Judiciary Must Be Aware Of Unprecedented Constitutional Crisis Facing Our Republic & Defend Constitution And Rights : Dr Mohan Gopal

Renowned legal academician Dr G.Mohanl Gopal delivered a lecture on the topic "The Judiciary in a Democracy: Challenges and Responsibilities" as part of the fourth Professor Shamnad Basheer Memorial Lecture organized by Live Law on December 22, 2023. In the lecture, Dr.Gopal, drawing on from the observations made by former Chief Justice of Israel Justice Aharon Barak regarding the role of judges in a democracy, explained that the Indian judiciary has an important role to play when the Constitution is facing an unprecedented onslaught from forces which seek to convert India to a theocratic state. He raised concerns about the backsliding of substantive democracy in India and the increasing concentration of powers within a few powerful communities, diluting the concept of representative democracy. He opined that substantive democracy in India has suffered major setbacks from several judicial actions and evasions."Substantive democracy is being pushed back by the judiciary by not proactively and rapidly protecting free speech and dissent; by not stepping in to rein in extensive selective prosecution of opponents while sparing those who align with the ruling regime; by permitting prolonged under-trial detention of democratic activists, opposition leaders and journalists even in the absence of adequate evidence against them; by not devising legal measures to prevent hate speech and communal violence against minorities; by not effectively protecting religious freedom and press rights; by allowing growing concentration of economic power...," he said."Given that the executive and legislative branches have already fallen under the control of groups that have openly committed themselves to establishing a theocratic nation totally opposed to the Constitutional vision of formal and substantive democracy, the Indian judiciary is the only branch of the Indian state that is still at this time independent enough of anti-democratic forces to be able to resist this onslaught and protect the Constitution and defend human rights. We earnestly hope that the judiciary is aware of this unprecedented constitutional crisis facing our Republic and will study and reflect on their oaths carefully and ensure that they stoutly defend the Constitution and protect human rights of individuals and minorities," he added.The full text of the lecture is given below :I would like to begin by paying tribute to Prof. Shamnad Basheer, an exceptional jurist and human being. Prof. Basheer made his mark as an accomplished teacher and as an innovative thinker who fashioned innovative solutions for pressing problems of society. Prof. Basheer made remarkable contributions in particular to improving access of marginalized sections to elite institutions of legal education. It is a special privilege to speak today in his honour. I also take this opportunity to express my deep appreciation for the valuable contribution made by Live Law on which we depend for accurate and comprehensive current information about developments in the law. I congratulate Live Law for organizing this memorial lecture.The IssueIn this lecture, I would like to discuss in the current context of our country a crucial question raised by Justice Aharon Barak, former Chief Justice of Israel and renowned jurist, in his renowned book “The Judge in a Democracy” (Princeton University Press (2016). What is the role of judges and of the judicial system in a democracy? What are the challenges faced by the judiciary in a democracy? What are their unique responsibilities?Judiciary and Democracy: Justice Barak's analytical frameworkI would like to begin with the analytical framework developed by Justice Barak in addressing the issue of the role of the judiciary in a democracy. Justice Barak argues in “The Judge in a Democracy”:Our age is the age of democracy. New countries have joined the community of democracies. Many of them wish to re-examine the nature of modern democracy, which is not based solely on the rule of people through their representatives (formal democracy), but also separation of powers, the independence of the judiciary, the rule of law, and human rights (substantive democracy).A key historical lesson of the Holocaust is that the people, through their representatives, can destroy democracy and human rights. Since the Holocaust, all of us have learned that human rights are the core of substantive democracy. The last few decades have been revolutionary, as we have learned the hard way that without the protection of human rights, there can be no democracy and no justification for democracy. The protection of human rights — the right of every individual and every minority group— cannot be left only in the hands of the legislature and the executive, which, by their nature, reflect majority opinion. Consequently, the question of the role of the judicial branch in a democracy arises.Justice Barak goes on to say in his book:"There are two central elements of the judicial role beyond...

Judiciary Must Be Aware Of Unprecedented Constitutional Crisis Facing Our Republic & Defend Constitution And Rights : Dr Mohan Gopal

Dr G Mohan Gopal

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