Democracy is a political philosophy for good governance recognizing the dignity of the

individual. It is no doubt the highest form of political organization that human societies have
evolved over the years. Despite its inherent weaknesses and acquired organizational
distortions, the democratic form of government continues to appeal to the popular mind
everywhere. There is no alternative form credible enough to warrant attention today.
Nevertheless, the dangers to democratic governance are many and varied. They are as real
and imminent as in the past when feudal authoritarian regimes prevailed in many parts of the
world. The reasons for this apparently paradoxical situation are different in different
countries, although some of them are common across cultures and political boundaries. For
most parts of the developing world, the challenge is from the pervasive poverty and attendant
inequalities and injustices. Political freedom without economic and social justice, Dr.
Ambedkar contended, is hollow and unsustainable. The dilemma before countries like India
is how to overcome the problems of poverty while keeping democratic values and
commitment to human rights. In brief, access to justice is the key and the sine qua non for
democratic survival for newly independent countries long subjugated under feudal and
colonial regimes. Access to Justice: Key to Democratic Survival Access to the justice
dimension of democratic organization can be examined at different levels. From the political
angle, although adult franchise has technically brought about the democratic form, it has not
accomplished the spirit of participatory government which ultimately is what democracy is
all about. The reform of electoral laws and the devolution of power to grassroots level
democratic organizations are expected to make a difference in political democracy in the
country. The present trend towards fixing quotas for women and weaker sections of society in
elected bodies from the village to the parliament level will hopefully make participatory
governance in political terms more meaningful to marginalized sections of Indian society. At
the social level, democracy succeeds to the extent of social integration achieved. India has
been a greatly divided society in terms of caste hierarchies ' Governor of Tamil Nadu State,
former Supreme Court Judge, Madras (India) 31 THE JUDICIARY IN DEMOCRATIC
GOVERNANCE and narrow loyalties of language and regional sub-cultures. Nevertheless, it
is the level of tolerance and peaceful co-existence displayed in abundant measure in the
Indian psyche which made it possible for several religions to come to India and take roots in
its soil. Indians take pride in their culture characterized by the axiom "unity in diversity".
Indeed, it is a matter of sheer amazement and disbelief to many foreigners to find India
prospering in its democratic path despite the vast differences which are seemingly
irreconcilable and often explosive. The partition of the country on the basis of religion did
create deep cleavages in the population. Yet a substantial portion of Muslims, who today
represent more than the total population of Pakistan, preferred to stay in Hindu-dominant
India rather than to settle in the Islamic Republic of Pakistan. There is a clear message in this
historical fact of Hindu-Muslim understanding which characterizes the Indian vision of
secularism. Of course, no country is free from communal conflicts. What is to be looked at in
terms of the democratic prospects is the totality of the situation. Politics can be dirty when
parties fight each other to get people's support. When there is freedom and liberty to canvass
your point of view and propagate your religious faith and belief, it is possible to envisage
situations in which religion gets mixed up with politics. The issue to be seen is the
methodology of containing and managing such conflicts. To the extent that rationality
prevails and the government of the day observes constitutional neutrality, one can argue that
there is no danger to the pluralist texture and democratic spirit of the policy. An objective
observer of the Indian scene will tend to give the benefit of doubt to the wisdom of the people
of India, be they Hindu or Muslim, Christian or Parsee, in nurturing democratic practices
despite the challenges inherent in a plural, unequal society. Social Justice and Social
Integration Social integration is high on the national agenda. Secularism and socialism (of the
Indian constitutional variety) are the chosen strategies for social solidarity and national
integration. It is in this context that the attention of policy makers has to be directed. Social
justice is an imperative necessity for democratic survival in India. The country did succeed in
the last four decades to generate selfsufficiency in food production and to prevent successive
famines which had been the basic fate of Indian people during the colonial regime. Yet, in the
matter of education, health, housing and employment there are large gaps which deny almost
half of the population of the country the benefits of freedom. Successive governments at the
Centre and in the States have been launching their own programmes in the name of "war on
poverty". Economists attributed part of the problem to the uncontrolled growth of population
which reportedly neutralized the achievements of development plans and programmes.
Others attributed the causes to the inherent defects of a planned centralized economy and
counseled a free-market orientation. All seem to be in agreement that unless widespread
poverty and growing unemployment are arrested on a 32 FATHIMA BF.RVI priority basis,
the future of social and economic democracy will be bleak for the country. It is in the above
context that one has to assess the role of judiciary in governance in India. An independent
and strong judiciary is what the democratic federal constitution has evolved for maintaining
the rule of law and for protecting basic human rights. Access to justice is the primary interest
of every living creature and in politically organized societies, it is the primary obligation of
the State to ensure as broad and varied a scheme as possible to give access to justice. By this
process, not only the rights of the people are protected but the scope for violent, destructive
conflicts is minimized. The political, legislative and administrative processes in varying
degrees do provide access to justice particularly in policy matters. However, in a large,
complex policy there are inherent limitations particularly for individuals and for weaker
sections of society to seek justice through political and administrative processes. In a party
system of government, those who are in the opposition or in the minority are bound to suffer
when the ruling party behaves in an arbitrary manner based on its overwhelming majority in
the legislatures. Indian democracy seems to have learnt its lessons from the experience of
dominant one-party rule. Of late, it has been throwing up hung legislatures in elections,
compelling political parties to go for coalition governments. The process does have the
advantage of the smaller minority groups having their say in political decision-making. Time
alone can reveal whether coalition politics is going to stay in India. However, as a result of
executive apathy or high-handedness and consequent denial of rights of different sections of
the people, the judiciary became an increasingly popular player in constitutional politics.
Judicial activism is a popular concept which seems to have carved out a legitimate place in
administration of justice in India. The rest of this essay will be devoted to a broad assessment
of what judicial activism has done in the recent past to enlarge access to justice, contain
social conflicts and promote democratic prospects in India. Judicial Activism and Democratic
Prospects The liberalization of the doctrine of locus standi in entertaining public interest
litigation on matters affecting fundamental rights opened up new avenues for judicial
activism in recent times. The increase in governmental inaction and indifference in
discharging legal obligations provided several occasions for taking public grievances to court.
The inability of the political and legislative institutions to extract executive accountability
further contributed to the drift towards judicial remedies even in matters which normally
should have been resolved at the political level. Indeed, the judiciary is being overused today
because of the shortcomings of the other two wings of government which is perhaps not good
for democracy in the long run. In this regard, the observation of the Chief Justice of India that
judicial activism is a temporary phenomenon is to be welcomed. Meanwhile, it is necessary
to find strategies for institutionalizing activism in the judicial process so that it will be
revived when occasion 33 THE JUDICIARY IN DEMOCRATIC GOVERNANCE demands
and will be contained within constitutionally acceptable limits in the spirit of democracy and
the rule of law. In recent times, judicial activism manifested itself in three important areas,
namely, political corruption, environmental pollution and issues involving right to life and
liberty. Corruption, no doubt, is the major public enemy today and it is growing along with
the criminalization of politics. The Vohra Committee Report has given the dimensions of the
problem and the potential threat it poses to the integrity and stability of the country. With the
executive controlling investigation and prosecution, there is virtual impunity for corrupt
elements in high places even where police records disclosed evidence of culpability. Besides
endangering the rights of law-abiding citizens, executive inaction in this regard contains the
potential for jeopardizing the capacity of the criminal justice system to maintain democracy
and the rule of law. This was one type of situation in which the Supreme Court became
activist at the instance of publicspirited individuals, encroached what in normal times is the
domain of the executive, and directed the investigating agencies to ensure that the law took
its course irrespective of the consequences. Another significant jurisdiction in which the
Supreme Court as well as several High Courts have been active in recent times is in the
matter of environmental degradation through non-enforcement of pollution and civic laws by
a number of agencies of the Central, State and local governments. Closing down of industries
giving employment to several persons and adding to the economic prosperity of the nation is
not a pleasant task; however, in the face of pollution control legislation and declaration of
policies on sustainable development, it is incumbent on courts even to take suo moto action to
discipline polluting industries, as the consequence of not doing so is silent death for
generations to come. The greatest of industrial tragedies which took place in the Union
Carbide plant in Bhopal should at least remind the law enforcement agencies of the
consequences of neglecting the environment. Activism in this sphere deserves to continue,
given the marketization process under way. The third important area of judicial activism
came about in giving meaning and content to the guarantee of right to life. Having declared
that the right involves " life with dignity " and not mere animal existence, the Court adopted
an expansive jurisdiction invoking "due process" interpretation into the phrase "procedure
established by law" in Article 21 of the Constitution. Today, the right under Article 21 has
produced a number of related rights such as the right to legal aid, to education, to a speedy
trial, to livelihood, to a clean environment, etc. In the application of these rights to specific
situations, courts might have stepped into executive or legislative territory in significant
ways. In fact, it is this approach of the Supreme Court which led to the doctrine of non-
amendability of the basic structure of the Constitution. Judicial review indeed is a powerful
weapon in a written Constitution and certainly, the Constitution-makers intended it that way.
The scheme of the Constitution and the unique status given to the judiciary under it
demonstrates that intention in ample measure. 34 FATHIMA BEEVI The problem is to know
the limits of activism and to ensure that it is confined to such limits. The Constitution does
not countenance unlimited or uncharted power in any institution of government including the
judiciary. By training and experience, judges are people who naturally act with restraint,
keeping in mind the demands of judicial discipline and the oath of office. Nevertheless, the
citizens should know the parameters of judicial power and should have reasonable certainty
of law irrespective of the judge handling the situation. If activism is left to the choice of
individual judges, there are possibilities of abuse even with the best of judges. Furthermore, it
is one thing to restrain the executive from performing an illegal act or performing a legal act
in an illegal way. It is part of the judicial function. Courts can well strike down executive or
legislative actions which violate the Constitution. When it is vigorously and frequently done
it may appear activist. But using the power of judicial review to command the executive or
the legislature to do things involving policy issues and budgetary allocations is questionable
in many ways. If judicial activism can be matched with executive or legislative activism,
there is no problem; otherwise, confrontationist situations develop and courts are forced to
invoke contempt jurisdiction too often caus