Judiciary is the one of the three pillars of Indian democracy. The other two pillars are the legislative and the executive. Judiciary is also the final arbitrator of Indian constitutional arrangement. It functions as the guardian of fundamental rights as well as conscience keeper of normative values that are allocated by the state. After the French Revolution, the demand for democratic form of government has increased substantially. Through freedom struggles, many states established democracy.

India adopted for a democratic form of government with a written Constitution and welfare nature of state. Montesquieu, in his book 'The Spirit of Laws’ (1748), postulated that concentration of power in one person or a group of persons results in tyranny. Role of judiciary becomes important in this aspect to protect a democracy from tyranny and establish a rule of law. It keeps a check on arbitrary actions of the government of the day.

21^st Century: An Age of Judicial Governance

In 21st century, role of judiciary is not only limited to interpretation but it is seen as a tool for good governance and promoting democracy. Judicial governance allows judges to adjudicate in favour of a progressive society through social engineering. For example, Supreme Court of India adopted the polluter pays principle for environment conservation. It leads to sustainable development with the judicial use of natural resources.

Apart from environment, it provides a system of checks and balances for the other organs of the government. For example, to bring objectivity, Supreme Court of India laid conditions for the imposition of Governor Rule in states in S.R. Bommai Case. Some issues demand different perspective and care which cannot be explicitly derived from Constitution. For example, Triple talaq case and Sabarimala case judgements ensured equality and women empowerment.

During COVID-19 pandemic, Delhi High Court even issued a contempt notice to the Centre on the oxygen issue. Court played its role in micro-management of pandemic, fixing oxygen quota and distribution. Similarly, the Uttarakhand High Court pulled up the state government for allowing the Kumbh Mela to go ahead against scientific advice and not following standard operating procedures. According to a study, there is direct correlation between judiciary and economic growth. Thus, judicial governance becomes imperative in democracies.

Constitutional Safety for Democratic Governance

In the words of Abraham Lincoln, democracy is a government "of the people, by the people, and for the people." Functional democracy has traits of electing the government peacefully and removed by the people through free and fair electoral system. Here, judiciary plays an important role in ensuring free and fair election in India. In this regard, Supreme Court took report of Association for Democratic Reforms (ADR) report into considerations which claims that 43% of the elected MPs in 2019 general election are from criminal background.

Consequently, Supreme Court ordered parties to publish criminal history of their candidates for Assembly and Lok Sabha elections along with the reasons for fielding suspected criminals over decent people. In 2017, the Supreme Court of India asked the central government to decriminalise politics by setting up special courts to exclusively try pending criminal cases against politicians in a time-bound manner. Similarly, Supreme Court recognised negative voting as a constitutional right of a voter and directed the Government to provide the ‘NOTA’ option in electronic voting machines.

The declining quality of parliamentary debates, increasing absenteeism, and low retention rate (only 35% of the MPs were able to retain their seats in general election of 2019) of peoples’ representatives, according to ADR report, show the decline of parliamentary democracy. Thus, judiciary has often intervened in matters of legislation through judicial activism by guiding the Parliament.

For example, Vishakha guidelines were stipulated by Supreme Court regarding sexual harassment at workplace. Later, Parliament legalized those guidelines through the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Thus, it fills the void created by the legislature.

Protection of Weaker and Vulnerable Sections

Thomas Reid says that “A chain is as strong as its weakest link.” It indicates the significance of weaker sections in society. It other words, the strength of a chain is limited to that of the weakest link in the chain. Protection of weaker sections like women, children, minorities, transgenders, and elderly people show the maturity of democracy in a country. It is the judiciary which protects the interests of the weaker sections. For example, NALSA Judgement asks for social justice through affirmative actions for transgender people.

During COVID-19 pandemic, it is the judiciary which ordered to fix “minimum” ex gratia of Rs 1 crore for every official who succumbed to the pandemic because of panchayat election duty. To protect the interest of poor people, Kerala High Court ordered a ceiling on charges in private hospitals for COVID-19 treatment. In Indira Sawhney case, Supreme Court upheld the social justice given to OBC community through affirmative action. Similarly, in Rohingya case, Supreme Court mandated that Rohingya shall not be deported until procedure is followed.

Cog in the Wheel of Progress: Challenges

Judicial governance is often criticized as violation of separation of powers under Article 50 of Indian Constitution. Article 50 states that 'The State shall take steps to separate the judiciary from the executive in the public services of the State.' In Ram Jawaya case (1955), the court observed: “Our Constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another.” It implies that there should be a broad separation of powers among the three organs of the government.

In Deoki Nandan Aggarwal case (1991), the court state that the power to legislate has not been conferred on the courts. It is also claimed that judicial governance is against the principle of judicial restraints. It encourages judges to limit the exercise of their own power. Even the appointment process of the judiciary is criticized as anti-democratic. Even Dr. Ambedkar was not in the favour of collegium system where a judge chooses a judge. It is also criticized as a paradox when a group of unelected people is limiting the power of the government.

Apart from these, unlike the administrative authorities, the courts don’t have expertise in the field of administration. For example, Supreme Court ordered to ban the registration of BS-IV vehicles after April 2020. It lacks the proper assessment of economic viability of this order which may hamper India's growth. The courts also lack the machinery to deal with highly sensitive and technical issues. Excessive critical observation of the court demoralizes the honest and dutiful officials and it is against the inclusiveness in democracy. Unnecessary jumping into other's domain waste court's valuable time followed by increase in pending cases.

However, through the doctrine of basic structure, Supreme Court of India has established constitutional government in true sense by protecting basic ethos of the Constitution. To conclude, quoting Lord Bryce, “There is no better test of the excellence of a government than the efficiency and independence of its judicial system.” It means an independent, impartial and effective judiciary is an indicator of excellence of a thriving democracy.