Independent and impartial judiciary maintains Constitutionalism, rule of law - Sri Lanka Guardian

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Monday, March 26, 2018

Independent and impartial judiciary maintains Constitutionalism, rule of law


“The rule of law requires that the government should be subject to laws rather than law should be subject to government.”



by Anjum Parvez and Subhra Agarwal

( March 26, 2018, New Delhi, Sri Lanka Guardian) Independent and impartial judiciary is unequivocally regarded as one of the hallmarks of a vibrant democracy. It’s often said that the social development, prosperity and strengthening of democratic credentials in a society depends upon complete justice, independent judiciary and rule of law.

However, these cherished goals can be achieved only if all institutions of the state dispense their functions with dedication and devotion and pay heed to the Constitutional mandates.

In this context, the Constitutions of India, England and United Sates of America (US) have bestowed upon the judiciary the deadly task of protecting the fundamental rights of the subjects. This is the reason the judicial departments in these democracies have been made independent of other organs of state to champion the cause of judicial independency. Because, the framers of the Constitutions were of the opinion that an independent and vibrant judiciary can only succeed to garner public trust and foster social justice and Edward Coke’s concept of rule of law.

Coke is said to be the originator of the concept of rule of law when he asserted that king must be under god and law and thus vindicated the supremacy of law over pretensions of the executive. He was the first person who coined a maxim called “Law principally de legalite,” which means “Law will rule.” The concept is in the negation of individual’s governance.

Importantly, Coke’s Rule of Law (RoL) was later explained at full-fledged length by the much-acclaimed professor of Constitutional Law AV Dicey in his popular work The Law of Constitution (1885). Dicey’s notion of RoL was based on three principles: supremacy of law, equality before the law; and predominance of legal spirit.

On this note, Professor Wade in his book Administrative Law argues, “The rule of law requires that the government should be subject to laws rather than law should be subject to government.” However, an independent judiciary could only spearhead the cause of rule of law and constitutional spirit. Conversely, an obedient judiciary would be successful in upholding the philosophy of ruling party, not the philosophy of Constitution.

Further, Wade and Philips in their work Constitutional Law (1960) observed, the theory of separation of power signifies that the same set of persons should not compose the functions of more than one organ of government.

In contrast, there is an uncontested truth that only justice can ensure unity and integrity of a state and that justice can be prevailed by an independent judiciary. This is the reason why the highest court is always considered to be the ultimate adjudicator of dispute between one state and the other or between central government and state government(s) or vice versa. In these unprecedented situations, independency of judiciary is a must for limiting the tussles among the government machineries. As per Article 131 of the Constitution of India, the Supreme Court under ‘original jurisdiction’ clause is empowered with an exclusive jurisdiction to decide the disputes between the government of India at one side and one or more states at the other side; or vice-versa.

However, the US Constitution empowers the Supreme Court to consider only the matters relating to question of law or matters in want of Constitutional interpretation.

At this background, a potent weapon in the hands of judiciary could be the power of judicial review to establish the supremacy of Constitution. Judicial review is the procedure established in Britain where the courts have been conferred power to supervise the exercise of public power. In US, the Supreme Court can set aside any order pronounced or action taken by the administrative authority if it contravenes with ‘due process’ clause of the Constitution. Similarly, in India the concept of judicial review is not championed by a single Article. There are plethora of Articles which include Articles 13, 32, 131 to 136, 142, 143, 226 or 246 to activate the cause of judicial review in India.

An independent judiciary helps in establishing the rule of Constitution in any state. It means the supremacy of Constitution can only be maintained when the judicial department is given an inherent duty to decide what law is. Chief Justice Marshall while dispensing the landmark judgment for Marbury v. Madison (1803) had observed that the ‘Constitution of US is supreme law of land’ and it’s the task of judiciary to declare what the law is.

Over and above everything else, there must be continuing efforts to assure the nation that a truly independent judiciary can exist in a democracy which would not be sabotaged at any pretext.

In a bid to canvass the concepts of rule of law, judicial review or separation of power, the judicial independency is a must. Justice HR Khanna himself in his autobiography-- “Neither Rose, nor Thorns”--mentioned that if there are three prime requisites for the rule of law, they are: strong bar, independent judiciary and enlightened public opinion.

Justice Khanna further argued that there can be no greater indication of decay in the rule of law than a docile Bar, a subservient judiciary, and a society with a choked or coarsened conscience.

It’s time for the states to acknowledge the uncontested saying of HR Khanna, at least, for maintaining constitutionalism in democratic set up. Its high time we realized that in a country with written Constitution, courts ought to have the additional functions of safeguarding the supremacy of Constitution by interpreting and applying its provisions and keeping all the authorities within the scope of Constitutional mandates.

Garner has rightly said that the rule of law is often used simply to describe the state affairs in a country where the law is observed and order is kept. And, the breeds of RoL cannot nurture in a democratic society where there is denial of independent, impartial and vibrant judiciary.

Moreover, the concept of judicial review is a sacrosanct principle embodied under the Constitutions which gives a spacious room for the judicial department to act freely for maintaining Constitutionalism in the state. It has been hailed as the basic structure of the Constitution in India. In this way, the doctrine becomes the most potent weapon in the hands of the judiciary for quickening the pulse of rule of law.

Its horizon further broadens when it comes to acknowledge that the notion neither allows the other wings of government to enact any piece of legislation in contravention to the rights conferred by the Constitution. Nor, it permits the executives or administrative authorities to go offending the principles of natural justice.

There is a common perception that the judiciary in India, UK or US has been playing a constructive role over the years. It has moved a step ahead in right direction to cement the walls of Constitutional democracy in India, UK or US. However, the judiciary cannot champion this cause unless it’s impartial and independent.

It would be just to conclude that sovereignty is located neither in parliaments of India, US or England nor in the judiciary but in the Constitution itself. So, there is a dire need to maintain the sanctity of our judicial department for quickening the pulse of supremacy of Constitution and rule of law.



(Mr Parvez is a faculty member at Constitutional Law in Uttaranchal University, Dehradun, India and Ms Agarwal is a student of LL.M (Constitutional and administrative laws) at Faculty of Law College Dehradun, Uttaranchal University.) 




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