Governance
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This article is written by Ronika Tater, from the University of Petroleum and Energy Studies, School of Law. In this article, she discusses the role of the judiciary in good governance with the support of various provisions and case laws.

Introduction

“The seat of Justice is the seat of God”.

Mahavir Tyagi

While framing the Constitution, the members of the Constituent Assembly knew that the judiciary is an extension of the rights and courts should be envisaged as the rights forced. The judiciary looked like the arm of the social revolution during the colonial period, upholding the nationality and the integrity of Indians. The Indians were not able to gain it during the colonial period as the Britishers were afraid that social change would impact their rule. However, under the Constitution, all this was changed. The judiciary was seen as one of the most tangible pieces of evidence of independence. Progressively, the judicial administration has been able to meet the desire and needs of the changing time and society of modern India.

What is governance

Governance in layman language means how the government should function. It means the process of decision-making and the procedure by which the decision is implemented. It is often realized that the quality of the government depends upon the States. Over time, with changing government, the definition of governance has also been adapted. In the contemporary world, the majority of the States are founded on the principle of a ‘Welfare State’. It is a concept of government where the State ensures full participation of their respective citizens to achieve the common good to attain optimum growth and development of the individual, thereby preserving the societal interests. This evolution has led to ‘Good Governance’, which is an umbrella concept comprising the basic values of the society concerning economic, political, and socio-cultural issues. It also encompasses basic human rights and duties which need to be followed through an accountable and upright administration. 

The United Nations Commission on Human Rights states that the key features of good governance consist of transparency, responsibility, accountability, responsiveness, and participation to the needs of the inhabitants. A government is expected to fulfill its commitment and enable an environment suitable for the enjoyment of human rights and individual growth. It is also expected to ensure accountability and transparency in the use of public resources by utilizing the funds for the benefit of the public. In short, it means active participation in public policy-making, an independent judiciary, the separation of power between the legislature and the executive, and effective administration for check and balance.

Meaning of democratic government 

Democracy is vibrant and considered as one of the best forms of good governance, as it signifies government of, by, and for the people. It has evolved considering the change in the society and the minds of the people for attaining dignity and right to participate in the decision-making process that led to the policies. It involves equal accountability of all before the law, irrespective of their status, religion, caste, sex, language or race. India is a democratic country and it follows the definition as ‘a government by the people, of the people and for the people. India’s founding fathers and mothers have entailed in the Constitution both the nation’s ideals and the institution for achieving the objective. These ideals consist of national unity, integrity, a democratic, and equitable society. The new government was formed with a democratic spirit using both constitutional and democratic institutions.

Democratic features of the Constitution

The democratic features of the Constitution were cautiously drafted by the Constituent Assembly. To constitute India into a sovereign, socialist, secular, and republic, a bill of rights providing equality under the law, personal liberty, and an independent judiciary was to become the base of the new society by replacing the traditional hierarchy and its repression. Hence, parliamentary democracy was chosen as the form of the government in which the State power is divided into the three main pillars, namely the legislature, the executive, and the judiciary.

What is the conscience of the Constitution

The Indian Constitution is first and foremost a social document. The Fundamental Rights in Part III and Directive Principles of State Policy in Part IV were included in the Constitution with the hope that one day the tree of true liberty would bloom in India. The fundamental rights are those rights of citizens or those negative obligations of the State to not violate individual liberty. These rights are provided in the Constitution namely, the right to equality, the right to freedom of religion, the right against exploitation, the right to property, cultural and educational rights, and the right to constitutional remedies. To enforce any violation of fundamental rights, the citizen can move to the Supreme Court and other courts.

Part IV of the Constitution covers Directive Principles of State Policy (DPSP) which is the fundamental principle for good governance in the country. It defines the clearer statement of the social revolution, to make India free from coercion and to provide for a surrounding that ensures the growth and development of each individual to its best selves. The State, while making laws, should abide by the DPSP. Moreover, the principles are not enforceable in the court of law but they are fundamental in the governance of the country. The essence of DPSP is provided in Article 38 which reads, “the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic, and political, shall inform all the institutions of the national life”. Hence, these two are the conscience of the Constitution.

Role of judiciary in promoting good governance

To ensure that the promises of an independent nation would not remain merely on paper, the Constitution framers made provision for the independence of the judiciary. Indian judiciary is the custodian and the guardian of the Constitution. It should be above reproach, free from coercion, and political influences. The function of the judiciary is paramount as it is not only the watchdog against the violation of fundamental rights but it also looks after any discrimination provided by the State, abuse of the State’s power, arbitrariness, etc. The founding father of the American Constitution, James Medison, has rightly expressed the true meaning of the judiciary in India is “truly the only defensive armour of the country and its Constitution and laws”.

One of the essential functions of democratic governance is the presence of constitutional limits on the extent of government power. Such limits include periodical elections both in the centre and the state, an independent judiciary that guarantees the citizens protection of their rights, and seeking redress from the government actions. The judicial system is the most important facet of good governance and plays an essential role in ensuring better public governance. Hence, to resolve various issues the Constituent Assembly has rightfully made two sections of the judiciary in the Constitution: the Union Judiciary, that is, the Supreme Court, and the State Judiciary, that is, the High Courts in the states. The judiciary through its various rules, regulations, and procedures resolves disputes ranging from various issues of environment, health, human rights, gender justice, education, minorities, police reforms, election, etc., keeps in check the constitutional validity of the parliamentary amendments in the Constitution. It has played a significant contribution to good governance through its judicial precedents.

Case laws

The Indian judiciary has played a pro-active role in elaborating the scope of the fundamental rights consistently, rigidly opposing the intrusion of any State agent while exercising its function thereby, upholding the rights and dignity of the individual. This is called the true spirit of good governance. Over time, the Courts have issued various guidelines and commands for law enforcement. In the case of Hussainara Khatoon and others v. Home Secretary State of Bihar (1979), the Court observed a travesty of justice of under-trial prisoners in custody due to unrealistically deal by imposing conditions of bail by the magistrate or the police. The Court issued corrective guidelines as per the procedure established by law and held that as per Article 21 depriving a person of life or personal liberty should be done in a reasonable, fair, and just manner.

In a similar case of Prem Shukla v. Delhi Administration (1980), the Supreme Court observed the practice of using handcuffs and fetters on the prisoners as violative of their fundamental right under Article 14 right to equality before the law, Article 19, and the right to life under Article 21. The act to bind a man’s hand and foot with hoops of steel, shuffle him in the streets, stand for long hours in the Courts, torture has led to dehumanizing the prisoner thereby, violating his personhood and the value of our constitutional culture. In the case of, D.K.Basu v. State of West Bengal (1997), the Court observed that custodial torture to be a clear violation of human dignity and stated that the law does not permit the use of third-degree methods of torture for extracting a confession. The action of the State should be in a fair, just, and reasonable manner.

The Supreme Court of India has also been proactive and progressive in issuing guidelines on preventing sexual harassment in the workplace. In the case of, Vishaka v. State of Rajasthan (1997), the Court extended directives for equal status in employment. In the Secretary Ministry of Defense v. Babita Puniya (2011), the Court observed that the physiological differences between men and women do not constitute a valid argument for denying equal opportunity to women officers. The court in this case put reliance on the progressive social transformation and directed the Union Government to ensure that all the women officers in the army shall be granted a permanent commission as par as with their male counterparts.

Further, the judiciary is also played as the guardian of the preamble of the constitution. In the case of Kesavananda Bharati v. the State of Kerala (1973), the 13 Bench judges examined the correctness held in the case of Golak Nath v. the State of Punjab (1967) to determine the question of law relating to Parliament’s power of amendment of the constitution. The Court in the Kesavananda case held that Article 368 does not empower the Parliament to amend the basic structure of the Constitution. 

The Indian judicial system, through its judicial pronouncement, has contributed to good governance. The judiciary has protected the rights including the right to life and liberty, right against torture or inhumane treatment, right to due process and fair treatment, right of presumption of innocence until proved guilty, right to be tried speedily, right to equality, etc.

Judicial review and governance

The members of the Constituent Assembly believed judicial review to be an essential power of the courts. Judicial review of legislative and executive action is one of the important developments in the field of public law. The concept of judicial review was first developed in the famous case of Marbury v. Madison (1803). In the case of Chandra Kumar v. Union of India (1997), the Court held that the power of judicial review over legislative action is envisaged in the Supreme Court under Article 32 and in the High Court under Article 226 is an integral part of its basic structure. The judicial review is exercised by the court to review any law passed by the Parliament and to maintain its accountability, and in case if it goes against the rule of law to declare it null or void. Further, it is important to note that the Constitution does not provide the judiciary to a super-legislature or enter into the function of the other two organs. In S.R Bommai v. Union of India (1994), the Court held that there is a certain circumstance whether the political elements rule and there is no possibility of judicial review. 

Conclusion

The judiciary has played a quintessential role in developing the right jurisprudence by expanding the libertarian and democratic values through judicial pronouncement. The influence of the court is not limited to resolving the final dispute, but also as a frontline guard to constitutional value and the fundamental principle of good governance. Dr. B.R. Ambedkar rightly said that one single integrated judiciary having jurisdiction to provide remedies in all cases of constitutional law, civil law, and criminal law is “essential to maintaining the unity of the country”.

References


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