Role of Constitution and Judiciary to protect the democracy
Tejashree Anant Salvi
INTRODUCTION
The judiciary is the part of government that interprets the laws or states what the laws mean, whereas democracy is a type of government in which citizens share authority. The anatomy of the Indian Constitution is broadly Montesquieu, and among the customary trinity, the Founding Fathers vested in the Judiciary, particularly the Supreme Court, sweeping powers beyond what comparable courts in other countries, including the United States, possess, and the judicial odyssey deserves to adjust critique, even as the country celebrates its semi-centennial, blending a performance audit with seminal suggestions for a better justice system. Judicial democracy includes (the definition implies) simultaneous adherence to democratic and constitutional standards. Judicial democracy entrusts judges with the responsibility of exposing democratic decision making to constitutional scrutiny. It does so on the basis that, while judges are accountable to the democracy of which they are a part, they are typically relatively autonomous in comparison to other authorities. Nonetheless, and ironically, commitments to democracy call into doubt the legitimacy of judicial power insofar as judges are unaccountable to those over whom they exercise power.
Two Constitutional Democracy Principles
Many people have pointed out that two of the essential ideals to which constitutional democracy is dedicated are incompatible at best and in serious conflict at worst. The will of the majority, according to one principle, should govern: restrictions on majoritarian authority are unreasonable to the pure democrat. However, this idea clashes with constitutional norms. The constitutionalism, unlike the democrat, is cautious of majorities, particularly majorities' desire and capacity to preserve individual autonomy. Therefore, a premise of constitutionalism states that certain rights held by individuals and minorities often prevail over the intention of the majority. These concepts are briefly studied in
order to set the way for what follows. Democracy, or government by the many, is contrasted from rule by the few and rule by one. In other words; democracy gives all the competent members of the political community to say in the political decision. In actuality, countries often referred to be democracies fall well short of this ideal due to disparities in wealth, access to communication technologies, and other factors that immediately translate into disparities in political power.
1. Democracy: Representative democracy by the people is contrasted from rule by the few and rule by one. In wealth, access to communication technologies, and other factors that translate directly into disparities in political power. Citizens are still formal political equals, at least according to the democratic ideal. Majoritarianism is almost often assumed in democratic philosophy (although, as explained below, advocates of democracy generally limit the scope of majority rule). When members in a polity are political equals that is when they have an equal say in decision-making processes the policy alternative that attracts the most voices wins. Democracies live by the premise, crucial to the process of winning the consent of the governed, that the majority has the ultimate ability to depose decision-makers and reject any portion of their policy. Indeed, the relationship between democratic administration and majoritarian control is so strong that democracy is sometimes defined as the rule of the majority.
2. Constitutionalism: Democracy alone leaves the political choices for the majority. More comprehensive views of democratic administration, on the other hand, frequently incorporate one or more constraints on majoritarian authority. The concept of limits to Majoritarianism often takes the form of another principle, that which underlies constitutionalism. Constitutionalism is based on a terror of the dangers of mastery of the majority, and any interference in democratic practice must be justified. The motherboard of the Constitution felt that these limits could be justified by appealing to moral rights that individuals have against the majority, which the constitutional provisions recognize. It is possible to say acknowledge and protect. In any event, one of the primary purposes of a constitution is to define the boundary
between majoritarian authority and individual autonomy, or, to put it another way, between Legitimate and illegitimate exercises of majoritarian power. Individual autonomy is secured, among other things, by limiting the powers that the majority may exercise ("substantive rights") or the manner in which the majority may execute its powers ("procedural rights"). Majoritarian authority loses legitimacy when it intrudes into protected domains of individual autonomy or interferes with individual autonomy in ways that are not defined by law. The Constitutional Protection Principle: Individuals' constitutional rights against the majority restrict majoritarian authority; therefore actions endorsed by a majority that violate such rights, substantively or procedural, are without force. Constitutions exemplify this notion of constitutionalism by imposing checks on majoritarian choices. Majoritarian choices are scrutinized to ensure that they are consistent with constitutionally protected rights.
CONCLUSION
It is apparent that the Judiciary plays a critical role in preventing the Executive and Legislative branches from becoming absolute. Justice is ineffective without power, and power without justice is tyranny. For human rights to flourish, we need powerful judges, not judicial incompetence masked in pomp. The rule of law is a categorical imperative and inviolable component of our Constitutional Order. The state has important social and economic obligations, which the Court must monitor and enforce. When fundamental rights are violated, the High Courts and Supreme Court will open fire in order to protect the victim and correct the injustice. However, the judges themselves must be free of pressure and bias, as well as sensitive to act, be the violation ever so high in the hierarchy.
REFERENCE
https://www.legalserviceindia.com/articles/jc1.htm
https://ncert.nic.in/ncerts/l/keps206.pdf
https://timesofindia.indiatimes.com/blogs/courts-commerce-and-the-constitution/can-the-courts-save-a-constitutional-democracy/