In modern period all countries adopting democratic polity and welfare state concepts, where the administrative authorities are vested with vast discretionary powers. The exercise of those powers often becomes subjective in the absence of specific guidelines etc. Hence the need for a control of the discretionary powers is essential to ensure that 'rule of law' exist in all governmental actions. The ultimate choice to victim from arbitrary action of the government is Judiciary. In recent years, courts have risen in power across the world, and the Indian Judiciary has rightly been pointed to as an example of this global trend. In many ways the Indian Court has become a court of good governance that sits in judgment over the rest of the Indian government. This Article argues that the Court has expanded its mandate as a result of the shortcomings (real, perceived, or feared) of India’s representative institutions. The Indian Supreme Court’s institutional structure has also aided its rise and helps explain why the Court has gained more influence than most other judiciaries. This Article examines the development of India’s basic structure doctrine and the Court’s broad right to life jurisprudence to explore how the Court has enlarged its role.

“There is no better test of the excellence of a government than the efficiency and independence of its judicial system” - - Lord Bryce[1]

Democracy is a word more familiar almost all over the world in modern period. After the French revolution one can witness a huge demand for democratic form of government in almost all the nations. Through freedom struggles or by way of people’s revolutions many nations in the world started to establish democratic governments. Democracy is a political form of government in which governing power is derived from the people, either by direct referendum or by means of elected representatives of the people. That’s why one can that democracy form of government is peoples government. But it is a challenging form of government to both for people as well as politicians.

The term democracy comes from the Greek language and means “rule by the people (demo means ‘people’ and cracy means ‘government’ ”. People vote for their representatives and the one with the most votes goes on to act for the majority; the majority being the collective people who voted for the representative. That representative speaks on behalf of the majority who voted him in and votes in such a way as to embody the will of that majority. However, this system is not flawless. What about those who are not in the majority? This group is known as the minority. While the minority is not being indirectly represented by the politician like the majority, the minority still retains their basic rights and expects the majority to show consideration for those rights as well. The minority also knows that while they may not be in the majority at this time they will not always be in the minority on every issue. The minority accepts that in order for our government to work competently the will of the people, in the case the majority, must be fulfilled.

At this juncture the need of the Constitution (written) became one of the basic points to uphold democratic form of government. Why because through democratic government state need to balance between sovereign power of the nation as well as liberties of the people. So, there is a need to follow ‘doctrine of separation of powers’ said by Montesquieu to maintain checks and balances between organs of the state. Again there is a need for custodian of the constitution to uphold spirit of constitution and democratic government, so, Judiciary started to be recognized as custodian of the constitution in almost all nations for which India is also not an exception. Being a 3rd organ of the government Judiciary in the country plays an essential role in maintaining peace and imparting justice and also for the enjoyment of fundamental rights. Judiciary is an important pillar for the smooth functioning of democracy and thereby to establish good governance in a nation. Prof. James Wilford Garner rightly said that “A society without Legislative organs is conceivable but a civilized State without judicial organ is hardly conceivable”[2].

Constitutional safety for Democratic governance in India

In the dictionary definition for democracy is "government by the people in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system." In the phrase of Abraham Lincoln, democracy is a government "of the people, by the people, and for the people." So, a political system can properly be called democratic only if the government in power can be peacefully elected or removed by a majority decision of the people, through fair and open elections. At the same time the values of democracy one can find where the will of the people shall be the basis of the authority of government and people’s human rights should be protected by the rule of law. By recognizing this Indian constitutional framers through constitution of India provided parliamentary democracy political structure, which works on the principle of fusion of power and in the making of law, there is direct participation of the legislature and the executive, it is the judiciary that remains independent and strong safeguarding the interests of the citizens by not allowing the other organs to go beyond the constitution.

It acts, therefore, as a check on the arbitrariness and unconstitutionality of the legislature and the executive. The word ‘democratic’ used in the preamble indicates that the constitution has established a form of government which gets its authority from the will of the people. The rulers are elected by the people and are responsible to them. Justice, liberty, equality and fraternity which are essential characteristics of a democracy are declared in the preamble of the constitution as the very objectives of the constitution. The preamble to the constitution declares that the constitution of India is adopted and enacted by the people of India and they are the ultimate master of the Republic. Thus the real power is in hands of the people of India, both in the Union and in the State.

Role of Judiciary in promoting democracy and good governance

A) Basic structure theory
Judiciary is the final arbiter in interpreting constitutional arrangements. It is in fact the guardian and conscience keeper of the normative values and rights that are authoritatively allocated by the state. In India the major source for rights is constitution and it is mainly based on the concept of ‘rule of law’. To ensure the ‘rule of law’ in all governmental activities, higher judiciary provided with a special power namely ‘the Judicial review power’ to monitor governmental actions to put them within the limits of constitution.

In this journey judiciary provided with judicial review power to safeguard rights of the people from arbitrary action of the government to uphold the democratic spirit of the Constitution. But there were so many incidents happened in India, which are threat for democratic governance. Generally ‘Government’ and ‘governance’ are two very similar words – and people are often confused about the differences between the two. In fact government is a group of people who rule or run the administration of a country. On the other hand, governance is the act of governing or exercising authority. ‘Good governance’ is an indeterminate term used in international development circles to describe how public institutions conduct public affairs and manage public resources. It involves the process of decision-making and the process through which decisions are implemented or not. More over good governance has some major characteristics.

It is participatory, accountable, transparent, efficient, effective and follows the rule of law. It assures that corruption is minimised, and the voices of the vulnerable are heard in decision-making. It is also responsive to the present and the future needs of society. So, to achieve all these constitutional framers has appointed higher judiciary as custodian of the constitution. In fact from the commencement of the constitution Indian judiciary has been playing an admired manner. But it can be best evident in Indira Nehru Gandhi v. Raj Narayan[3], where the Supreme court of India applied the theory of basic structure to protect democratic structure. In this case court struck down clause (4) of Article 329 (A), which was inserted by the constitution (39th Amendment) Act. 1975 on the ground that it was beyond the amending power of Parliament as it destroyed the ‘basic feature’ of the Constitution.

The amendment was mad o validate with retrospective effect the election of the prime ministers which was set aside by the Allahabad High court. Khanna, J., struck down the cause on the ground that it violated the free and fair elections which was an essential postulate of democracy which in turn was a part of the basic structure of the constitution; Chandrachud, J., struck down clause (4) and (5) as unconstitutional on the ground that they were outright negation of the right of equality conferred by Art.14, a right which is a basic postulate of our constitution. He held that these provisions were arbitrary and were calculated to damage or destroy the Rule of law.

The Supreme court has thus added the rule of law, Judicial review power, Democracy, which implies free and fair election as basic features of the constitution to the list of basic feature laid down in the Keshvananda Bharti case[4].

Justice Beg’s opinion in Indira Gandhi supports the basic structure doctrine with an argument that is both pragmatic in its fear of sovereignty resting solely in the people’s representative institutions, and idealistic in its embrace of the Constitution. He found that “our concepts of sovereignty must accord with the needs of the people of our country.”

Justice Beg also held that the concept of the Supremacy of the Constitution is, undoubtedly, more suited to the needs of our country than any other so far put forward. It not only places before us the goals towards which the nation must march but it is meant to compel our Sovereign Republic, with its three organs of Government to proceed in certain directions...

Can we deny (the Constitution) that supremacy which is the symbol and proof of the level of our civilization?
In explaining the necessity of a separation of powers in the amendment process, and by implication within the Constitution more generally, Justice Mathew’s opinion in Indira Gandhi contrasts a “less civilized” pre-British Indian sovereign: A sovereign in any system of civilized jurisprudence is not like an oriental despot who can do anything he likes, in any manner he likes and at any time he likes. That the Nizam of Hyderabad had legislative, judicial and executive powers and could exercise any one of them by a firman has no relevance when we are considering how a pro-sovereign—the holder of the amending power—in a country governed by a constitution should function. And at the same time in his concurring opinion, Justice Chandrachud finds that even despots recognize the legitimacy that comes with judicial checks on their power. He then echoes Justice Mathews’s remarks that this is certainly true in a modern democracy as well: The most despotic Monarch in the modern world prefers to be armed, even if formally, with the opinion of his Judges on the grievances of his subjects. . . . I find it contrary to the basic tenets of our Constitution to hold that the Amending Body is an amalgam of all powers—legislative, executive and judicial. “Whatever pleases the emperor has the force of law” is not an article of democratic faith. The basis of our Constitution is a well-planned legal order.

Justice Beg, in his interpretation of the basic structure doctrine in Indira Gandhi, discusses the different checks on sovereign power that have existed throughout history to show that judicial review is an integral part of good governance. Amongst several examples, he writes: The ideal King, in ancient India, was conceived of primarily as a Judge deciding cases or giving orders to meet specific situations in accordance with the Dharma Shastras.

It also appears that the actual exercise of the power to administer justice was often delegated by there are also two International Covenants adopted by the General Assembly for securing human rights, one is the International Covenant on Civil and Political Rights and the other is the International Covenant on Economic, Social and Cultural Rights. Both are international instruments relating to human rights. It is therefore not correct to say that Fundamental Rights alone are based on human rights while Directive Principles fall in some category other than human rights. In Coelho in 2007[5], Chief Justice Sabharwal approvingly paraphrased Amartya Sen’s argument that “the justification for protecting fundamental rights is not on the assumption that they are higher rights, but that protection is the best way to promote a just and tolerant society.” Whether invoking natural, moral, historical, or utilitarian grounds, the Court justifies the principles of the basic structure doctrine by appealing to core elements of what it argues is needed for good governance. Modern democratic civilization, and its mandates, are made a bar to Parliament’s constituent powers.

B. Safeguarding Fundamental rights and promoting DPSP [6]
It is well known fact that Indian constitution provided fundamental rights to promote rule of law. So, to protect these rights Indian judiciary by judicial review power extended its powers which are evident in many cases. Here it is important to discuss about Art.21[7] by which court started to recognize all human rights as fundamental rights. In 1978, the Court added a reasonableness, or non-arbitrariness, requirement to article 21. In doing so, it created natural justice or substantive due process in Indian jurisprudence. The next few years saw article 21 used to outlaw cruel or unusual punishment, relax pre-trial bail requirements, restrict the conditions under which a debtor can be imprisoned, create rights against custodial violence and inordinate delays in criminal trials, and provide legal aid.

The Supreme Court embraced this more populist direction in part to regain the legitimacy it had lost during the Emergency and in its early decisions, which often sided with wealthy property owners. The Court was also caught up in the post-Emergency euphoria, a sense of excitement at the return of liberal democracy that swept the major institutions of Indian government at this time. Further, the urban middle class, which had been targeted during the Emergency, now desired to see a strong independent judiciary to check the state’s power. The press, which had been reticent to report on Indira Gandhi’s abuses, increasingly covered not only civil rights abuses, but also other social problems with new vigor.

Beginning in the mid-1980s, and then much more quickly in the 1990s, the Court expanded its article 21 jurisprudence even further to try to tackle not only the problems of the criminal justice system and government repression, but also social injustices more broadly. A litany of rights were read into the right to life, including the rights to fresh air and water, land for tribal populations, protection from environmental degradation, shelter, health, education, and food and clothing. This new interventionism was born at a time when Parliament and the country’s other representative institutions were increasingly politically fractured and viewed as abdicating their governance responsibilities.

The growth of article 21 jurisprudence also led to the development of a new form of legal practice, called public interest litigation. The Court relaxed its standing requirement, allowing any public-minded person to petition the Court on behalf of anyone he or she perceived as being deprived of his or her rights.221 It also loosened its filing requirements. For example, when a journalist wrote the Court in 1982, complaining that certain female suspects were tortured in police custody, the Court treated the letter as a petition and gave directions to ensure protection of these women and other prisoners in similar situations.[8] This action by the Court spawned a practice of persons writing letters asking the Court to intervene on pressing social issues.

Further, the Constitution’s Directive Principles[9] lay out goals for the Indian state, such as a living wage, primary education for all, and international peace and security etc. The Constitution, though, explicitly made these principles nonjusticiable[10]. This decision reflected Dr. Ambedkar’s view that all rights should have clear remedies, and that constitutions should not be filled with “pious declarations” of unenforceable rights. Although the Constitution did not on its face give the Supreme Court a mandate to enforce social and economic rights like those in the Directive Principles, the Court gradually interpreted this to be its role. This evolution, sparked by the Emergency, built momentum in the face of mass poverty across the country and was allowed to expand in the governance vacuum created by the country’s representative institutions. Like the basic structure doctrine, the Court largely justified these interventions on two grounds.

First, it interpreted an active role for itself under the Constitution’s vision for controlled social and economic revolution. Second, the Court appealed to principles of civilization or good governance that necessitated and explained its interventions. Through the Court’s right to life jurisprudence, it took on many details of governance, like ordering more stringent enforcement of traffic regulations or banning smoking in public places. Indeed, the Court took on so many functions that its right to life jurisprudence came to encompass more than just protecting life, but also promoting good governance more broadly. This role is highlighted well by M.C. Mehta v. Union of India,[11] the Taj Mahal case of 1997. This case brought to the attention of the Supreme Court that coal-fired industries around the Taj Mahal were tarnishing its white marble and polluting the lungs of nearby residents (although presumably no more than in other areas in India with coal-based industries). Citing the need to protect this wonder of civilization, the Court invoked its right to life jurisprudence and ordered that none of the polluting industries could operate in the immediate area. The Court had seemingly found the right to life in an inanimate object. Indeed, this case highlights that what is at stake for the Court in many of its right to life cases is not so much the right to life as good governance more generally (of which the protection of life and its basic necessities is only one part).

Conclusion:
It is the duty of the government as a majority based representatives for people to protect the democratic character of the India, after that it is the duty of the opposition to protect autocracy of the government. The Opposition capitalized on the rhetoric of Political corruption and the important nuances of the Courts Decisions had no place amidst the anger against the incumbent and the delirious support for the opposition, prime examples were the issues of Black Money and Coal Allocation (where interestingly allocations were cancelled across all Governments!). Such issues were sensationalized and caught the public imagination ending the reign of the grand old party. The Current regime however cannot escape the urgent problems of governance ranging from Regulatory uncertainty in Power Sector, and issues pertaining to manufacturing to those of acquisition of land, Education reforms and the ever increasing challenges in Forest Conservation and rising gender crime. Recently the Supreme Court has reminded our democracy that the jubilance of an election victory has not allowed us to time travel into a Utopian land of prosperity.

The Chief Justice of India set up a special bench on issues of “social-justice”. This Bench would look into matters of public interest especially regarding issues of the underprivileged, public distribution of food and public health. The Opposition must realize that it has must respond to new forms of governance and the need is constructive critique. Parliament is the quintessence of democracy and the opposition the voice of dissent. The Government will promote each bill and policy as a step towards progress. At the same time it is also the duty of the every citizen to protect their country like a soldier, whenever there is a threat to constitutional spirit. If the opposition and citizens fails to offer worked out alternatives, one can find the Judiciary being a custodian of the constitution occupying the ‘oppositional’ space in India’s democracy to protect and promote constitutional spirit and good governance. “In a democracy, you need to have a strong judicial system. You need freedom of speech, you need art, and you need a free press”.-Tzipi Livn[12]

End-Notes
[1] Bryce James; Modern Democracies, 1929, P-384
[2] James Wilford Garner; Political Science and Government; 1955, Page 684.
[3] AIR 1975 SC 2299
[4] Keshavananda Bharati v. State of Kerala (AIR 1973 SC 1461)
[5] I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 8617)
[6] Directive principles of state policy
[7] No person shall be deprived of his life or personal liberty except according to procedure established by law.
[8] Sheela Barse v. State of Maharashtra, (1983) 2 S.C.R. 337, 342. For another example of a letter being accepted as a petition, see Upendra Baxi v. State of Uttar Pradesh, (1983) 2 S.C.C. 308.
[9] Under part IV of the Indian constitution Articles from 36 to 51.
[10] Under article 37
[11] (1996) Supp. 10 S.C.R. 973.
[12] Available at: https://www.brainyquote.com/quotes/tzipi_livni_761481?src=t_judicial

Written by: Dr. Koneru Anuradha
Assistant Professor, Smt. V.D. Siddhartha Law College,
Kanuru, Vijayawada, Krishna District, Andhra Pradesh, India. Pin code: 52007.
E-mail: [email protected]