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ROLE OF JUDICIARY AND CONSTITUTIONALISM IN INDIA
Introduction

The judiciary is one of the three lynchpins of a democracy, the other two being the legislature and the executive. All three work in concert to ensure that the democratic system works efficiently. However, the executive and the legislature need checks on their power or a democracy can turn into an autocratic system. This is where the judiciary comes in. In a democratic country like India, the role of judiciary is significant. Judiciary administers justice according to law. It is required to promote justice in adjudicatory process. Credibility of judicial process ultimately depends on the manner of doing administration of justice. Judiciary can promote social justice through its judgments. Otherwise common man will suffer a lot.

In a democracy, the role of judiciary is crucial. Judiciary is a faithful keeper of the constitutional assurances. An independent and impartial judiciary can make the legal system vibrant. Our Indian judiciary can be regarded as a creative judiciary. Credibility of judicial process ultimately depends on the manner of doing administration of justice. Justice K. Subba Rao explains the function of the judiciary as thus, It is a balancing wheel of the federation; It keeps equilibrium between fundamental rights and social justice; It forms all forms of authorities within the bounds; It controls the Administrative Tribunals.

Justice – Social, economic and political is clearly laid down in the preamble as the guiding principle of the constitution. Social justice is the main concept on which our constitution is built. Part III and IV of Indian constitution are significant in the direction of Social Justice and economic development of the citizens. Judiciary can promote social justice through its judgments. In other sense, they are under an obligation to do so. While applying judicial discretion in adjudication, judiciary should be so cautious. And prime importance should be to promote social justice.

Supreme Court had itself suggested in one of the early and landmark case (Bandhu Mukti Morcha v Union of India) that There is a great merit in the court proceedings to decide an issue on the basis of strict legal principle and avoiding carefully the influence of purely emotional appeal. For that alone gives the decision of the court a direction which is certain and unfaltering, and that especial permanence in legal jurisprudence which makes it a base for the next step forward in the further progress of the law. Indeed both certainty of substance and certainty of direction are indispensable requirement in the development of the law and invest it with credibility which commands public confidence in its legitimacy.

The Court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the executive and the legislature by the constitution. Clear violation of constitutional or statutory provision must be interfered by the apex judiciary. If a considered policy decision has been taken which is not in conflict with any law or is not malafide, it will not be in Public Interest to require the court to go into and investigate those areas which are the function of the executive. When two or more options or views are possible and after considering them the government takes a policy decision it is then not the function of the court to go into the matter a fresh and in a way, sit in appeal over such a policy decision (Balco v. Union of India).whatever method adopted by judiciary in adjudication, it must be the procedure known to the judicial tenets. .

It is proper to conclude with the note adopted by Justice Ranganatha Misra in the case of Dr. P. Nalla Thampy Thera v.Union of India as follows:

“We think it proper to conclude our decision by remembering the famous saying of Herry Peter Broughan with certain adaptations: “It was the boast of Augustus that he found Rome of bricks and left it of Marble”

“But how noble will be the boast of the citizens of free India of today when they shall have it to say that they found law dear and left it cheaper; found it sealed book and left it a living letter; found it the patrimony of the rich and left if the inheritance of the poor; found it the two edged sword of craft and oppression and left it the staff of honesty and the shield of innocence.

“It is only in a country of that order that the common man will have his voice heard”.

Judiciary’s Role

While the judiciary has many important roles to fulfill, the ones that stand out in the current political climate are:

·        To act as guardian and interpreter of the Constitution

·        To protect fundamental and other rights of the citizens of India

The two roles aren’t unrelated. It is the judiciary’s duty to ensure that whatever measures are enacted by the legislature or the executive are in keeping with the Constitution. This means that if it has reason to believe that legislative measures go against the Constitution of the country, it can strike them down. Similarly, if these measures violate the fundamental rights of the citizens or even other rights, the judiciary can stall or end them.

The Supreme Court is at the apex of the Indian judicial system, followed by the High Courts at state level, the District Courts at district level and a number of local courts below them. The judiciary of India is independent of the legislative and the executive so that it can safeguard the interests of the people. It also ensures that any legislation that violates the Constitution is struck down. However, these aren’t the only roles it performs.

Role of Judiciary in India

Several functions and roles that don’t fall under the purview of the Criminal or Civil codes are also enacted by the judiciary. Some of these roles and responsibilities are:

·        Making New Laws – By virtue of its position as the interpreter of the Constitution and existing laws, the judiciary can create new laws. This is done by setting precedents and then following those precedents in later cases. The judiciary also has the power to overrule precedents that may violate the Constitution.

·        Preventing the Violation of Law – When someone is accused of violating the law, a lawsuit is brought against them. A judge then listens to both parties and determines whether the law has indeed been violated and, if so, how the accused should be punished.

·        Deciding on Constitutional Questions – Constitutional questions are usually decided by the Supreme Court. These can include Constitutional disputes between states or between a state and the Union. When such cases are brought in front of the Supreme Court, it decides how the Constitution should be interpreted with regards to the dispute.

·        Administrating – Apart from judicial duties, judges also perform certain functions related to administration. These functions include appointing officers, maintaining records, administering staff or superintending over lower courts.

·        Advising – There are times when the executive or the legislature turns to the judiciary to get clarity on constitutional points. In such cases, the judiciary acts as an advisory body.

·        Protecting Fundamental Rights – The fundamental rights given to Indian citizens by the Constitution and the law of the land are under the protection of the judiciary. If a court believes that a new law will violate these rights, it has the power to declare such a law invalid.

Constitutionalism is a theory of an ideology of complex ideas, attitudes and patterns of behaviour elaborating the principle that the authority of the government derives from and it is limited by a fundamental body of law.

This fundamental body of law is the Constitution. The constitutionalism has many elements; one such element is the independence of the judiciary and under the Independence of Judiciary comes the Judicial Activism. The case of Navtej Singh Johar v Union of India is one such example of judicial activism. There are many more landmark judgments with regards to this role of the judiciary which this article will be dealing in its later part. Further, it is essential to understand how judicial activism was expressly evolved.

It is essential to understand that the Indian Constitution is a vast document and the preamble sets out the goal and objective of the Constitution, one such principle as mentioned in the preamble is liberty which has a vast meaning, one of which includes the independence of the judiciary. The goal of the preamble of the Constitution directly or indirectly even forms the framework of the basic structure of the Constitution, which cannot be amended. It is essential to understand the concept and history of basic structure doctrine as this doctrine itself is an outcome of judicial activism.

The Basic Structure Doctrine even though unwritten has an expansive control over our written constitution because of its distinctiveness from the preamble. The question of the concept of doctrine of basic structure arouse first in the case of Shankari Prasad Singh Deo v. Union of India.

The question in the case was whether the constitutional amendments are considered to be law as per the definition of law under article 13 (2). Supreme Court however established that a law made by the parliament under article 368 is a constituent power of the Parliament and not an ordinary legislative power and hence they cannot come under article 13(2). This interpretation was followed till Sajjan Singh v. State of Rajasthan.

However in the case of Golak Nath v. State of Punjab court contended that the word amendment in article 13(2) included amendments to the constitution and if the amendment is infringing the fundamental rights or taking away the fundamental rights mentioned guaranteed by Part III of the Constitution, the amendment act itself would be held void and ultra vires.

However, the case of Kesavananda Bharati V. State of Kerela overruled the Golak Nath judgement and also gave the Basic Structure Doctrine a shape. Each judge from the bench gave few principles to shape the principles of basic structure.

Even though the Basic Structure Doctrine is unwritten, and thereby it does not mentioned the word judicial activism but it is essential to understand that after so many questions which had occurred in past with regards to the amendments were solve in the case of Kesavananda Bharti and the supreme court bench not only over ruled the Golak Nath judgement with the aspect of question which was raised in Shankari Prasad but it also stated that basic structure cannot be amended and then set up the guidelines for what shall be the basic frame work of basic structure and this assertiveness is nothing but the court acting actively and thereby an example of how judicial activism works and how it is linked with constitutionalism.

ACCESS TO THE COURTS

As per the Constitution of India, it is the Fundamental Right of every citizen to have access to justice. Hence, every person, common or otherwise, has access to the courts. However, in reality, legal procedures are an expensive affair, most certainly for the poor section of the society.

To solve this problem, the Supreme Court introduced the system of Public Interest Litigation (PIL), which allowed every person to approach the court first with their issue. This could be done through a simple communication as a written letter stating the case.

The courts of India play a crucial role in sustaining the Fundamental Rights as basic as food. Some years ago, a PIL enabled the Supreme Court to include the ‘Right to Food’ for all citizens, as a part of ‘Right to life, under Article 21 of the Constitution.