Emerging Trends In Judiciary Towards Better Governance
There can’t be two views about the significance of the role of the judiciary, viz-a-viz, the goal of good governance in a free society
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There is no universally accepted definition of Governance. Governance broadly includes:
i) the process by which Governments are elected, monitored and held accountable;
ii) the capacity of the Government to effectively formulate and implement policies of public interest;
iii) the effectiveness of the rights of the citizens to approach independent arbiter in the instance of any dispute arising.
There may be divergence of opinion about the concept of Governance amongst the conservatives and the liberals; socialists and the communists. But one thing, where there is no discord is the role of judiciary in ensuring good governance.
An efficient, effective and democratic Government is the best guarantor of Social Justice as well as an orderly society. And the good governance is the key. At the heart of the good governance lies, the assurance of safety of people particularly, security of life, personal liberty and property. When good governance is failsafe, citizens go about their personal business and pursuits with enhanced expectations.
The concept of good governance is undoubtedly linked with the citizens’ Right to Life, Liberty and Pursuit of Happiness. In a democracy this can be secured only through the rule of law. The important responsibility of proper implementation of rule of law lies greatly upon the judiciary. Thus, right of the people to access to Justice plays a decisive role in ensuring good governance.
Democracy is characterised by decentralisation of power and transparency. People are the most important stakeholders in a democratic set up. They are the power holders whereas government as fiduciary, is expected to hold and exercise power for the benefit of the people. Empowering people, thus, is critical to strengthen democracy and access to information is quintessential to that.
The Judicial System has a vital role to play in ensuring better public governance. There may be plethora of rules, regulations and procedures but when disputes arise, they have to be settled in the Court of Law. Indian Judiciary has been proactive and has scrupulously and over jealously guarded the rights fundamental for human existence. The scope of Right of Life has been enlarged by the judiciary through expansive interpretation in number of cases.
Judiciary, of late, is facing flak from various quarters. The higher judiciary is being criticised for its undemocratic and opaque functioning. Judiciary has an arduous challenge before it, to which it has started responding through corrective and remedial measures. This are numerous examples of this. For instance, Hon’ble Mr. Justice Dipak Misra, the Chief Justice of India has promised to introduce more transparency in the decision-making process followed by the Collegium in the appointment of judges in the higher judiciary. This is in line with the internationally accepted principle of achieving good governance. Ever since collegium system for judicial appointments has been introduced in 1993, the collegium of the nation’s five senior most Judges, including the Hon’ble Chief Justice of India was subjected to criticism for being opaque. The government had tried to dismantle the system by introducing National Judicial Appointments Commission, which was rejected by the Supreme Court last year. As the demand for transparency mounted, the Chief Justice of India acted against the opaqueness, silently and suddenly and thereby scripted history.
Further it is worth stating here that the Chief Justice of India has stopped the practice of mentioning by Senior Advocates and has now allowed the Advocates-on-Record to mention the matter as ‘urgent matter’. This will give necessary impetus to the establishment of good governance as it will help even those litigants, who earlier, could not afford the services of Senior Advocates for contesting their urgent cases. This makes access to Justice available even to the poor and thus, is a step in the forward direction.
Another laudable step which has drawn my attention is the decision of the Supreme Court in distancing itself from mediation in Jammu & Kasmir. Instead, the CJI has suggested that the matter be remanded to the High Court to decide. The stand taken by the SC has further fortified the separation of powers, an essential element to the principles of good governance.
It is commendable on the part of the judiciary to be over-concerned about pendency of litigation. CJI has initiated drive to reduce pendency and has sent a communique to the Chief Justices of High Courts asking them to make ‘five plus zero’ pendency a reality. The CJI has also asked for exploring the possibility of hearing criminal appeals in jails only, on Saturdays by specifically constituted benches, after obtaining consent of the legal Aid counsels and State counsels for providing legal aids. This move comes as a boon in disguise for the prisoners who can-not afford their own lawyer and are languishing in jails. The act of the judiciary has acted as a succour and is a righteous move.
The progressive decisions of CJI and the judiciary go on to show that it does not shy away from being transparent and is genuinely concerned about realizing the rights of the citizens while at the same time remain within the circumference scribed for it by the Constitution of India.
It is also a matter of great satisfaction to witness that the two other chief organs of the State i.e. Legislature and Executive, have always respected and followed the orders and directions of the judiciary passed in exercise of its power of “Judicial Review.”
Judiciary has, thus, played a crucial role in development and evolution of society in general and in ensuring good governance by those holding reigns of power, in particular. There can’t be two views about the significance of the role of the judiciary, viz-a-viz, the goal of good governance in a free society. I believe that judiciary has played its role well.