Are we moving towards "judicial" democracy?

By Prabhakar Timble
26 February 2013 06:32 IST

“A government of laws and not by men” is the cornerstone of our constitution and the democratic way of life to which we are tied. Along with this, our marriage is with parliamentary democracy. The aircraft of the Rule of law does not and should not land on the airport of judges and courts. Recent developments give a feeling that we are sinking in the sea of judiciary in the name of rule of law and democracy. This is not a welcome sign.

Judicial arrogance and judicial usurpation of power is not new. Undoubtedly, we should maintain the respect for judiciary and guard its independence. At the same time, the judiciary should not cross the “lakshman- rekha” and enter the domain of parliament and the executive.  Some judgements and interim orders of the higher judiciary release the fragrance of the desire to legislate and the thirst to govern. There are many instances wherein judicial decisions have encroached on the power of the parliament and the executive. Due to the failure of these two organs and more due to the falling standards of the occupants of office in these two institutions, people seem to repose disproportionate faith in judges and courts. This should not be a licence to the judges to enter the domain of legislation, governance and policy formulation.

Judicial oligarchy cannot rule

People should not surrender their power to judges and judiciary because this is not what democracy means. Democratic governance is by consent of the people, not the approval and certification from judiciary. Of late, the judges are claiming greater knowledge over political and economic affairs and exercise their power to decide over these matters. Courts should restrain unconstitutional exercise of power by parliament and the executive. At the same time, going beyond this agenda would make the judicial power unconstitutional. This would be the end of democracy and installing judicial democracy on the throne. An oligarchy of judges cannot be allowed to rule the parliament and the government. Judges cannot be permitted to be our masters just as we do not tolerate bureaucrats, ministers and elected representatives to be the masters of the people. The judiciary also needs to introspect. Otherwise, a situation would arise when an elected representative would refuse to comply by the directions of the High Courts and Supreme Court. Given unchecked power, the men in the black robes and white bands would also one day abuse the power.

A feeling has gained credibility in society that all matters and decisions would proceed as per law if decided by judges or by retired judges. Hence, people demand judicial intervention in each and every issue. We should not finally arrive at a situation wherein the parliament and the executive listen to a handful of individuals sitting in the High Court and Supreme Court as opposed to the people and the elected representatives. The parliament and the executive are also the forums of the people. Social justice and economic empowerment can be better promoted by these forums as compared to the Courts.

I do not deny the significant role of the judiciary in upholding constitutional law. I also appreciate the role of the judiciary in restoring fairness and justice in society. We speak of the nexus between business and government, between money power and government and the criminal-politician friendship. It would be foolhardy to assume that judges and judiciary are free from such a nexus. The money power also grinds the law and rules the judiciary.

Our legal and court system has also serious operational deficiencies. In the criminal side, the conviction rate is around 25%, with over 75% acquittals for want of proof beyond doubt. There is a faith crisis in delivery system.  Our system ensures the prosperity of the lawyers and the judges more than the interests of the litigants. The litigant i.e. the consumer of judicial and court services is hopelessly beaten since the service suffers from multiple deficiencies. The judgements delivered are mostly verbose and lengthy. Many times I think that even if their length is reduced to a summary size, the truth will not get affected. Truth need not be told in circles. Judgements are shaping into academic projects rather than functional weapons. It is for the higher judiciary to reform this area understanding the mission of law.

Legal mind v/s judges

There are a few rainbows and star judgements which have contributed to social engineering. Judiciary has also checked the excesses of the government. We should be proud of our judiciary but the system of delivery of justice is in doldrums. I do not understand the clamour for retired judges to fill positions in Commissions of inquiry and in quasi-judicial bodies. Somehow, we think that only persons who have occupied the positions of judges have a legal mind. It is a wishful thinking that only judges and former judges can promote fairness, justice, equity and law. Here also, we want to run after retired personnel of the High Court, as if; judges of the subordinate judiciary do not matter in dispensation of justice.

Undoubtedly, a judge has to be unbiased, unprejudiced, upright and fair. This does not mean that every individual occupying the chair is so. It also does not mean that only judges are just and adhere to law. To compartmentalise only judges as clean, politicians as corrupt and businessmen as greedy would be oversimplification. Accomplished men and women from the field of art, theatre, literature, education, science, social work, politics and business also have a legal mind, probably of equal level as the judges. They also have the qualities of the head and heart. The social climate which dominates with the view that only judges ----past, present and future can give a fair deal to the citizens is not correct and conducive for democracy.

I agree with the view of Lord Breyer (In his book: Making Our Democracy Work) when he says “Courts could be more right, than wrong”. I definitely recognise the significant mark of the Indian judiciary in guarding individual freedom, striking down governmental lawlessness and guarding rights of the underprivileged, marginalised and the minorities.  Controversial judgements are not undemocratic as long as they uphold the constitutional law and spirit. At the same time, the public cannot stand quiet when democracy slips away in the hands of judiciary. It may be true that the parliament and the executive are losing legitimacy and respect. Politicians and the elected representatives are losing esteem, faith and confidence every day. However, this cannot be the reason for growing reverence and trust in judges and judiciary. If I can draw an analogy from the game of cricket------Judiciary has to be the umpire, at the most also a third umpire. However, the game should be played by the Parliament and the Executive with the elected captains in command and with the involvement of the citizens.  

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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