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Rule Of Law Greatly Dependent On Independence Of Judiciary : Justice BV Nagarathna

Awstika Das
3 Oct 2022 5:26 AM GMT
Rule Of Law Greatly Dependent On Independence Of Judiciary : Justice BV Nagarathna

While the assurance of the courts that it will guard the playbook of democracy and keep it burning bright is important, the duty of every citizen to not be mere "consumers of good governance" but "co-creators of good governance" is more important, said Justice B V Nagarathna, judge of the Supreme Court, on Saturday. "Every citizen must not only adhere to the Fundamental Duties as enunciated in the Constitution but also strive to become responsible citizens as to aid constitutional and statutory authorities to discharge their duties in the most effective manner so that the rule of law and good governance are achieved," she explained. She also stressed the importance of an independent judiciary to ensure good governance.

"The rule of law is greatly dependent on the independence of the judiciary", she said.

Justice B.V. Nagarathna was delivering the Y.V. Chandrachud Memorial Public Lecture at the Law Day celebrations of Symbiosis Law School, Pune on the topic of 'Revisiting judicial trajectory on good governance.'

"I was told that the lecture will coincide with the Law Day celebrations at Symbiosis. Traditionally, we all know that Law Day or Constitution Day is on November 26. We celebrate giving to ourselves the Constitution. But according to me, every day is Law Day, because we are a democracy governed by the rule of law," she said.

Describing the role of an independent judiciary as the protector of the rule of law and a "tripartite system of governance" under the Constitution, Justice Nagarathna enumerated the broad areas of judicial intervention – "First, to create an expansion of fundamental rights and providing momentum to its implementation through judicial activism. Second, to discipline and conscientise good governance through the exercise of the advisory jurisdiction of the Supreme Court. Third, judicial review of executive discretion and delegated legislation."

With respect to "the expanding horizons of the Fundamental Rights", Justice Nagarathna traced the history of the Supreme Court from the time when India was a nascent democracy and the apex court faced several challenges in "performing its role as the watchman and guardian of the democracy". In subsequent decades, she noted, the august institution played a vibrant role in "bringing the Constitution in alignment with the development of civil, economic, political, and social rights". Justice Nagarathna also commended the "creative and innovative approaches adopted" by the Supreme Court which led to the crystallisation of constitutional ideals and "securing of India's aspirations". She touched upon some of its landmark judgements to demonstrate "the greatest degree of compassion, innovation, and fairness" with which "the Supreme Court guarded and continues to guard the rights fundamental to human existence."

In her speech, Justice Nagarathna also explored the birth of the 'Public Interest Litigation' during the years when Chief Justice YV Chandrachud was heading the Supreme Court and the later developments in this field. She observed that the emergence of PILs led to the throwing open of the "portal of the Court" to the common man. In dealing with their unusual problems, Justice Nagarathna confessed that the "line or lakshman rekha between adjudication and legislation on the one hand, and administration and adjudication on the other" was sometimes shifted. However, she asserted that such cases brought a new debate and dialogue on the role of constitutional courts in "a dynamic society such as ours". She added, "The Supreme Court has democratised the access to justice by relaxing the rule of locus standi."

"The Supreme Court as well as all the High Courts, have taken what is considered a dismal social problem, that is, the lack of access to justice for the poor and oppressed and used that problem as a springboard for building a strong tradition of voluntary social action by empowering representatives to approach the court on behalf of the poor and oppressed or any other class of affected persons, by way of PILs. The public interest litigation is the greatest contribution of the Supreme Court till date," she said.

On the unique advisory jurisdiction of the Supreme Court, Justice Nagarathna observed, "In English law, it is virtually an unknown concept. There is a deep-seated objection against courts giving views on a matter that does not determine the rights of a citizen in an actual dispute. However, Article 143 expressly recognises the advisory function of the Supreme Court of India to guide the executive and the legislative organs of the government."

On the issue of the judicial review of executive excesses, Justice Nagarathna explained the "all-encompassing formulation devised by Indian courts" for the review and control of administrative action. Finally, while speaking about the separation of powers, she spoke about the role of the judiciary in "galvanising the constitutional machinery". She said, "Any state action making inroads into the personal liberty or basic human rights of an individual must invariably be subjected to judicial scrutiny. The doctrine of separation of powers flows from the concept of independence of the judiciary. It is not only a Directive Principle of State Policy but something that is cherished by all judges and adjudicatory bodies. The rule of law is greatly dependent on the independence of the judiciary."

Justice B.V. Nagarathna is likely to be the country's first woman Chief Justice of India in 2027. Justice Nagarathna will follow in the footsteps of her father, Chief Justice E.S. Venkataramiah, who held the position for around six months in 1989.

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