1

Role of a Judiciary in a Constitutional Democracy

Ayush Jaiswal*

Introduction
Constitutional

Democracy-

as

defined

by

the

dictionary

is

a system of government based on popular sovereignty in which structures, powers, and limits
of government are set forth in a constitution.1 Judge has been defined by the Oxford
dictionary is an officer with authority to decide cases in law court. 2 Judges, all over the world
function as impartial and independent umpires bringing meaningful judicial order and
justice in the society.3Though the main task of the judge is to decide cases and administer
justice, but the role that he plays varies from system to system; since India is a constitutional
Democracy, Judge has a major role to play while deciding cases. The Indian democracy has
been divided into three independent watertight organs viz. executive, legislature and
judiciary. All these organs have distinct roles and derive their authority from the constitution.
The executive implements policies of the government, the legislature legislates laws
according to dynamics of the society and create livelihood for the equals and the judiciary
has been bestowed with the power to protect their (peoples) rights. Since the power of the
other two organs i.e. Legislature and Executive are wider, there are chances of people being
harmed. Whenever issues relating to crime committed or in case of disagreement among
people, one can approach to the court and seek interference of judges not only to protect their
rights and privileges but also to punish the offenders. It is worth mentioning here, though the
judge has the power to award punishment to the criminals, such power is neither unrestricted
nor can be used arbitrarily; there is a defined ambit within which a judge has to act and use of
his authority can also be questioned in higher courts. This is a unique feature of our
1*Student, Semester V, Damodaram Sanjivayya National Law University, Visakhapatnam, A.P.
http://dictionary.reference.com/browse/constitutional+democracy (accessed on 03-11-2014)

2 Judge Def. 1 Oxford Advanced Learners Dictionary, 1997, Print

3 Rao G.M., Reddy G.B., Rao V. Geeta, Judiciary in India Constitutional Perspective, Asia Law
House, 1st Edition, 2009, Role of Judge in the Judicial System of India-An analysis of recent trends,
Dr. C. Nirmala, P. 400

constitutional democracy while in other systems like the autocratic system, the king himself
is the judge and his authority cannot be questioned. Apart from this, doctrine of judicial
review also confers on the courts, the power to rule on the legislative as well as
administrative actions.4 In this paper these functions and powers of a judge are being
discussed.
Hypothesis
The judiciary has been instrumental in ensuring justice to all. There have been instances
wherein the judiciary brought in certain new principles and also gave liberal interpretation to
laws to ensure the same. As we know that India has adopted the adversarial legal system, it
can be said on basis of many decided cases that judiciary has been playing a vital role in
safeguarding the Indian Democracy.
Objectives

To identify the role of judges in the Indian Democracy.

To analyse certain decided cases.

Research Methodology
The research methodology requires collection of relevant information through non-empirical
research.
Delivery of Justice
Law, Liberty, Equality oriented legal processes are means to achieve the end; i.e. Justice. As
pointed out by Maitland, a judge is not expected to behave like a machine but a thoughtful
and skilled artist, who processes law in his anxiety to do justice. 5 However, justice is not
something that can be achieved by applying one formula to all cases. As morals and ethics
play a vital role in administering justice, each case is to be decided in a way so that equality is
ensured in diversity. This is done by a judge to settle a disagreement to ensure just allocations
of advantages and disadvantages, preventing the abuse of power and preventing the abuse of
liberty. The legislations, precedents and customs guide the judiciary in this process. It is
4 http://www.supremecourtofindia.nic.in/speeches/speeches_2009/judicial_activism_tcd_dublin_1410-09.pdf (Last accessed- 01-11-2014)
5 C.K. Allen Law in the making, Oxford University Press, 7th Edition, 1967, P. 397

worth noticing that the Laws enacted by the parliament and state legislatures are finally and
authoritatively interpreted by the court. Our constitution envisages the Judiciary as the final
arbitrator of the constitution, as the guardian of freedom and liberty, and as a citadel against
administrative excess.6 There is virtually no area of constitutional, legislative or executive
activity which is beyond the courts scrutiny.7
Formation, Interpretation and Review of Laws
Article 141 of the constitution empowers the Supreme Court to declare a law, which shall be
binding on all courts within the territory of India. This can be in the form of a judgment or by
the way of wider or narrower interpretation given by the judges to a law. Complete
prohibition by the Supreme Court on use of tinted glass in windows of vehicles, though
permitted by the Central Motor Vehicles Rules subject to a maximum limit of 30% 8 is an
example of how the judiciary interprets law to mould it to a new shape. The guidelines for
arrest laid down in the DK Basu v. State of West Bengal, 9 The Vishakha Guidelines,10 the
provision for not amending the basic structure of the constitution are other examples.
Apart from this, the lower courts are also bound to follow the judgment laid down by
a higher court, which is referred to as precedent. The application of precedent by judges is the
main mechanism whereby judges make law. Occasionally, judges are called upon to give a
ruling or make a decision when confronted with a condition for which there appears to be no
precedent or any directorial rule. In these circumstances, judges can be said to be articulating
original precedent. Thus, it is the judges role to use his own discretion concerning what rules
he thinks need to be applied, changed, improved, or abolished whenever an issue is brought
before the court and the law is silent or is inadequate to ensure justice.11
6 L. Chandra Kumar v. Union of India, AIR 1997 SC 1125
7 Godbole Madhav,The Judiciary and Governance in India, Rupa Co., 2 nd Edition, 2009, P. 24
8http://indiatoday.intoday.in/story/delhi-sc-ban-on-tinted-black-film-car-glass-may-4/1/186536.html
(Last accessed- 01-11-2014)
9 AIR 1997 SC 610
10 Vishakha and others v. State of Rajasthan (AIR 1997 SC 3011)
11 http://www.legalserviceindia.com/articles/juju.htm (accessed on 01-11-2014)

Another distinguishing feature is of the doctrine of judicial review, which was propounded by
the case of William Marbury v James Madison.12 This doctrine confers on the courts, the
power to rule on the legislative as well as administrative actions. 13 In this context, the then
Chief Justice Patanjali Shastri rightly said Judicial review is undertaken by the courts not
out of any desire to tilt at legislative authority in a crusaders spirit but in discharge of a duty
plainly laid upon them by constitution.14 The courts are empowered to review and either
strike down a law on the ground of unconstitutionality or uphold legislation or a part thereof
as constitutional. The latter lends legitimacy to the law. Thus, both legitimating function and
checking function are implicit in the power of judicial review.15 It is worth mentioning that
this power cannot be taken away from the courts by Parliament even by amending the
constitution.16
Rendering Advisory Opinion
Article 143 of the Indian Constitution pertains to power of the President to consult the
Supreme Court in case if question of law or of fact has arisen or is likely to arise, which is of
such nature and of such public importance that it is expedient to obtain the opinion of the
Supreme Court upon it. As on 2009, the President had made 11 references under this Article
to the Supreme Court.17 The President however is not bound to act in accordance with
opinion of the Court. It is pertinent to mention here that the Supreme Court is also entitled to
decline to answer a question posed under this Article, but it must give reasons for the same.18

12 http://www.history.com/this-day-in-history/marbury-v-madison-establishes-judicial-review
(accessed on 2-11-14)
13 Supra note 4
14 State of Madras v. V.G. Rao, 1952 SCR 597
15 Supra Note 3, Judiciary in Indian: Constitutional Perspectives Key Note Address by Justice
M.N. Rao, P. 35
16 L. Chandra Kumar v. Union of India 1997 (3) SCC 261
17 Supra Note 7, P. 37
18 Ibid

Conclusion
As noticed in the above, it can be said that a judge plays a major role in safeguarding the
democracy. He, in a way is guardian of the constitution and is empowered to settle disputes
among people. Apart from this, he also renders opinion to the president, reviews, interprets
and forms laws to ensure justice is delivered. Though the main task of the judge is to deliver
justice, there have been instances where the judiciary stepped out of the ambit and sadly
subjected people to injustice; one such being the case of Bhopal Gas tragedy. Also, in the MC
Mehta Case,19 the Supreme Court played the role of executive by asking the concerned
authorities to submit day-to-day account of progress of work of cleaning of the river Ganga.
Apart from this, there have been instances where judiciary refrained from intervening and
protecting the democracy. In the ADM Jabalpur case, 20 the Court, during emergency didnt
play the role to safeguard democracy.

19 M.C. Mehta v. Union of India 1988 SCC (1) 471

20 ADM Jabalpur v S.S. Shukla 1976 SCC (2) 521

In addition, the process of appointment of judges has also been in cross hairs; the
reason being, the heads of legislature and executive are appointed by the people while they
hardly have any role to play in appointment of judges.
If the above mentioned suggestions/ findings are looked into, it can be concluded that
the day is not so far, when ours can actually be called the best judicial system of the world