Law

Judicial Process and Administration

The Role of the Judiciary in Democratic Societies
 Module Details

SUBJECT NAME: LAW

PAPER NAME: JUDICIAL PROCESS AND

ADMINISTRATION

MODULE NAME: The Role of the Judiciary in Democratic

Societies

MODULE ID: JP/LAW/02/Q-I

PRE-REQUISITES: The students should have a minimum

understanding of the concept of ‘democracy
and democratic institutions’; place and role of
the Supreme Court of India in the
Constitution and the Legal system; and Indian
political system.
OBJECTIVES: Understand the nature of relationship
between judiciary and democracy; role of
judiciary in strengthening democracy.
KEYWORDS: Judiciary, democracy, public confidence,
rule of law, executive, legislature.
 Quadrant-I (E-Text)
THE ROLE OF JUDICIARY IN DEMOCRATIC SOCIETIES
1. Introduction

Democratic societies emphasize rule of law based system of governance. It is comparatively

easier to secure justice in these societies. Quite often judiciary is regarded as the guardian of
democracy and to that extent there is an inevitable bond existing between judiciary and other
institutions of democratic societies. A democratic society is known for its vital characteristics
like freedom of speech and expression, minority rights, free and fair elections, access to
information, administration of justice, and rule of law. This unit therefore examines the role of
judiciary in democratic societies with illustrative references limited to the context of India.
There is a graduation of formal, representative democracy to democracy in the modern sense,
namely, substantive democracy. Substantive democracy is known for its emphasis on the
protection of human rights. Such a protection cannot be left exclusively in the hands of the
executive and legislature which by their nature reflect transient majority opinion. Therefore,
the role of judiciary becomes important in a modern democracy. Hard cases create a platform
for judges to exercise their discretion. There may be variance in the opinion of judges based on
their education and their outlook on the world. Ideological pluralism is the hallmark of judges
in democratic societies.1
Judging goes through transformation due to the complexities involved in the judicial role. Legal
realism, positivism, natural law movement, legal process movement, critical legal studies and
the effort to integrate other intellectual disciplines into law have provided new tools to
understand the complexities involved in the judicial role. 2 In addition, the process of
globalization makes it imperative to refer to ideals and thoughts across national boundaries and
legal systems. After the Second World War, there is an increasing expectation from the
judiciary. It raises questions about judicial activism, judicial self-restraint, the theory of
separation of powers etc. The threat to democracy in the form of terrorism also compels the
state to move from passive democracy to defensive democracy.

1
Aharon Barak, ‘A Judge on Judging: the Role of a Supreme Court in a Democracy’ (2002) 116
Harvard Law Review 19, 23.
2
ibid 21.
Learning Outcome
This unit aims at achieving the following learning outcomes:
 Understanding the vital link in between judiciary and democratic societies,
 Appreciating the role played by the judiciary in the maintenance of democracy,
 Realizing the role of Indian Supreme Court in maintaining democracy in India.

2. Pre-conditions for appropriate functioning of the judiciary in democratic

societies
Some pre-conditions are necessary for judiciary to play a key role in democratic societies 3 as
indicated below and let us discuss each of these pre-conditions.

Judiciary

Independence of Judicial Public

judiciary objectivity confidence

Personal and
institutional Absence of bias Faith in judges
independence

2.1 Independence of judiciary

One of the primary tasks of the judges, apart from adjudication of disputes, is to uphold the
Constitution and democracy. For this, the judge needs to be independent individually and
institutionally. Judge shall be subservient only to law. Independence of the judge as a person is
complete only when it is accompanied by institutional independence. In many democracies the
institutional independence may be lacking. Independence of judiciary may be clearly specified
in the Constitution or may be implied. This may be visible through a number of measures like
security of tenure, salary and allowances not to their disadvantage, removal only through
impeachment etc. Independence of judiciary may be adversely affected if the appointment

3
ibid 53.
process is flawed. Supersession of judges In India in the 1970s was seen as interference by the
executive affecting the independence of judiciary. The collegium system of appointment of
judges to the Supreme Court and the High Courts were founded on participatory, consultative
process to reflect the collective wisdom of the members of the collegium. However, in the
recent years serious questions were raised about the very working of the collegium system. It
raised questions about the accountability of the judges and the public confidence in the system.
Whether the procedure suggested in the Judicial Appointments Commission Bill of 2013 4 will
be a suitable alternative to restore public confidence in the process of appointment of judges
and therefore their independence is yet to be seen.

2.2 Judicial objectivity

Judicial objectivity is important for the judge to perform his due role in a democracy. It
demands impartiality. Judge shall discharge his judicial function without fear, bias or prejudice.
It may be distinct from his individual views. The judge has to comply with the judicial tradition.
He has to subscribe to the views and needs of the society. This is possible only when he is free
from bias. At every stage of performance, the judge needs to subject his actions and omissions
to self-scrutiny. A judge must be capable of looking at himself from the outside and of
analyzing, criticizing and controlling himself. 5 It is stated that a judge does not operate in
vacuum. He is part of the society, influenced by intellectual movements and the legal thinking.
He is part of a legal system that establishes a framework for the factors that a judge may and
may not consider. The heavier the weight of the system, the greater the objectification of the
judicial process.6
Can we have a complete judicial objectivity? While accepting some choices over another, the
judge is guided by what he considers as proper in terms of fundamental values. To that extent,
some subjectivity is necessarily present in his views, influenced by his personal aspect.

2.3 Public confidence

Public shall have confidence in the judiciary. By public confidence we mean the public having
faith in the impartiality and honesty of the judges. Public shall perceive of judges as the
upholders of Constitution and democracy. However, public confidence is not synonymous with
popularity. If judiciary attempts to gain popularity by delivering the verdict in a fashion, it is
not an example of public confidence. Rather public confidence insists the judges to act in
accordance with law and their conscience. To that extent judging is a way of life with an

4
The National Judicial Appointments Commission Bill (2014)
<www.prsindia.org/uploads/media/national%20judicial/National%20judicial%20Appointment%20com
m%20bill,%20201> accessed 19 November 2014.
5
Barak (n. 1) 56.
6
ibid 57.
impartial search for truth. 7 It therefore demands an element of seclusion and restraint on
freedom of expression. It is not to suggest that judge shall withdraw from society. He is part of
the society in which he operates. In the recent years some controversies surfaced when a just
retired judge of the Supreme Court of India accepted the offer of Governorship by the Union
executive. Similarly, a sitting judge of the Supreme Court of India was nominated by
Government of India to become judge of the International Court of Justice.8
For the judiciary to maintain public confidence the following traits are suggested:9
 The judge ought to be aware of the power and limits on the power.
 The judge must recognize his mistakes.
 The judge must display modesty and an absence of arrogance.
 The judge should be honest.

3. Relationship between judiciary and other branches of Government

There prevails a constant tension in between the judiciary and other branches of Government.
This is due to the specific role assigned to the judiciary in terms of review of executive or
legislative action. At times the judiciary frustrates the political goals set by other branches
through the exercise of judicial review. How shall the judiciary respond to these challenges or
how shall they exercise their review power? Power of judicial review is intended to safeguard
Constitution and democracy. This power shall be exercised with objectivity. When the
composition or jurisdiction of the court is changed, again the judiciary is expected to act with
the same level of objectivity. Level of public confidence goes up when the court is objective.
The tension mentioned above is a natural one. It is better to have such tension to keep up the
integrity of the judiciary. Otherwise it may give an opportunity to develop speculation that
judiciary is acting in tandem with the executive or legislature due to the quid- pro- quo
arrangements. When cherished political goals are struck down by the process of judicial review,
it may generate sharp criticism against the judiciary. Some critics suggest that judiciary owes
no accountability to any one unlike the other organs of the Government. In many democratic
societies judiciary is not an elected body but an appointed one. They have either no constituency
of their own or if they have, it is a limited one. Although this criticism is harsh, it keeps a check
on the very performance of the judiciary itself to act with restraint and objectivity. Once they
act with objectivity and in accordance with law, the public confidence level goes up. In the

7
ibid 60.
8
Arghya Sengupta, ‘Judicial Propriety in an Age of Scandal’ the Hindu, (Delhi, 14 May 2012)
<www.thehindu.com/todays-paper/tp-opinion/judicial-propriety-in-an-age-of-
scandal/article3416452.ece> accessed 20 November 2014.
9
Barak (n. 1) 61-2.
name of majority, the organs of Government cannot act arbitrarily and therefore the power of
judicial review is exercised by the judiciary.
Let us examine some of the factors10 influencing the relationship between judiciary and other
branches of Government as represented below:

Relationship
between judiciary and
other branches of
Government

Attitude towards Separation of Activism and

Rule of law
the State powers self-restraint

3.1 Attitude towards the state

Relationship between judiciary and other branches of Government is influenced by the attitude
of the people towards the State. It may be that state is perceived as a threat to individual’s
freedom. In such constitutional arrangements, the legislature and executive are restrained from
interfering with individual’s freedoms, otherwise known as negative rights. In some other cases
state is viewed as committed to the realization of national aspirations. Then judiciary acts as
public institution acting in hand with the state for the realization of the aspirations of the State
and consequently the tension between judiciary and other branches are the minimum. In yet
another model, State is considered as a source good as well as evil. It is feared as a threat to the
freedom of the individual and at the same time protector of rights of the individual. In such
societies, Constitution not only consists of negative rights but positive rights too. Indian
Constitution has incorporated this pattern.

3.2 Separation of powers

Democracy nourishes itself within a system of separation of powers. Each organ of the
Government works independently within the assigned field. If a single organ is vested with
powers to enact laws, execute them and adjudicate disputes arising therefrom, it would end up
creating arbitrariness and anarchy. Role of judiciary is therefore limited to interpretation of the
Constitution and statutes which would be binding on the executive and legislature. This task is
in the form of partnership11 between the drafters of law and its interpreters. The former would

10
Barak (n 1) 117.
11
ibid 121.
occupy the position of senior partners and the latter juniors. By acting as a check on the
executive and legislature, the judiciary is restoring the constitutional balance meant by the
theory of separation of powers.
Judicial review is a check on the exercise of power by other organs of Government. Separation
of powers is not the absolutism of each branch in its own sphere. Such absolutism harms the
freedom whose realization is the basis for separation of powers. Tension would prevail among
the organs if they do not accept separation of powers in its true perspective.

3.3 Rule of law

Rule of law has different interpretations. In the formal sense it connotes rule by law. But it
conveys a limited understanding in so far as it leaves open the quality of law by which
governance happens. Even dictatorial regimes are governed by law. The Nazis administered
Germany in accordance with law. It is therefore necessary to enrich rule of law in the formal
sense with substantive additions. It is social justice based on public order. Such a notion of rule
of law strikes a balance between social equality, political independence, economic development
and internal order with personal liberty and dignity of the individual.

3.4 Activism and self-restraint

Complexities of activism and self-restraint may be understood better if one looks at the analysis
done by Professor Bradley Canon in terms of six parameters:12
 The extent to which the judge is prepared to invalidate policies that have been
determined by democratic procedures,
 The degree to which a judge is prepared to change an existing judicial ruling,
 The degree to which he is prepared to depart from the intention of the authors of the
Constitution and the clear language of the text,
 The degree to which the court determines policy and does not limit itself to protecting
democratic process ,
 The degree to which the court determines policy or leaves its determination to the
executive or to the individual, and
 The degree to which the judicial decision supplants the considerations of the other
branches of the Government.
To him it is more about action and thought process. The inquiry should be to evaluate the role,
the court plays in a democracy.

Bradley C. Canon, ‘A Framework for the Analysis of Judicial Activism’ in Stephen C. Halpern and
12

Charles M.Lamb (eds), Supreme Court Activism and Restraint (Lexington 1982).
 4. Power of judicial review
4.1 Judicial review of statutes
Many of the Constitutions after the Second World War have provision for review of the
constitutionality of the statutes by the judiciary. Even in Constitutions where no express
provision existed, courts have upheld the implied power of review. Counter arguments may not
have sustainability as long as judicial review enjoys public confidence.
By the exercise of judicial review not only a tension exists between the judiciary and legislature
but a dialogue operates or continues between them. This may occur when the judiciary strikes
down a statute as unconstitutional or interprets the statute in a way not desired by the legislature.
In both these instances, the legislature may bring in amendments or override by replacing with
a new statute. Shah Bano case is an example to illustrate the point. In the Shah Bano13 case, the
Court held that section 125 of the Code of Criminal Procedure 1973, provides for maintenance
of children, wife, parents and it includes maintenance of divorced Muslim women. Thus the
general law of the land was held to be applicable to the Muslim community too. Section 125 is
lays down criminal law and not civil law obligation and to that extent the Court was able to
suggest that criminal law is uniformly applicable to all citizens across India. As far as civil law
obligations were concerned, the Court stated that the article 44 of our Constitution has remained
a dead letter and suggested a common Civil Code. The judgment generated heated debate
among the Muslim Community, both progressive and fundamentalists. However, political
pressures succeeded in passing of the Muslim Women (Protection of Rights on Divorce) Act
1986. Shah Bano case was an ordinary case in the form of an appeal to the Supreme Court. But
the impact generated by the judgment among the Muslim Community created tension for the
political class, thereby leading to the enactment of the law. It shows how a verdict by the Court
is overcome by the legislature. Whether it is the right course of action expected of the legislative
organ in a democracy is doubtful. It is another matter that even the new statute can be subject
of judicial review.
The discussion on judicial review of legislative actions is not to undermine the democratically
assigned specific filed of activity for the legislature. This is so due to the majority rule based
on free and fair elections. Undermining the role of legislatures and overstating the role of the
judiciary are dangerous to the democratic societies. Separation of powers shall ensure to retain
the balance. Wherever lapses occur, judiciary may step in to restore democratic values.
4.2 Judicial review of executive actions
Executive derives authority from the Constitution and statutes. What constitutes executive in
the Indian constitutional scheme is elaborated in the Ram Jawaya Kapur14 decision of 1955.

13
Mohd. Ahmed Khan v Shah Bano Begum (1985) 3 SCR 844.
14
Ram Jawaya Kapur v State of Punjab AIR 1955 SC 549.
Whenever the action of the executive is challenged, the judiciary can scrutinize the action and
see its legality. Unlawful activities cannot be permitted as lawful as it is done by the executive.
Members elected by the people need to show more accountability. Appointment of public
officials should go through the scrutiny by the court on the logic that every state authority that
makes an unreasonable decision is subject to the court’s intervention and the executive action
is no exception to this rule. When the appointment of the Central Vigilance Commissioner was
challenged, the Court stipulated the need to appoint people with impeccable integrity to such
constitutional posts.15
The Court is the professional interpreter of the Constitution and statutes. Executive is the
professional implementer. These are the roles assigned in the democracy to the executive and
judiciary. It cannot be forgotten by the judges and judges shall not shy away from that
responsibility.
The test of reasonableness and its consistent application in all governmental actions will
increase public confidence. The yardstick to be applied is not the reasonableness of the judge
concerned, but reasonableness of the executive concerned. In the Advisory Opinion on coal
block allocation,16 the Court revisited reasonableness in detail in the context of article 14 of the
Constitution of India. Proportionality was also developed by the Court along with the
reasonableness test to judge the legitimacy of executive action. Both these measures are
powerful tools in the hands of the judiciary to realize their role in a democracy.

5. Judicial Responses to Terrorism

Terrorism creates tension between the pillars of democracy namely those ruling the state and
the defenders of human rights. As observed17, sometimes democracy must fight with one hand
tied behind its back. Preserving the rule of law and recognition of individual liberties constitute
an important component of its understanding of security. At the end of the day, they strengthen
its spirit and allow it to overcome its difficulties.
Managing this tension is the primary task of the legislature and executive. However, their
actions need to be justified before the Court because judiciary has the responsibility to defend
and uphold the democracy. Judicial decisions in times of war or internal conflicts or
emergencies have greater significance and for that reason judges need to be careful. Decisions
of the Supreme Court of India during the time of national emergency were subject to close
scrutiny to evaluate the role of judiciary and judges as guardians of the Constitution and

15
Centre for PIL v Union of India (2010) < www.supremecourtofindia.nic.in/outtoday/wc34810.pdf>
accessed 22 November 2014.
16
In re Special Reference No.1 of 2012 <www.supremecourtofindia.nic.in/outtoday/op27092012.pdf>
accessed 22 November 2014.
17
Barak (n.1) 148.
democracy. The Election case18 of Smt Indira Gandhi and the ADM Jabalpur decision19 were
critically evaluated by Upendra Baxi.20
Affixing a stamp of approval to an unlawful law or executive action would make the judicial
decision part of the doctrine of Constitution. It is worth quoting Lord Atkin’s minority opinion
during the Second World War:21
In England, amidst the clash of arms the laws are not silent. They may be
changed, but they speak the same language in war as in peace. It has always
been one of the pillars of freedom, one of the principles of liberty for
which…we are now fighting, that the judges…stand between the subject and
any attempted encroachments on his liberty by the executive, alert to see that
any coercive action is justified in law.
Struggle against terrorism turns our democracy into defensive democracy and even the
defensive democracy needs to retain its democratic character. The judges in a modern
democracy must remember this point while performing their judicial task. Even while fighting
the war against terrorism a democratic state acts within the framework of law and according to
the law.
Democracies fighting terror have to strike a proper balance. On the one hand it needs to protect
the security of the state and its citizens. On the other, national security shall not be a reason for
compromising democratic values and rights and liberty of the individual. Approach of the
Supreme Court of India while upholding the Armed Forces Special Powers Act 195822 or the
use of Unlawful Activities (Prevention) Act 1964 with its latest amendments to cover naxalite
operations23 is criticized for not maintaining the democratic balance.

6. Summary
To sum up, the maintenance of good democratic traditions depends on the continuance of
vibrant judiciary. A written Constitution vesting judiciary with the responsibility to guard the
Constitution and democratic spirit would secure democratic governance in the country. It is
possible through judicial review of executive and legislative actions. Judiciary has to maintain
its accountability and independence. Other branches of the Government have to guarantee
independence to judiciary. There is an ongoing process of evolving and reforming democratic

18
Indira Nehru Gandhi v Raj Narain (1975) Supp SCC 1.
19
ADM Jabalpur v Shiv Kant Shukla (1976) 2 SCC 521.
20
Upendra Baxi, The Indian Supreme Court and Its Politics, (Eastern Book Co 1980).
21
Liversidge v Anderson, 3 All ER 1941 338, 361 quoted in Barak (n 1) 150.
22
Naga People’s Movement of Human Rights v Union of India (1997) 1 SCC 682
23
Ujjwal Kumar Singh, ‘Anti-Terror Laws and Human Rights’ in Kamala Sankaran and Ujjwal Kumar
Singh( eds) Towards Legal Literacy: an Introduction to Law in India (OUP 2008) 181-97; Nandini
Sundar v State of Chattisgarh (2011) 7 SCC 547.
process in countries like India. Sunil Khilnani24 argues that India did not begin with democratic
practices. Therefore, judiciary is instrumental in the maintenance and development of
democracy. The basic structure doctrine propounded by the Court in Keshavananda Bharati25
case and holding free and fair elections as part of that doctrine 26 are part of the process of
development of democracy.

24
Sunil Khilnani, ‘ The Indian Constitution and Democracy’ in Zoya Hasan, E Sridharan and R
Sudarshan (eds) India’s Living Constitution: Ideas, Practices and Controversies (Permanent Black
2002) 64-82.
25
Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.
26
PUCL v Union of India (2013) 2 SCC 663.