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Author: Mohd Malik Chauhan, III year of B.A.,LL.B.(Hons.) from Jamia Millia Islamia

India took birth after going through an arduous journey of fighting with rapacious colonialism. Britishers sabotaged every dint of material resources India had so it was an uphill task before freedom fighters to devise a mechanism that could ensure the welfare of the people and uplift them from the abyss of poverty, illiteracy etc. They had construed numerous systems of the world working at that time and found constitutional democracy as the plausible system to work in the Indian environment. Constitutionalism was the first choice of the farmers of the Constitution because they had seen the wantonness of the rulers taking decisions arbitrarily causing irreparable damage to the fabric of the society, therefore, the concept of limited government was in their mind which will curb the hyperbolic decisions taken under the guise of governing people.

The Constitution envisaged three organs of state in the form of the legislature, executive and judiciary. Every organ had its work to do while at the same time respecting the norms laid down by the Constitution. It’s in this background we have to understand the importance of checks and balances incorporated in our Constitution in stymieing the majoritarian tendencies from taking their neck out.

Judiciary has been accorded a pivotal position in our constitutional scheme where it has to checkmate the arbitrary decisions taken by the executive or to ascertain whether laws passed by the parliament or state legislative assemblies conform with the Constitution if they are found to be in contravention of the Constitution then the judiciary has the power to strike down to entire law. Giving such a grand responsibility to the judiciary was a bold move considering judges securing office without election thereby led to the conclusion by some ministers in the government when it struck down the NJAC as the tyranny of the unelected. We have to assess whether the judiciary has been vindicated in its responsibility given to it by the Constitution.

Some rights are very sacramentally to ensure the dignity of every individual living in this country without which it’s impossible to expect from the people at the helm to respect the dignity of the individual. These rights have been incorporated under part III of the constitution in the form of fundamental rights. They are enforceable in the court of law meaning that if any of these rights are violated by the state, people are empowered to approach the judiciary to remedy the wrongs done by the state. The Supreme Court is empowered to issue 6 writs to enforce these rights if they are violated by the state while the same power although broader than the SC has been given to the high courts also. There is an option available for people in case they feel unconvinced by the decisions of the lower courts they can approach the higher courts to seek the overturning of the decisions of the lower courts.

Incipient Stage

When India got independence it was an uphill task to ensure that the country doesn’t fall into an abyss of anarchy that had happened in innumerable countries after they adopted democracy as a viable option. India's Supreme Court approach, in the beginning, couldn’t be called a pro-liberty approach because of its narrow interpretation given to the questions related to the fundamental rights like in case of AK Gopalan, the question was simply to test the constitutionality of the preventive detention law under which a person could have been arrested if the administration had apprehensions of him being indulged in criminal activities. Even though a person hasn’t committed any offence still he could be detained which was quite an anomaly in a functioning constitutional democracy. The accused challenged the concerned law on the touchstone of article 14,19 and 21. He argued that his fundamental right to move has been violated by the state. The court rejected his contention by opining that he has been arrested under preventive detention law which has duly been passed by the parliament and a proper mechanism is there as to further the detention of future dangers, therefore, it can’t be said that he has been detained illegally and it further held which reflects it is against liberty stance it took that this law cannot be tested on the touchstone of articles other than 21 which has been complied with by the parliament by enacting a law. As Gautam Bhatia puts it the court followed the Silos theory meaning thereby the court considered every fundamental right a complete code in itself, therefore, they cannot be read together to apply them on the law passed by the parliament to check the constitutionality.

The court further took the same route by holding that the parliament has power even to amend the Constitution and that not being a law under article 13 of the Constitution cannot be challenged in the Court of law(Sajjan Singh case). The Court took us into further darkness by not rising to the occasion when it was needed the most during the time of emergency. The Court succumbed to the pressure of authoritarian tendencies developing in the country by saying that it can’t even accept the plea of habeas corpus.

Since all rights are suspended once the call for an emergency is taken but here the Court forgot to remember its duties with which it had been established which is to inhibit the other two organs of the state from taking decisions wantonly (Shivkant Shukla case).

Some commentators have even opined that the constitution is an elite consensus which did not take into consideration the aspirations of the people; therefore, they have to understand what is in there that will help in emancipating them from their misery. As Rohit De in his book A People's Constitution has described beautifully how ordinary people petitioned the court for restoring their fundamental rights which alleged to have been snatched away by the state. The people were not aware of what was transpiring in the constituent assembly, therefore, approaching the court was their first interaction with the state that helped in understanding more clearly the importance of the constitution to these common people. But such optimism goes in vain when we see the pusillanimity shown by the court in front of the executive that is hell-bent to scuttle every safeguard provided under the constitution.

The role of the judiciary becomes more important when we see it in the light of the election system we have adopted in which the candidate obtained the highest votes would be declared victorious. It is this which catapulted the Indira government to secure a majority that was enough to overhaul every part of the constitution because only 2/3 majority was required to pass any law the advantage of which had been taken by the Indira government in passing the most controversial 42nd amendment. Curiously, the judiciary which had to stop this rumbling juggernaut from swallowing the entire constitution succumbed to the whims and fancies of the government. This period is considered as the dark period in judicial history.

After facing backlash for retreating when it was needed the most, the judiciary particularly the supreme court manned by the judges who had socialist-leaning such as j. Krishna Iyer and P.N. Bhagwati who made every effort to rectify what their predecessors had done to the prestige of the court as a sentinel on qui vive.It is in this spree to restore the lost prestige the court eased the doctrine of locus standi thereby helping all public-spirited people to approach the court to give justice who had no means to approach the same.J. Iyer even went to the extent of saying that the court must wipe out every tear from the eyes of downtrodden. Police torture had become a norm because of officers not conversant with the law inexistent which almost trampled upon all the safeguards provided by the constitution, they were busy in compelling the accused to make confessions by considering them as subhuman who had no existence of their own what might be called as an object to be mastered in by the subject if we see it in Hegelian terms. This callous attitude of the police compelled the court to lambast the use of such grotesque methods on individuals who were yet to be convicted for the crime alleged to have been committed and issued guidelines to be followed strictly[DK BASU CASE]. This period can also be termed as a golden period for another reason which was quite essential for the judiciary to be seen as the protector of the people. Here first time the court institutionalized the doctrine of basic structure which was pronounced in the most celebrated judgement in the annals of the court history that is the Kesavananda Bharati case. Although the court had applied this doctrine in declaring the election of Indira Gandhi unconstitutional [RAJ NARAIN CASE]. It was in the Minerva Mill case that the court struck down most of the provisions of the 42nd amendment based on the limit set by the court on the parliament to amend the constitution. The BSD has become an amorphous doctrine which encompasses almost every part of the constitution because the court has not outlined the scope of this doctrine thereby possessing itself all the power of defining what will be the BSD from time to time as the cases come before it challenging the law passed by the parliament based on the violation of this doctrine.

Recent trends have been pointing towards the debilitation through which the judiciary is going through. Demonstrating antipathy towards government on policies that have pernicious effects on people, especially vulnerable people who have no wherewithal to challenge the might of the state is the bedrock of any healthy democracy. For instance, when protests were broke out in wake of controversial amendments brought in by the government for fast-tracking the citizenship to people who are persecuted based on their religion in three countries, the state behave repressively to quell any form of dissent and numerous people were killed and incarcerated on bogus charges. The most disturbing fact was that the judiciary abnegated its responsibility completely by deferring the matter which is of such a magnitude that has potential to emasculate the entire edifice of the constitution. People were put behind bars by imposing specious charges of Unlawful Activities Prevention Act[UAPA] that have no efficacy even to stand the formal scrutiny of the judiciary.

But the judiciary succumbed to the trope of national security used by the state to shut the tenable voices of the people thereby helping in scuttling the very basic protection accrued to the people under the criminal justice system. There is a judgement of the apex court that almost made our country a failed state because of setting a high threshold for obtaining bail. What this judgement did is that it precluded the scrutiny of the evidence submitted by the police before the court at the stage of applying bail meaning thereby once the provisions of the anti-terrorist acts are foisted, the accused will have to remain in jail until he is acquitted by the court after the completion of the trial [ZAHOOR AHMED WATALI CASE]. It has transmogrified the very basic principle of criminal justice from you are innocent until proven guilty to you are guilty until proven innocent.


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