Hon’ble Justice Swatantar Kumar, the respected Chief Justice of the Bombay High Court; Hon’ble Mr. Justice D. D. Sinha, Mr. Anand Jaiswal, President and Other Office Bearers and Members of the High Court Bar Association at Nagpur; Distinguished Guests; Ladies and Gentlemen:
I feel greatly honoured and privileged to have been invited to deliver the Lecture in the memory of Late N.L. Belekar, a lawyer of great eminence and a reputed social worker. Throughout his long and brilliant career as a distinguished lawyer and his very active association with the socio-political life of this great city, late Shri Belekar, made significant contributions for the progress and empowerment of the people of this area. He rendered great service to the people by his participation in several seriously contested cases of public importance, which endeared himself to the people of this city and to the legal fraternity in particular. His immense contributions for the welfare of the masses will always be remembered.
Through the Weaver’s Welfare Board that he set up, he created an effective forum to articulate and voice the concerns of the weavers, whose welfare was among his major concerns throughout his life. He effectively used the positions he occupied in the various professional and social organizations for the larger good of the people of this area, who fondly remember him with gratitude. I take this opportunity to pay my respectful homage to his everlasting memory.
I compliment the High Court Bar Association of Nagpur for organizing a Lecture Series in the memory of Late Shri Belekar, thereby providing a platform to deliberate on issues of public importance. This is a fitting tribute to one of the most eminent lawyers of the prestigious Nagpur Bar. It is in this context, and as suggested by the Bar Association, that today I have chosen to speak on, ‘The Role of Legislature and Judiciary in Protecting and Enhancing the People’s Rights in our Democracy’.
Parliamentary democracy was identified by our Founding Fathers to be the most suitable system of governance that would safeguard and protect the democratic rights of our people, who achieved freedom after centuries-long subjugation under a repressive colonial regime. They perceived that only a democratic set up based on parliamentary system would be able to solve effectively the myriad socio-economic problems that the nation faced at the time of independence and would be able to deal with our vast array of diversity on all fronts of our national existence.
Protection and promotion of the democratic rights of the people have been one of the prime objectives of our freedom struggle and our Founding Fathers took infinite care in providing for them under the system of government that they provided in our organic law, namely, our Constitution. They ensured that certain rights, which should be inalienable to all citizens, are protected against State infringement by their incorporation into the list of Rights recognized as Fundamental by our Constitution, subject to certain defined reasonable restrictions and insulated them against unauthorized infringement from any quarter. They also provided that in the protection of the rights germane to a democracy and other elaborate and constitutionally guaranteed rights of the people, all the three organs of the state, namely the Legislature, the Judiciary and the Executive would have their distinct roles to play.
As is well-known, the doctrine of separation of powers, is an inseparable part of the evolution of democracy itself. The doctrine, which provides for checks and balances amongst the organs of the State, is one of the most characteristic features of our constitutional scheme. As has been observed by the Hon’ble Chief Justice Balakrishnan, 'the Constitution lays down the structure and defines the limits and demarcates the role and function of every organ of the State including the judiciary and establishes norms for their inter-relationships, checks and balances.'
Our great leaders who framed our Constitution were able to foresee that excessive power, if vested with any of the three organs of State, could possibly lead to unwarranted situations of conflict, which could compromise the quality and content of our democracy itself. Accordingly, they visualized that all organs of the State would need to co-exist harmoniously in a joint and participatory role and with mutual respect amongst them, so that they could work in a smooth and coordinated manner in the areas demarcated for them, for the larger national weal. In our constitutional scheme, there is no exclusive primacy of any one organ nor will it have absolute power, which is anathema to democracy, as the former Chief Justice of India J.S. Verma has observed. As our Constitution ordains, it is the Parliament that enacts laws; the Executive implements them; and the Judiciary is the independent authority interpreting them. Thus, Parliament has been entrusted with the task of formulating the legislative policies and making laws to give effect to the same and it is for the Executive to enforce them.
Our Constitution-makers ensured that the rights of the people were preserved and protected effectively against any Legislative or Executive excesses. With this objective in mind, the judiciary has been conferred power to decide about the validity of the laws passed by the Parliament, apart from deciding disputes between the citizens according to the laws of the land. Our Constitutional set-up has enabled the Judiciary to set-aside not only laws passed by the Parliament but also all executive actions which are not in consonance with the rights of the citizens under our Constitution and its several provisions. The scope of judicial review is confined to see whether the impugned legislation falls within the competence of the Legislature or is consistent with the Fundamental Rights guaranteed by the Constitution and its other mandatory provisions. Our Constitution contemplates that the Courts will only interpret and scrutinize the constitutionality or validity of laws and executive action and not to decide what the law should be.
It was explicitly stated in the Constituent Assembly by many leading figures that the doctrine of judicial independence was not to enable the Judiciary to function as a kind of a ‘super Legislature’ or a ‘super Executive’. I am reminded of the wise and profound observations of Pandit Jawaharlal Nehru in the Constituent Assembly: (I quote)
“No Supreme Court and no Judiciary can stand in judgment over the sovereign will of Parliament representing the will of the entire community. If we go wrong here and there, it can point it out, but in the ultimate analysis, where the future of the community is concerned, no Judiciary can come in the way….. … ultimately the fact remains that the Legislature must be supreme and must not be interfered with by the court of law in measures of social reforms.” Unquote.
In the early years of the Republic, the Supreme Court had already recognized that the Indian Legislature had a distinctly superior position vis-à-vis the other organs of the State. The observations of the then Justice S. R. Das, who later adorned the office of the Chief Justice of India with great lustre, in the famous case of A. K. Gopalan v. State of Madras (1950 SCR 88) made it very clear and I quote:
“Although our Constitution has imposed some limitations … [it] has left our Parliament and the State Legislature supreme in their respective legislative fields. In the main, subject to limitations … our Constitution has preferred the supremacy of the Legislature to that of the Judiciary… and the Court has no authority to question the wisdom or policy of the law duly made by the appropriate Legislature … and this is a basic fact which the Court must not overlook.” (unquote).
Similarly, commenting on the nature of separation of powers delineated by our Constitution, one of our most eminent Judges, the Hon’ble Chief Justice B. K. Mukherjea, in the Supreme Court, in Ram Jawaya Kapur v. State of Punjab (AIR 1955 SC 549), observed:
“Our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.”
The obvious consideration before the Constituent Assembly was to preserve and protect the freedom and democratic rights of the people and the supremacy of the popular will in our governance structure. As the supreme representative and law-making body, the Legislature has been accorded a pre-eminent position in our political set-up. The power to make laws, its control over the nation’s purse, the Executive being made accountable to the popular House, its role in the election and impeachment of the Head of State as well as in the removal of incumbents of high constitutional offices, its constituent powers, and its powers during an emergency, testify to such pre-eminence. Yet, the Legislature must function within the confines as laid down by the Constitution.
To quote Chief Justice Verma, 'The sovereign will of the people finds expression through their chosen representatives in the Parliament … The real political executive is the Council of Ministers, which also controls the Lok Sabha, wherein lies the real legislative power. Parliament exercises political and financial control over the Executive, and there are inherent checks and balances to keep every organ within the limits of constitutional power. The grey areas are meant to be covered by healthy conventions developed on the basis of mutual respect keeping in view the common purpose to be served by the exercise of that power'.
To my mind, the preference for legislative pre-eminence in parliamentary democracy is as an offshoot of the basic postulate of constitutional supremacy. By its very representative character, in a democracy, no organ other than the Legislature is better placed to understand the people’s priorities. It is expected of the people’s representative bodies to voice people’s problems, their demands, their urges and aspirations, and, in the ultimate analysis, to protect and promote their fundamental democratic rights. The inalienable constitutional right of the Legislature to scrutinize and oversee the functioning of the Executive arise from this basic premise and it has been specifically provided that the Council of Ministers in the Centre shall be responsible to the House of People, which is the directly elected body. There are similar provisions in the Constitution which provide that the State Governments are responsible to the Legislative Assemblies in the State. The responsibility for identifying and defining people’s rights and for providing statutory sanction for them and for giving the general direction and momentum to the institutions for social engineering in our democracy has thus been thoughtfully bestowed by our Founding Fathers on our Parliament and our State Legislatures, which represent the people of India as a whole, or the States, respectively.
All institutions of governance in a democracy are expected and are indeed required to remain accountable to the people directly or indirectly. It is this notion of abiding accountability to the people which holds the key to the success and sustenance of democracy. Thus, the Legislature has been given the inalienable right to scrutinize and oversee the functioning of the Executive and can require the executive authorities to act according to the laws framed by it and the policies and programmes that have its sanction. Elaborate procedure has been laid down for the Legislature to discharge such function of enforcing the accountability of the Executive to the Legislature and thereby to the elected representatives of the people and ultimately to the people themselves.
Protection and enhancement of people’s rights in a democracy are fundamentally about their empowerment within and vis-à-vis the system. It is in creating conditions for the empowerment within the system for enabling the people to enjoy their basic democratic rights that the Legislative Wing is expected to play the most crucial role in a democracy and, conversely, it is in the safeguard and the enjoyment of those rights that the Judicial Wing has to play the vital role.
Several laws have been passed by our Parliament, over the years for protecting and enhancing the people’s rights and for prohibiting practices that are inimical to the societal development, and for the establishment of an egalitarian society. For such purposes, amendments to some of the provisions of the Constitution and the existing legislations have also been made to keep pace with the requirement of the times. Our Parliament’s initiatives, all these years, in enacting laws to bring about social change, to help provide just and humane conditions of work, to ensure maternity relief, to provide protection to women at the work place, to broaden the base of women’s participation in politics, to safeguard the vulnerable sections against social discrimination, violence and atrocities, against child marriages, to abolish the practice of dowry, for land reforms, for reducing the voting age from 21 to 18, for strengthening our Panchayati Raj Institutions, to provide a conducive environment for the development of children, to put an end to the sexual exploitation of women and their indecent representation, to protect women from domestic violence, to promote the educational and economic interests of the weaker sections of our society, including women, children and the minorities, to ensure rural employment and thereby to address rural poverty, among others, have been part of that larger scheme to empower the people within our democratic framework.
Human dignity and fundamental rights of the citizens have always been at the centre of our legislative concern, and Parliament, in effect, has worked as a catalyst of social engineering all these years. The National Human Rights Commission, the National Commission for Women, the National Commissions for Scheduled Castes and the Scheduled Tribes, the National Commissions for Minorities and the Backward Classes are all creations of our Parliament from this broad perspective.
But, there is the need to address the moot question, whether the Constitution and the various measures taken by the Parliament and the other organs of the State have been able to make a positive difference in the life of the ordinary man and woman, the scheduled castes, the scheduled tribes, the backward classes, women, children and the minorities ? Unfortunately, the enthusiasm demonstrated in making these laws has not always been matched by a commitment to fully implement them. Many of the progressive legislations, with far-reaching goals are, perhaps, not known to the potential beneficiaries. Vast majority of our citizens and specially rural men and women are apparently not aware of their constitutionally guaranteed Rights even today. The reason for most social – legislations like the National Rural Employment Guarantee Act (NREGA), Right to Information Act (RTI) and Protection of Women from Domestic Violence Act not producing the desired result is the lack of awareness about their existence and provisions among the targeted groups, in respect of which the Media can play an extremely useful and important role. The Executive branch, no doubt, has to share the major part of the responsibility for this gap between the objectives set and their poor delivery and in this sphere, an alert civil society and the media can play a vital role.
After six decades of Independence, however, it is a tragic commentary on the nature of our development that our people, more than a billion strong today, live in different centuries – islands of affluence co-existing with the scourge of poverty, backwardness, unemployment, illiteracy, lack of healthcare and basic infrastructure. Though we must applaud our substantial achievements in various fields, we should do well to recognize that the developmental deficit is a potential threat to our democratic structure.
There are also several areas where we have not yet been able to achieve as per the expectations of all sections of our people. A lot more needs to be done to address issues like women’s empowerment, greater employment opportunities, preservation and expansion of the rights of the farmers and workers, comprehensive land reforms, universal education, etc, among others. When Swaraj was declared, Gandhiji said: “as long as women of India do not take part in public life, there can be no salvation for the country.” Certainly, there are constitutional provisions for women’s empowerment and participation in the field of grass-roots level governance in the country. But it is time we went beyond that.
It is my dream to see that the proposed but much debated legislation to provide one third representation to women in our representative bodies be passed during my tenure as the Speaker, Lok Sabha. There is a tremendous groundswell of support for it and I must emphasize, the support is not only from women, but from all segments of our society. Only when women get substantive say in public affairs, will they get to enjoy their democratic rights meaningfully and their views be taken with due seriousness in all matters.
None of the civil, political, economic and social rights can be exercised by individuals unless they have received a certain minimum education. It is the primary vehicle by which the economically and socially marginalized people can lift themselves out of the mire of poverty and obtain the means to participate fully in community affairs.As Noble Laureate, Prof. Amartya Sen, aptly observed and I quote:
“When people are illiterate, their ability to understand and invoke their legal rights can be very limited, and educational neglect can also lead to other kinds of deprivation. Indeed, this tends to be a persistent problem for people at the bottom of the ladder, whose rights are often effectively alienated because of their inability to read and see what they are entitled to demand and how.” Unquote.
More vigorous efforts are required to remove the obstacles that deny children’s access to school and at the same time to address the problems that threaten their retention in and completion of schooling. As the National Knowledge Commission has suggested in its First Report, we must have appropriate legislation to implement the Fundamental Right to Education. To my mind, in spite of there being some areas in which the Parliament has not functioned very efficiently and productively, we certainly should acknowledge the significant role of our parliamentary institution in promoting, protecting, establishing and enhancing the rights of the people in our Democracy.
It is necessary that all the organs of the State see various legislations in their social contexts, keeping in mind the larger social philosophy of our Constitution and the rights of the people in a democracy. Often, we come across instances wherein the legislative intent is eroded by one or the other organ of State which is not a very healthy development. If different institutions work at cross purposes it would defeat the very object of social legislations and lead to confusion and disarray in society.
In protecting and enhancing the people’s right in a democracy, the Legislature’s role is certainly paramount. It is through effective legislative oversight that the accountability of the Executive branch to the people at large is enforced. If I may say so, the role of other organs comes only after the Legislature has identified and defined the fundamental democratic rights of the people through appropriate legislative or constituent procedures and only the legislature can propose or define the rights of the people which cannot be arrogated by others.
The framers of our Constitution also took great care to provide for an independent and impartial Judiciary as the interpreter of the Constitution and as the custodian of the rights of the citizens. Our Judiciary has earned the respect and the confidence of the people for the manner in which it has been discharging its duties and functions, particularly, its paramount function of judicial review.
The role that the Judiciary has played over the years in ensuring the Rule of Law in general and in providing socio-economic justice to the people at large has been exemplary. We have had many outstanding Judges and eminent members of the legal fraternity, who have contributed immensely towards strengthening the edifice of Rule of Law in our country. The people no doubt look up to the courts which are temples of justice, with great expectation, hope and confidence for the preservation and enforcement of their legal and constitutional rights.
However, I submit, without any disrespect, that it is not within the jurisdiction of the judiciary to make laws nor to lay down general norms of behaviour for the government or to decide upon public policy. The scope of judicial review is confined to the enquiry as to whether an impugned legislation or an executive action falls within the competence of the Legislature or of the executive authority or is consistent with the Fundamental Rights guaranteed by the Constitution or with its other mandatory provisions.
There was a lot of appreciation when our Supreme Court was pleased to hold that justice can be provided, through an innovative procedure, to the oppressed citizens, especially those belonging to the vulnerable sections of the community, who have no means, no facilities and, in fact, no possibility on their own to approach the Court even in cases of glaring injustice and discrimination, by giving a liberal meaning to the concept of locus standi, without in any way, entering into the areas preserved for the legislature or the executive.
However, of late, it is being noticed that the lines demarcating the jurisdiction of the different organs of the State are getting blurred, as a section of the Judiciary, with all respect, seems to be of the view that it has the authority by way of what is described as 'judicial activism' to exercise powers, which are earmarked by the Constitution for the Legislative or the Executive Branches.
One may point out that the Hon’ble Supreme Court has itself construed that the concept of Separation of Powers is a 'basic feature' of the Constitution. That being so, necessarily, each organ of the State has separate areas of functioning, into which no other organ can enter or intervene, unless permitted by the Constitution itself, and if it so does, it will be contrary to one of the 'basic features' of our Constitution and that includes the Judiciary also.
Our Constitution contemplates “judicial review” and not “judicial activism” which is of recent coinage and extends, as one finds, much beyond review. The Constitution does not contemplate a Super-organ nor confers an over-riding authority on any one organ. No organ has any power to superintend over the exercise of powers and functions of another, unless the Constitution strictly so mandates.
It is obvious that all organs of the State should act only according to the constitutional mandate and should not be astute to find any undisclosed source of power or authority to expand its own jurisdiction, which will give rise to avoidable conflicts and affect the harmonious functioning of the different organs of the State.
But today, there is a considerable feeling even in well-meaning quarters that we have travelled a long way from that objective. On many occasions, the Hon’ble Supreme Court itself has felt it necessary to condemn motivated and frivolous approaches to Court in the garb of Public Interest Litigation (PIL), which goes much beyond the scope of Judicial Review. By way of warning, Chief Justice Verma, in his Dr. K.L. Dubey Lecture, has drawn attention to 'the deliberate misuse of the judicial process by some vested interests to settle political scores, or to shift the responsibility to the judiciary for deciding some delicate political issue found inconvenient by the political executive for decision.'
No one can take exception to any decision in the exercise of Judicial Review (subject, of course, to the provision of review or appeal, where it lies) invalidating any law or executive action, but where it seeks to lay down some new policy to be adopted or actions to be taken and uses its supposed power to compel executive action on the same without any known authority or procedure, serious questions necessarily arise about the source of such power. Chief Justice Verma has expressed the view that 'Judicial activism should be neither judicial ad-hocism nor judicial tyranny and that while commanding performance by the concerned authority, the judiciary should not take over the function itself, as it will not be a legitimate judicial intervention, which can only be when it comes within the scope of permissible judicial review.'
The Jagadambika Pal case of 1998, involving the Uttar Pradesh Legislative Assembly and the Jharkhand Assembly case of 2005, to my mind, are two glaring examples of deviations from the clearly provided constitutional scheme of separation of powers. The Interim Order of the Supreme Court in these two cases, to my mind, upset the delicate constitutional balance between the Judiciary and the Legislature. I feel that these were instances of unfortunate intrusion by the Supreme Court into well-demarcated areas of powers of the Legislatures, contrary to the provisions of Articles 122 and 212 of the Constitution. Chief Justice Verma has recently described the orders in the U.P. and Jharkhand cases as judicial aberrations and has expressed his hope that the Supreme Court would soon correct them.
I do agree that there is some cynicism among our people about the way our institutions function, particularly the Parliament and the Executive. Many a time the judiciary is applauded for its interventions in forcing the arm of the Executive to do certain things or in restraining it from doing certain things. People appreciate it, at least, that is what the media reports. Criticisms of the Executive and Legislatures, from time to time, have been made from the Bench in very strong words while hearing what are described as Public Interest Litigations (PIL).
In my humble view, the contention that the judiciary should take on itself the onerous responsibility of the governance of the country, in matters, which the Constitution has imposed on either the Executive or Legislature, has serious implications.
Administration of justice derives its strength only from the confidence of the people in the system. The loss of that confidence can lead to instability and threaten the very edifice of democracy. The most important way in which the judiciary can maintain the people’s confidence is by providing speedy and effective justice to them.
People’s rights can be effectively protected if they are able to approach the court and have their matters taken up by competent lawyers at affordable costs and have their cases disposed of within a reasonable time. Delay in trial by itself constitutes denial of justice. The right to speedy disposal of cases is as an essential right of the people in a democracy. The slow movement of the judicial process, the mounting arrears of cases and the lack of easy affordability and accessibility to the legal process are some of the major concerns our people have vis-à-vis the Judiciary today. The Judiciary will become strong only when it identifies itself with the deprived and the disadvantaged and when the latter begin to see the court as an easily accessible institution and as a bulwark against injustices and oppression. I am told that there are over three crores of pending cases with various Courts in the country, some of them for periods ranging from 5, 10 or 20 years. To many even now the Court continues to be inaccessible and justice remains elusive to large sections because of its delays, high cost and procedural complexities. It is important to ensure that justice is not denied to any citizen by reason of economic or any other disabilities.
There is a clear perception in our society and as it seems to be that the best legal services are available only to the affluent and due access to the doors of justice is denied to the poor and the socially disadvantaged. The biggest challenge before the Judicial System in the country today is that of ensuring that everybody has affordable access to justice and an assurance that everyone gets equal treatment before the law.
The delay in our criminal justice system is particularly of gravest concern and there is a growing feeling among the people that dispensation of justice can be affected or frustrated by people of means and of questionable integrity. Some solutions are sought to be found by setting up Fast Track Courts or by adoption of Alternate disputes redressal machinery but in my humble experience, to these efforts the resistance has come more from within the legal fraternity than otherwise. Very recently, the Learned Chief Justice of India has been pleased to announce that 7000 additional courts were being set up with the appointment of new Judges across the country, as has been reported in the media. These courts which will be in the level of Subordinate Courts, hopefully, when set up will considerably reduce the arrears.
If I may submit, the responsibility for managing public affairs should be well left to those on whom the Constitution has imposed such obligation and for which, in the ultimate analysis, they are accountable to the people. This accountability is what differentiates democracy from other systems of governance. Discharge of executive responsibilities by any other authority, howsoever highly placed, but non-accountable, is anathema in a democracy. There should be no assumption that any particular organ has any inherent superiority or a monopoly over concern for the people or that it alone can solve their problems. I believe that activism of any institution has to be, first and foremost, directed to the due discharge of its own basic and fundamental duties.
I humbly submit that for any organ or authority under the Constitution, to enjoy any power, not specifically or by clear implication conferred by the Constitution, the source of power is or can be only the Parliament and no other authority. As has been held, the Supreme Court can declare the law and cannot enact law.
Almost all votaries of judicial activism, including the Hon’ble Judges themselves, while exercising power in such assumed jurisdiction justify it on the supposed failure of the legislature or the executive authorities in taking proper action to mitigate the people’s grievances or to find solutions to people’s problems.
But with regard to dispensation of justice, how many ordinary citizens of the country, who are oppressed and subjected to various forms of discrimination and denial of rights, particularly women who are victims of torture and exploitation, can have access to the courts, specially the highest court of our country, if he or she needs to approach the courts or contest effectively proceedings initiated against them? How many dismissed employees, how many victimized teachers, how many senior citizens, how many disadvantaged people staying in far flung areas of the country, who would need to seek justice, can approach the Apex Court of our country? The geographical distance, prohibitive cost of litigation, inordinately long time taken for disposal of matters, discourage or otherwise make it impossible for ordinary litigants to approach the Court. The situation should disturb the nation’s conscience, and if I may say so, it is for the Judiciary to find ways and means to make the Temples of Justice easily accessible to the common people.
As the eminent jurist late M.C. Chagla stated : “If sections of the society are deprived of the benefits of law and are treated as second class citizens, or if the law does not protect the liberty of the individual, then it would be meaningless to say that the rule of law prevails”.
I must confess that I am a strong votary of setting up Circuit Benches of our Apex Court at least in the three other metropolitan cities and of suitable number of Benches of the State High Courts at appropriate places in the States concerned. But some sections systematically resist such proposals. The reason cited for opposing such pro-people reforms is that such Benches would affect the integrity and unitary character of the Court and would lead to unsettled jurisdiction. To my mind, these reasons are unconvincing and seen from the angle of the magnitude of the problems and of arrears, the advantages to the people would far outweigh the perceived difficulties.
Sustenance of a vibrant parliamentary democracy all these years, no doubt, has been one of our most significant achievements of the first six decades of our freedom. Our poor economic conditions, low literacy, the hierarchical social structure, multiple ethnic, religious and linguistic cleavages, were all potent factors that could have inhibited the process of democratic consolidation in India. But proving the skeptics wrong, we have come a long way and today India’s experiments with democratic governance have received universal recognition and our hugely multi-cultural society is seen as an example for those struggling to cope with the complexities of race, religion, language and culture. No doubt, it is our representative institutions that have contributed the most to the consolidation and strengthening of democracy in the country. I believe that the Parliament has discharged its function of safeguarding people’s rights and charting out the path of social engineering with the utmost sense of responsibility and in the process, earning admiration and respect of the people.
However, the competitive and confrontational politics that we are experiencing today is considerably weakening the foundation of our democratic system. There is a growing perception among some sections of our people, particularly the youth, that democratic institutions are not functioning as they should. Debates and discussions, the hallmarks of democracy, are being over-shadowed by disruptions, confrontation and other non-democratic alternatives. Corruption is eating at the vitals of our country. The health of the institutions that are supposed to guide the affairs of the nation and take it forward towards a better future is increasingly becoming a matter of concern today for the conscientious sections of the society.
Most unfortunately, there are also allegation of corruption in our justice-delivery system which is a very disturbing phenomenon. Judicial corruption is dangerous for the polity, probably more serious than corruption in other organs of the government. One of our former Chief Justices, (Justice S. P. Bharucha) is reported to have conceded that at best only 20 per cent of judicial officials could be corrupt. It is not a small figure to be ignored and if one in every five judges is corrupt, our judicial system calls for a thorough overhauling. Otherwise, our people will lose all their faith in the system. What is even more appalling is the Chief Justice’s expression of helplessness in dealing with the menace due to the perceived absence of disciplinary power with the Supreme Court in dealing with the undesirable elements within our higher judicial set up. It is too serious a matter to be overlooked for the health of our entire socio-political system as a whole. Justice Krishna Iyer aptly summarized the creeping malady of the judicial system when he said: I quote him:
“As we look around, corruption, ambition, callousness, craze for position, promotion and five-star craving plus graft, nepotism and other vices are infiltrating into the hallowed place of justice, justices and justicing. This affluenza craze and passion for tax-free perks are creeping into court culture. … . The few are no longer few and are enough in numbers and deeds to debunk the credibility and liquidate the sublimity of the judiciary.” (Unquote.)
We need to introspect and see how and why these developments, unacceptable to the people, are taking place and address the cause with all sincerity. We must recognize that democracy is not all about periodic elections and the political rights alone. It is fundamentally about providing for the basic needs of the people. Our failures on several fronts have resulted in depriving substantial sections of our people of the benefit of a healthy and dignified existence. With a stratified social structure, characterized by inequity, gender-based discrimination, lopsided development, regional imbalances, with a sizeable section living below the poverty line experiencing unemployment and under employment, and with substantial sections of our people denied of the benefits of modern science and technology, without access to safe drinking water and dependable energy supply, and good health-care, we have to concede that we have not been able to provide for our people’s entitlements taking full advantage of democratic governance in the past six decades.
Most unfortunately and rather alarmingly, issues like intolerance, divisiveness, corruption, confrontations and disrespect for dissent are increasingly vitiating our socio-political system. The cynicism that is creeping into the minds of the people, specially the youth, about the functions of our democratic structure is undoubtedly a matter of grave concern. The greatest challenge of good governance is to bridge the gap between the expectations of the people and the effectiveness of the delivery mechanisms. To my mind, we have to create a culture of commitment to democracy as our Constitution delineates and to democratic values such as equality, justice, freedom, concern for others’ well being, secularism, respect for human dignity and rights.
Parliamentary democracy can become meaningful for the people only when all our institutions that constitute our governance structure perform at their best keeping the interest of the people and the country in mind and in conformity with the fundamental law of the land, our Constitution. The Executive has to be seen to be functioning to address the concerns of the people, the Legislature reflecting the urges and aspirations of the people and the larger national causes as opposed to narrow partisan politics and the Judiciary, as an independent arbiter, dispensing speedy and inexpensive justice to every section of the people. We need to take effective steps to facilitate access to the higher Judiciary for the common people.
All our citizens have to get to feel that the Constitutional authorities exist to serve them and that they are ultimately accountable to them. We must recognize that there is a symbiotic relationship between institutions of the State. If we do anything that could weaken one, its adverse consequences will be felt by the entire system. Unlike those representing the other institutions, the Legislators’ accountability to the people is real and they are made to answer for their omissions and commissions every time they seek the mandate of the people. Today what is important is for all stake-holders to work unitedly with dedication, commitment, cooperation and self-discipline to find lasting solutions to the people’s problems so that we can safeguard parliamentary democracy from the strains that it is experiencing and further consolidate it in the coming years.
The people identify themselves with the political system only through the institutions of our democracy. Sustaining the credibility of democratic processes and institutions is the collective responsibility of all institutions. None of them should work at cross-purpose or in a manner contributing to the other organs to be perceived by the people as defunct, irrelevant impotent or suspect. The fact that today the people are increasingly becoming aware of their rights as also the obligations of the institutions of governance towards them, should sensitize those institutions to improve the quality of delivery.
Ultimately, what is important is that all constitutional entities, be it the Legislature, or the Executive or the Judiciary, ever remain sensitive both to the Constitution that created them as also to the hopes and aspirations of the people for safeguarding whose interest and rights they are created. While considering the respective role and relevance of two of the fundamental organs of governance in a democracy, the Legislature and the Judiciary, we have to weigh them against this yardstick. As we all would recognize, in a democracy, the biggest safeguard against, arbitrary exercise of power by people’s institutions is the vigilance of the people themselves.
Friends, democracy and people’s rights are interdependent and inseparable. The goal of democracy is achieved not only through the institutions and laws but also through the actual practice of democratic principles, norms, standards and values which should be measured by the degree to which they are actually implemented and the extent to which they advance the realization of people’s rights. All organs of the State must, therefore, strive to protect the rights and interests of everybody without any discrimination, especially the rights and interests of the disadvantaged and vulnerable groups of the society, according to their constitutional obligations failing which the very edifice of democracy may collapse.
Before I conclude, I would like to once again thank the Nagpur High Court Bar Association for according me this opportunity to share with this august gathering some of my views on some very sensitive and topical issues. I wish them all success in their endeavours towards the furtherance of the lofty ideals and values for which Late Shri N.L. Belekar lived.