align: justify;\">But all this is not self executing. The power of judicial review is exercised through the agency of courts. Law including constitutional law cannot and does not provide for every contingency and the vagaries and varieties of human conduct. Many times it is open ended. The majestic vagueness of the Constitution, remarked Learned Hand, leaves room for doubt and disagreement. It is therefore said by critics and scholars that this also leaves room for, and so invites, government by judges- especially those who are free not only of appellate review, but of elections as well and have an assured tenure.<\/p>\n<p style=\"text-align: justify;\">In this imperfect setting judges are expected to clear endless dockets and uphold the rule of law. Judges must be sometimes cautious and sometimes bold. They must respect both the traditions of the past and the convenience of the present. They must reconcile liberty and authority, individual freedom (human rights) and State\/national security, environment and development, socio-economic rights of particularly the weaker sections of society and development; the whole and its parts, the letter and the spirit. \u201cThe major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence; and the difficulty has been to discover the practical means of achieving this grand objective and to find the opportunity for applying these means in the ever shifting tangle of human affairs.\u201d<\/p>\n<p style=\"text-align: justify;\">All this throws up matters of great moment and in a way summarises the contemporary issues and challenges for judicial review. These challenges and issues have always been there but they have acquired new dimensions and poignancy. Imbuing all acts of all authorities with constitutionalism and constitutional culture, entrenching the constitutional vision of justice -making it real and meaningful for the people, vitalizing democracy and achieving all this within the framework of separation of powers and democratic functioning is the real challenge for, and the goal of, judicial review in a constitutional democracy.<\/p>\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9598-0-13-350-172-1714635665.jpg\" width=\"350\" height=\"250\"><\/p>\n<p style=\"text-align: justify;\">Despite the seemingly anti majoritarian character of judicial review the court must exercise this power to protect individual rights not adequately represented in the political process; but the court should also decline to exercise judicial review in other areas to minimize the tension between judicial review and democracy and to conserve its resources for institutional prestige. Judges and lawyers are not free to legislate any moral theory.<\/p>\n<p style=\"text-align: justify;\">In theory and in practice it is not easy to reconcile amicably judicial review with democratic governance. \u201cThe task of accommodating judicial review with democratic governance is inherently problematic\u2026. Within a system of free government the Court fulfills an important though limited role as an auxiliary precaution against both the abuse of governmental power by a tyrannical minority and the excesses of majoritarian\u00a0democracy. Judicial review becomes controversial only when the Court thwarts popular will or goes too far and too fast with its construction of the Constitution. Judicial aggression in constitutional politics is lamentable and objectionable. Yet far from being antithetical judicial review is essential to the promise and performance of free government.\u201d[David M. O\u2019Brien, Judicial Review and Constitutional Politics: Theory and Practice]\u00a0<\/p>\n<p style=\"text-align: justify;\">The power of judicial review extends over a broad range of public issues. The court touches many aspects of public life. But as has been said it would be intolerable for the court finally to govern all that it touches, for, that would turn us into a Platonic kingdom contrary to the morality of self government. A simplistic and inaccurate enunciation of judicial review is that it is the power to construe and apply the constitution in matters of the greatest moment against the wishes of a legislative majority which is in turn helpless to affect the judicial decisions. There are issues of the utmost importance which the court may pick, define and decide in fulfillment of its role as the constitutional authority of last resort.<\/p>\n<p style=\"text-align: justify;\">It is very often by judicial interpretation that you enliven and make purposeful the constitution or the law. The court\u2019s allegiance to the constitution ensures its own subordination. But creativity and allegiance are not necessarily antagonistic; they may with true discernment augment each other. Done wisely and with necessary circumspection, judicial law making within limits is both laudable and legitimate. Judicial response to different fact situations varies and it is an accepted fact of constitutional interpretation that the content of justiciability changes according to how the judges\u2019 value preferences respond to the multi dimensional problems of the day. An awareness of history is an integral part of those preferences. Thus the evaluation of diverse, sometimes elusive factors, inevitably brings into the judicial verdict the judge\u2019s own values and preferences. The simple truth is that the jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind. But as Mathew, J pointed out they are not too elusive for judicial perception; great judges are those who are most capable of discerning which of the gradations make genuine difference.<\/p>\n<p style=\"text-align: justify;\">It is important to bear in mind that unconstitutionality and not unwisdom is the narrow area of judicial review. For the removal of unwise laws appeal lies to the ballot box and the process of democratic government. Any doubt regarding the validity of a law must be resolved in favour of its constitutionality. The limited task of the court is to interpret the constitution as it is, not to venture starry eyed proposal for reform. What the constitution should contain is not for the courts to decide that is a question of high policy and the courts are concerned with interpretation of laws, not with the wisdom of policy underlying them. A commitment to the legality of laws and their enforcement for public good is to be realized. The court must always be careful in maintaining the right balance between the different wings of government. Mistrust of government is violative of comity between instrumentalities. Courts must be tempered by the thought that while compromise on principle is unprincipled, applied Administrative Law in modern complexities of government must be realistic. There must be a sensible approximation, there must be elasticity of judgment in response to the practical necessities of government which cannot foresee today the developments of tomorrow in their nearly infinite variety.<\/p>\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9613-30-28-295-197-1714635746.jpg\" width=\"350\" height=\"250\"><\/p>\n<p style=\"text-align: justify;\">One cannot forget or overlook the criticism that judicial activism will sometimes result in democratic debilitation. When a society leaves all or its important decisions to the judiciary it is a weak society which misses the excitement of democracy and of sorting out things by the democratic process. The exact limits of the adjudicative methods cannot be fixed and rigid. But if they are totally forsaken the judge loses credibility as a judge. The courts\u2019 activism nurtures great hopes and arouses great expectations which may remain unfulfilled and engender a critical sense of disenchantment and desperation. When a people despair of their institutions, force may get ahead masquerading as ideology.<\/p>\n<p style=\"text-align: justify;\">The power of judicial review is an integral part of the process of our constitutional government. The court has the duty of interpreting the constitution in many of its most important aspects, and especially in those which concern the relations of the individual and the State. The political idea and justification of the power is that there are some aspects and phases of national life which should be beyond the reach of any majority or the outcome of any election. They are permanent values which it is for the court to uphold and protect. Constitutional review by an independent judiciary indeed, in a way, fosters democracy. For, pluralism is the soul of democracy; judicial review as constitutionally envisaged facilitates the quest for an open society with widely dispersed powers. Particularly in a vast country with such great diversities of religion, language, race and culture and largely different regional problems, such an organization of society is the assured foundation for the realization of democratic yearnings.<\/p>\n<p style=\"text-align: justify;\">It is inevitable that the legislatures tend primarily to reflect immediate interests. But it is important and essential that long term interests and values be given due consideration. Until the legislatures do so, the judiciary seems to inherit the assignment by default; and if the assignment is judiciously performed in the manner indicated by great judges, \u2018the court can be regarded,\u2019 to quote Prof. Robert McCloskey, \u2018not as an adversary<em>, <\/em>but as an auxiliary to democracy\u2019. Or as Justice Mathew put it, paradoxical though it may appear, the judiciary is both an ally of majoritarianism and its critic and censor.<\/p>\n<p style=\"text-align: justify;\">Learned Hand defended entrusting the construction of the constitution insofar as it is \u2018an instrument to distribute political power\u2019 to an independent judiciary. Conflicts over authority are inevitable in a system of divided power. It is \u2018a daring expedient\u2019 to have them settled by \u201cjudges deliberately put beyond the reach of popular pressure. \u2026 independent judges are most likely to do the job well.\u201d<\/p>\n<p style=\"text-align: justify;\">It has been observed by some scholars that the reciprocal relation between the court and the community in the formation of policy may be a paradox to those who believe that there is something undemocratic in the power of judicial review. But the work of the court can have, and when wisely exercised does have, the effect of not inhibiting but of releasing and encouraging the dominantly democratic forces. For, in a democracy life in all its aspects is an attempt to express and to fulfil a far reaching moral code.<\/p>\n<p style=\"text-align: justify;\">In one sense safeguards against the abuse of the power of judicial review can be found also in the transparency of the judicial process which allows the public to assess the merits of a judicial decision and in the judges\u2019 own desire to maintain a strong judicial reputation. As the Supreme Court said recently, \u201cA judge is judged every day by the lawyers, litigants and the public, as the courts are open and the judges speak by giving reasons in writing for their decisions.\u201d [Anna Mathews v Supreme Court of India, WP (C) No.148 of 2023 decided on 10.2.2023]<\/p>\n<p style=\"text-align: justify;\">There is no doubt that \u201cin the exercise of their powers of judicial review, courts should be as wise and statesmanlike as their capacities and temperaments permit- wise as judges, wise in their concern for\u00a0 the effectiveness of their interventions into public affairs, and wise too in adapting the constitution to changing conditions\u2026.\u201d Justice Stone\u2019s admonition-\u201cthe only check upon our own exercise of power is our own sense of self restraint\u201d bears constant recall. But he made clear that self restraint is not an excuse for inaction; it is rooted in a respect for the dignity and high purpose of the other branches of government and a sympathetic understanding of the problems they must try to resolve.<\/p>\n<p style=\"text-align: justify;\">But really there is no contradiction between democracy and judicial review. It is arguable that the substantive law of judicial review represents the greatest contribution of the common law in the last century. As Lord Bingham famously remarked in the Belmarsh<em> c<\/em>ase the enforcement of law by an independent judiciary is now regarded as a cornerstone of a democratic society. The purpose of judicial review primarily is to give effect to Parliament\u2019s will. The function of the court of judicial review is to ensure that all authorities act within the confines of their power. \u2018The maintenance of the rule of law is in every way as important in a free society as the democratic franchise.\u2019 The link between judicial review and rule of law is that judicial review is the exercise of a constitutional power which the rule of law requires.<\/p>\n<p style=\"text-align: justify;\">What is the accountability of judges in a democracy must be properly understood and appreciated. Judges are accountable not in the same sense in which politicians are. Democracy and majoritarianism are not synonymous. In the context of governance or politics, democracy is the process and government by the majority is the outcome. In the context of human rights or fundamental rights, democracy means the rights of individuals where the majority has little, if any, place. Judicial accountability in a rights\u2013democracy context does not mean political accountability to effectuate the majority will or accountability to the majority. It really means the assurance to each individual that the process of determining the individual rights is transparent, impartial and objective. It is trite that there is no principle more basic to our system than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review.<\/p>\n<p style=\"text-align: justify;\">In order to be protected by the rule of law we must follow the law even when we disagree with it. A realization that all our liberties depend upon compliance with law is something that runs deeper in the whole system and is more enduring. \u201cConstitutionalism works, our liberties are protected and our society is free because\u2026.people as a whole realize that liberty for the weak depends upon the rule of law and the rule of law depends upon voluntary compliance.\u201d This is the all important but fragile faith which every generation needs to cherish, nurture and carry forward.<\/p>\n<p style=\"text-align: justify;\">This contest and reconciliation between conflicting principles and goals is not limited to law. \u201cWhen in any field of human observation, two truths appear in conflict, it is wiser to assume that neither is exclusive, and that their contradiction though it may be hard to bear, is part of the mystery of things.\u201d But as Justice Frankfurter points out judges cannot leave such contradictions as part of the mystery of things, they have to adjudicate and if the conflict cannot be resolved, they have to arrive at an accommodation of the contending claims. This is the great challenge for a judge and \u201cthe agony of his duty.\u201d<\/p>\n<p style=\"text-align: justify;\">Constitutional choices have to be made, so also policy initiatives and choices and legislation consequential to or supportive thereof. Whose right is it to choose and experiment and may be err? Should judges exercise the \u2018sovereign prerogative of choice\u2019? That should belong to and be exercised by the executive and legislative branches of government. Only in case of illegality or unconstitutionality should the court intervene, ie, only in cases that leave no room for reasonable doubt. The constitution outlines principles rather than engraving details and offers a wide range for legislative discretion and choice. And whatever choice is rational and not forbidden is constitutional. Governmental power to experiment and meet the changing needs of society must be recognized. To stay experimentation may be fraught with adverse consequences. In the exercise of the high power of judicial review, judges must ever be on the guard not to elevate their prejudices and predilections into legal principles and constitutional doctrines.<\/p>\n<p style=\"text-align: justify;\">If judicial modesty and restraint are not accepted and if judicial activism or aggression is to be the rule in matters of policy and law making, some basic issues remain. Is government by judges legitimate? Democratic processes envisage a \u2018wide margin of considerations which address themselves only to the practical judgment\u2019 of a legislative body representing a gamut of needs and aspirations. The legislative process, it is trite, is a major ingredient of freedom under government. The legislative process does not seek the final truth, but an acceptable balance of community interests. To intrude upon such pragmatic adjustments by judicial fiat may frustrate our chief instrument of social peace and political stability. If the court is to be the ultimate policy making body, that would indeed be judicial imperialism without political accountability. The inputs that the judiciary can get would be inadequate and not reflecting the diversity of interests and \u201cinadequate or misleading information invites unsound decisions.\u201d Moreover, such a system will train and produce citizens to look not to themselves for the solution to their problems but to a small and most elite group of lawyers who are neither representative nor accountable. This cannot be the democracy or the rule of law to which we are wedded. Maybe it is not unrealistic to doubt or despise the political processes and it may also be that the people cannot be fully trusted with self government. But it would be na\u00efve to believe that guardianship is synonymous with democracy.<\/p>\n<p style=\"text-align: justify;\">It is accepted that Chief Justice Marshall\u2019s greatness lay in his recognition of the practical needs of government and the need for statecraft in constitutional adjudication. The court must also be conscious that democratic result can be achieved only by its disbelief in ultimate answers to social and economic issues and that legislative judgment on these matters is largely conditioned by time and circumstances and that there are hardly any scientifically correct and certain criteria of policy and legislation.<\/p>\n<p style=\"text-align: justify;\">The philosophy of judicial review is rooted in the principle that the constitution is the fundamental law. The constitution has established three coordinate and independent wings or organs of government. The constitutional scheme, at least in theory, is so designed that each organ is a sentinel on the qui vive against the other two lest any of them become too powerful or autocratic. The doctrine of judicial review postulates that the judiciary is the interpreter of the constitution with the power to prescribe rules for the others and is the arbiter of the limits of authority of the different wings. Frankfurter, J. rightly remarked that judicial review is a deliberate check upon democracy through an organ of government not subject to popular control. Again, political theory and the theory of the constitution hypothesize that given the possibility of legislative oversight and constitutional amendment, there is nothing undemocratic in responsible, independent judges acting as constitutional mediators.<\/p>\n<p style=\"text-align: justify;\">As Mauro Cappelletti observes,\u00a0Judges have become the trustees of a new conception of \u2018limited\u2019 government\u2014limited, that is, by constitutional and also by transnational mandates. At the same time, they have also become the trustees of an \u2018enlarged\u2019 government\u2014enlarged, that is, to fulfill the new goals of the social state. [The Judicial Process in Comparative Perspective] The standards of fiduciary conduct set by Cardozo for even an ordinary trustee is that \u201che is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honour the most sensitive, is the standard of behaviour.\u201d [Meinhard v. Salmon, 249 NY 458 (1928)] What then to say of a constitutional trust at once so lofty and so noble!<\/p>\n<p style=\"text-align: justify;\">The rights and values envisaged by the Constitution are not merely material. Constitutionalism implies limited government. Its history has been the movement from a culture of authority to one of justification where power and its exercise is made answerable. The judiciary, particularly the Supreme Court, as a vital institution of democratic governance has helped to inculcate and foster a constitutional culture and infuse all State actions with constitutional ethos. All seemingly wide and unfettered powers of the State are tempered by constitutional limitations to be exercised in accord with public law principles and subject to judicial review and correction depending on the nature of the function. This may be said to be of the very essence of the protection of civil and political liberties. But that is not all. The Court has been equally solicitous of the socio-economic rights. In India the scheme for the realization of the socio economic agenda comprises both the justiciable Fundamental Rights and the non- justiciable Directive Principles. The judicial contribution to their synthesis and integration has been crucial to the realization of the goals set out in Part IV both as a means to effectuate the rights guaranteed under Part III and also as a source of law for a welfare State. The Supreme Court, particularly after the first two decades, harmoniously interpreted Parts III and IV. The judiciary has much to be proud of.<\/p>\n<p style=\"text-align: justify;\">As trustees of limited government the judges have protected and upheld individual rights, enforced constitutional limitations, disciplined the exercise of power, held government and public authorities accountable. As trustees of an enlarged government they have endeavoured to synthezise and balance individual rights with the greater societal good, to translate human rights rhetoric to action. To the extent judges are able to ensure all this, they would have fulfilled the obligations of the trust that their position entails.<\/p>\n<p style=\"text-align: justify;\">The great theme in the history of our Constitutional law is the concept of law as a check upon public power. That idea has been given practical reality in the decisions of the Supreme Court. Those decisions are, to paraphrase Justice Holmes, a virtual magic mirror in which we see reflected our whole constitutional development and all that it has meant to the nation.<\/p>\n<p style=\"text-align: justify;\">Realizing the constitutional vision of justice is really good governance. The consummation of the Constitution is when justice reaches out to everyone, everywhere as contemplated and mandated by the Constitution. Our Nation-State has been striving to entrench the constitutional vision of justice and achieve the constitutional goals. Constitutionalism facilitates a democratic political system by creating an orderly framework within which decisions are made. A constitutional democracy can work only under institutional safeguards. A cultivated respect for law and enduring institutions are therefore important. An unfailing index to the maturity of a democracy is the degree of its respect for unwritten conventions. What is left unsaid in a constitution is as important as what is said; and the constitutional equilibrium can be preserved only by Obedience to the Unenforceable. The realization of all this depends upon the recognition that constitutional morality is no less essential than constitutional legality.<\/p>\n<p style=\"text-align: justify;\">The role of institutions in making democracy meaningful and successful is vital. No institution is an abstraction. The working of all constitutional institutions is influenced and determined by those who man them. An institution is, however, much more than the sum total of all who compose it.<span style=\"text-decoration: line-through;\">\u00a0 <\/span><\/p>\n<p style=\"text-align: justify;\">A constitutional democracy implies that deliberative forces prevail over the arbitrary. The right to question, to scrutinize and to dissent is of the very essence. The cardinal feature of our system of government is the requirement that the executive enjoys the confidence of and is accountable to the legislature and ultimately to the people. The political theory behind representative democracy is that the legislature must reflect the opinion of the electorate. Parliament\/legislature is a pivotal institution in a democracy. Its twin primary objectives are law making and holding the executive accountable.<\/p>\n<p style=\"text-align: justify;\">It is imperative that there is free and fair discussion and exchange of ideas in the House. Indeed the Constitution confers such freedom to enable members to discharge their duties and functions freely and effectively. It is equally important that the level of political discourse and parliamentary debates is maintained high and there is mutual respect and courtesy. The whole idea is that in a legislature you talk and deliberate, try to persuade and take decisions through discussion and persuasion. The volatile nature of raw public opinion should be refined through a process that gives elected representatives the opportunity to deliberate and exercise their judgments free from factional interests or majority intolerance. While we may have some exceptional good debates, there is certainly a sharp general fall. In this behalf the importance of wit and humour cannot be overlooked. Humour raises the level of debate and discussion, it also relieves the stress and tension. It is a great vehicle for getting a message across. It is rightly said that humour can make the wonderful moments of life truly glorious and tragic moments bearable. While the courts and the legislatures cannot and do not inquire into one another\u2019s affairs, it is well settled that judicial inquiry is barred only in matters of procedural impropriety or irregularity as contrasted with substantive illegality in which case judicial review is permissible and becomes a duty.<\/p>\n<p style=\"text-align: justify;\">The reality is that the Constitution contains a m\u00e9lange of powers. No single institution is even remotely supreme. It is as it should be and will probably always be so. Some struggle and tension do occasionally arise. Reciprocal influence is a continuing process. In the field of constitutional law the delicate balance between the various institutions whose sound and lasting quality Dicey in The Law of the Constitution(10<sup>th<\/sup> edn, 1959, p.3) likened to the work of bees when constructing a honeycomb is maintained to a large degree by the mutual respect which each institution has for the other. In British Railways Board v. Pickin [1974] 1 All ER 609 (618), Lord Reid observed that for a century or more both Parliament and the Courts have been careful to act so as not to cause conflict between them. This is as much a prescription for the future as it was for the past. [cf: R (Jackson) v. A.G. [2005]4 All ER 1253 at 1293] This is the profound truth and is equally relevant everywhere!<\/p>\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9588-6-40-319-192-1714635835.jpg\" width=\"350\" height=\"250\"><\/p>\n<p style=\"text-align: justify;\">There are dangers that a constitutional state and the people have always to be on their guard. It is necessary to build, nurture and cherish a constitutional culture or constitutionalism which is not merely regard for and adherence to form and letter but a commitment to substance which is respect for and adherence to the rule of law which is the tribute paid by power to reason, disciplining the exercise of all power and subjecting it to constitutional limitations. This indeed is constitutional morality. There has to be an unremitting endeavour in realizing this.<\/p>\n<p style=\"text-align: justify;\">The Constitution is no doubt a legal document, but it is also a social testament and a political instrument. The relation between the institutions, particularly the legislature and the executive, is more political. One cannot also overlook the relationship between the legal and the political processes which are intermixed. Constitutional adjudication, therefore, at least to some extent, is political. The politics of constitutional adjudication are clearly different from parliamentary, governmental and electoral politics. It involves rational justification and legal foundation, but constitutional review can nevertheless not claim to be innocent of politics.<\/p>\n<p style=\"text-align: justify;\">In this background some tension between the various wings of government is both inevitable and desirable. It shows that democracy is alive and working and constitutional institutions are vibrant and functional. It is some kind of a dialogue between the judiciary on the one hand and the legislature and the executive on the other.<\/p>\n<p style=\"text-align: justify;\">In one sense constitutional adjudication is, and must be, a dynamic interaction \u2013 a \u2018democratic dialogue\u2019 among the wings of the government. \u201cCourts remind legislature of the values that might otherwise be neglected and legislatures respond by expanding or refining the terms of the debate.\u201d Public law must in principle respect conventional limitations on judicial power. They are crucial to the functioning of a democratic state. To remember that there can be no legal solubility to every problem and that the judicial process has its inherent limitations is wisdom and acknowledgment of a stark reality. The court is not a \u2018one stop solution to resolve complicated issues of policy and society.\u2019<\/p>\n<p style=\"text-align: justify;\">Prof. Dieter Grimm, former Justice of the Federal Constitutional Court of Germany mentions that while amendments are an external corrective to the power of courts, there is also an internal corrective. \u201cEven if it is true that, what is legally acceptable and what is not, can only be defined in the legal system, it is never defined once and for all and judges are not the only actors to take part in the ongoing discussion. It is therefore extremely important that constitutional courts are embedded in a lively discourse in which the division of functions between the political and juridical branches of government, the acceptability of legal methods and the soundness of interpretations are constantly evaluated and readjusted\u201d.<\/p>\n<p style=\"text-align: justify;\">We hear the same idea echoed and expatiated on in a recent judgment of the Supreme Court in Gujarat Ujra Vikas Nigam v. Amit Gupta (2021) 7 SCC 209 where Chandrachud, J. speaking for the Court observed profoundly: The core of constitutional dialogue is that the different wings-judiciary and legislature- engage in a conversation about constitutional meaning in which both actors should listen to learn from each other\u2019s perspectives which can lead to modifying their own views accordingly. The court is, at its heart, an institution which responds to concrete cases brought before it. It is not within its province to engraft into law its views as to what constitutes good policy. That is a matter within the legislature\u2019s remit. Equally, when presented with a novel question on which the legislature has not yet made up its mind, the court cannot sit with folded hands and simply pass the buck onto the legislature. In such an event the court can adopt an interpretation-a workable formula- that furthers the broad goals of the legislation concerned while leaving it to the legislature to formulate a comprehensive and well considered solution to the underlying problem. To aid the legislature in its exercise the court can put forth its best thinking as to the relevant considerations at play, the position of law obtaining in other relevant jurisdictions and the possible pitfalls that may have to be avoided. It is through the instrumentality of an inter-institutional dialogue that the doctrine of separation of powers can be operationalised in a nuanced fashion. It is in this way that the court can tread the middle path between abdication and usurpation.<\/p>\n<p style=\"text-align: justify;\">One cannot also forget what Prof. Laurence Tribe perspicaciously observes, \u201cSuch passing finality as judicial pronouncements possess is an essential compromise between constitutional order and chaos. The Constitution is an intentionally incomplete, often deliberately indeterminate structure for the participatory evolution of political ideals and governmental practices. This process cannot be the special province of any single entity.\u201d<\/p>\n<p style=\"text-align: justify;\">But the relationship between the judiciary and the other wings is expected to be correct and nothing more. Bonhomie or cordiality, more often than not, may herald the demise of democracy and constitutionalism. The court is not accountable to the legislature or the nation in the way a legislator is. It is accountable to the constitution and its values. That is the personal and institutional independence of the judge.<\/p>\n<p style=\"text-align: justify;\">If it is accepted that courts are constantly remaking the law, which indeed they do, then it is of the greatest social importance that the law should be made in conformity with the best available inputs from other disciplines. An appreciation of what Holmes called \u2018the secret root from which the law draws all the juices of life\u2019 by which he meant \u2018considerations of what is expedient for the community concerned\u2019 [cf: The Common Law p.32] furnishes a more viable point of departure for a jurisprudence of the age of the positive State. Can it not be said that the judiciary may legitimately serve as part of an \u2018aristocracy of talent\u2019, to use Carlyle\u2019s phrase, in helping to build that jurisprudence?<\/p>\n<p style=\"text-align: justify;\">As Cardozo said, \u201cYou may say that there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. I am not disposed to deny this, but in my view it is quite beside the point. The point is rather that this power of interpretation must be lodged somewhere, and the custom of the constitution has lodged it in the judges. If they are to fulfil their functions as judges, it could hardly be lodged elsewhere. Their conclusions must, indeed, be subject to constant testing and retesting, revision and adjustment; but if they act with conscience and intelligence, they ought to attain in their conclusions a fair average of truth and wisdom.\u201d This captures the quintessence of judicial role and power in a democratic framework.<\/p>\n<p style=\"text-align: justify;\">There may be no unanimity on the scope and limit of judicial power but there is no gain saying that it is essential as long as it does not breach its embankments. That judicial review is legitimate does not mean it is unconfined. The genius is to find the limits. In the art of creativity, in the delicate balancing between creativity and fidelity, in choosing where to draw the line which makes it possible to find just that compromise between the letter and the spirit and guide him to safety lies the wisdom and genius of the judge, a quality which is God\u2019s gift as Learned Hand said but which can also be acquired by experience, dedication and application.<\/p>\n<p style=\"text-align: justify;\">Prof. Friedmann perceptively remarks that in the modern democratic society the judge must steer between the Scylla of subservience to Government and the Charybdis of remoteness from constantly changing social pressures and economic needs. The genius of constitutionalism which supports the rule of law lies in the constitution \u2013 its resilience which provides ample opportunity for both continuity and change, in the method of interpretation and in the wisdom and ability with which the judges, in spite of a few bad mistakes \u2018have steered between the horns of their dilemma\u2019.<\/p>\n<p style=\"text-align: justify;\">It is no doubt true that judicial review is recognized and even ordained by the constitution. Yet judicial review operates in a democratic set up and its counter majoritarian character is reconciled with democratic majoritarian principles on certain well known and recognized basic assumptions. We cannot but accept that judicial review is essential in a government with limited powers and as a bulwark for the protection of individual rights and liberties.<\/p>\n<p style=\"text-align: justify;\">In this subject we necessarily hear undertones of the perplexities of reconciling apparent contradictions. One need not, perhaps, be too disconcerted by the various pulls and pressures tending to upset what one believes to be an ideal constitutional balance. \u201cThe basic dilemmas of art and law are, in the end, not dissimilar, and in their resolution \u2013 the resolution of passion and pattern, of frenzy and form, of convention and revolt, of order and spontaneity \u2013 lies the clue to creativity that will endure.\u201d [Paul A. Freund: On Law and Justice, Cambridge, Mass (1968)]<\/p>\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9577-12-0-280-233-1714635896.jpg\" width=\"350\" height=\"250\"><\/p>\n<p style=\"text-align: justify;\">Constitutions may be easily copied, temperaments are not. Therefore, constitutional values and aspirations will have to be internalized in the psyche of the nation. We need to develop and always have a decorous regard for and play by the rules of the constitutional game. What is necessary and important is character, both individual and national. It is the weight of public opinion that will have to prevent any perversion of the system and ensure its smooth working. This seems to be a distant hope and goal, but for its attainment there should be ceaseless striving. That depends on the citizenry as a whole. For, democracy is a beckoning goal, not a safe harbour, freedom is an unremitting endeavour, never a final achievement and no office in the land is more important than that of a citizen. Therefore it is that we need to constantly remind ourselves that the Constitution- our treasured inheritance which we have to cherish- is presently in our keeping and that we at once its servants and its masters renew and maintain our allegiance to the fundamental charter.\u00a0<\/p>\n<p style=\"text-align: justify;\">More than sixty years ago Lord MacDermott in his Hamlyn Lectures of 1957[Protection from Power under English Law, Stevens & Sons, London (1957)] spoke of law as a protection from power. In these decades that have gone by public law has grown by leaps and bounds, its tools have been innovated, sharpened and refined. The contours of judicial review have been drawn with sharper edges. It effectively serves as a shield against the onslaughts of power of different genres.<\/p>\n<p style=\"text-align: justify;\">The march of science and technology and the interplay of economics and social sciences and law and the influence of all this on the existing political and legal institutions cannot be overlooked. All this throws up newer challenges and offers more creative possibilities for judicial review. This calls for a robust and balanced exercise of the power of judicial review in fulfilling the obligation of trustees of an enlarged government. The Constitution has to be judiciously and wisely worked in order to realize the constitutional vision of justice and to ensure that it remains workable in a broad sense. This requires applying unchanging constitutional principles to changing circumstances \u2018to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs\u2019.<\/p>\n<p style=\"text-align: center;\"><img src=\"\/storage\/app\/media\/Sudhish%20Pai\/cropped-images\/IMG_9596-0-0-0-0-1714635963.jpg\" width=\"350\" height=\"250\"><\/p>\n<p style=\"text-align: justify;\">\u201cWhatever pleases the Emperor has the force of law is not an article of democratic faith\u201d, observed Chandrachud, J perceptively in the PM\u2019s Election case. Would Holmes's famous aphorisms pointing in the direction that judges should defer when the legislature reflected the pervasive and predominant values and interests of the community and that he had, for example, no \"practical\" criterion to go on except \"what the crowd wanted\" always hold good? Are there not situations where judicial review and activism become a duty? These are issues for which one can provide no straight and simple answers. They would certainly trigger a debate on the potency, validity and limits of judicial review. Whether judicial review should address these matters is a question that I have not discussed here, whether it will<em>, <\/em>and if so how<em>,<\/em> is a question for another day.<\/p>\n<p>\u00a0<\/p>\n<p>\u00a0<\/p>\n<p>\u00a0<\/p>\n<p>\u00a0<\/p>\n<p>\u00a0<\/p>\n<p>\u00a0<\/p>\n<p>\u00a0<\/p>","published_at":"2024-04-06 13:21:04","published":1,"created_at":"2024-05-02 13:22:47","updated_at":"2024-05-02 13:56:43","metadata":null,"ginopane_blogtaxonomy_series_id":null,"seo_title":null,"seo_description":null,"seo_keywords":null,"canonical_url":null,"redirect_url":null,"robot_index":null,"robot_follow":null,"summary":"<p style=\"text-align: justify;\">Democracy essentially means the rule of the majority. As Chandrachud, J observed in the PM\u2019s Electio<em>n<\/em> case, \u201cForgetting mere words which Tennyson said: \u2018Like Nature, half reveal and half conceal the soul within\u2019, the substance of the matter (democracy) is the rule of the majority and the manner of ascertaining the will of the majority is through the process of elections.\u201d Constitutional democracy is one where the majority \u2018will\u2019 and rule is controlled and directed by constitutional principles or constitutionalism. While the consent of the governed is a basic value in a democracy, constitutiona...<\/p>","has_summary":true,"categories":[{"id":34,"name":"\u0986\u0987\u09a8-\u0986\u09a6\u09be\u09b2\u09a4","slug":"legal","code":null,"description":"","parent_id":33,"nest_left":64,"nest_right":65,"nest_depth":1,"created_at":"2019-02-12 14:27:04","updated_at":"2019-03-30 13:00:59","url":"https:\/\/www.banglaworldwide.com\/category\/legal","pivot":{"post_id":1682,"category_id":34}},{"id":22,"name":"\u0996\u09ac\u09b0\u09be\u0996\u09ac\u09b0","slug":"news","code":null,"description":"","parent_id":null,"nest_left":3,"nest_right":10,"nest_depth":0,"created_at":"2019-01-29 13:27:00","updated_at":"2024-03-19 16:44:22","url":"https:\/\/www.banglaworldwide.com\/category\/news","pivot":{"post_id":1682,"category_id":22}},{"id":72,"name":"\u09a4\u09c3\u09a4\u09c0\u09df \u0986\u09a8\u09cd\u09a4\u09b0\u09cd\u099c\u09be\u09a4\u09bf\u0995 \u09ac\u09be\u0999\u09b2\u09bf \u09b8\u09ae\u09cd\u09ae\u09c7\u09b2\u09a8","slug":"tritio antor","code":null,"description":"","parent_id":null,"nest_left":119,"nest_right":120,"nest_depth":0,"created_at":"2024-04-23 13:08:19","updated_at":"2024-04-24 17:06:44","url":"https:\/\/www.banglaworldwide.com\/category\/tritio%20antor","pivot":{"post_id":1682,"category_id":72}}],"featured_images":[{"id":2475,"disk_name":"663347aa74629881513588.jpg","file_name":"IMG_9589.JPG","file_size":7396292,"content_type":"image\/jpeg","title":null,"description":null,"field":"featured_images","sort_order":2475,"created_at":"2024-05-02 13:28:34","updated_at":"2024-05-02 13:28:38","path":"https:\/\/www.banglaworldwide.com\/storage\/app\/uploads\/public\/663\/347\/aa7\/663347aa74629881513588.jpg","extension":"JPG"}]} December 21st pm 31 7:24pm
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