Justice AK Sikri, Judge Singapore International Commercial Court, a former judge of Supreme Court of India and incumbent chairperson of News Broadcasting Standards Authority; Justice Michael D. Wilson, sitting Judge of the US Supreme Court; Justice Matthew F. Cooper, Justice of New York County Supreme Court, USA; Professor C. Raj Kumar, founding Vice Chancellor of Jindal Global Law School speak to Tarun Nangia on the Legally Speaking program aired on NewsX about Democracy, Courts and Rule of Law.
Sikri: so but that would be a simplistic view as I said earlier and going by what our constitution expects from the judiciary when we talk of democracy and when we talk of Rule of Law, I would say that the first fundamental rule which is assigned to the judiciary is to uphold this democracy and uphold the rule of law so that has to be in all given circumstances other role which is prescribed in Indian context and which is relevant in many countries and it may be in a different context but may be relevant in the case of US also and going by the fact that we I mean in 1947 when we got independence and in 1950 we gave ourselves this constitution India was one of the poorest countries and poverty is still their so we have marginalized people we have deprived people in our society so therefore over a period of time and having regard to the chapter on fundamental rights which was pointed out by professor Raj Kumar and another chapter on this directive principle of state policy and how this I mean has been interpreted over a period of time and many aspects of directive principles which are not enforceable otherwise have been brought into the contuse and scope of fundamental rights particularly Article 21 and how those have been enforce is a enlighten history and with the contribution of the Supreme Court is remarkable but what I am saying is that the second rule from this first rule I said to uphold the constitution and the rule of law second rule is here it comes to bridge the gap between the Law and the society wherever this gap is there so that is the role over the period assign now what happens actually now third dimension which we feel now is happening but particularly in last few years in various countries and I will include US and India as well is the kind of you see we started as Justice Wilson said that today international I mean we have to see it with international angle there are boundaries geographical boundaries are getting blurred etc particularly after globalization but the same time a parallel thing which has started at least in last couple of year is and particularly after 2008 when there was an economic recession in the world has again been brought into in many countries they feel that look no we have to first take care of the people from our country and so I am not I think I am very clear in what when I am saying so and I am not giving the examples etc now on the one hand we talk of liberal democracy so in a liberal democracy the power of the state is limited right even if it is elected government so major rims would not rule in that since minorities also and the other section of the society also have a right to say in the governance that doesn’t mean that they are totally deprived of it know hobs had given us the social contract theory where he had created a leviathan state if you see and the purpose was is the objective behind his leviathan state was look if they don’t have and that is how the democracy came into being we don’t have a organised society and I an un- organized society it would be a jungle raj and the mighty person with which can I mean rule and say so therefore we can’t have that kind of anarchy so that is why said leviathan state where there it would be people elect their representative who will govern but at the same time the state and these are some of the stories in last few years if you see Turkey, Livia and other countries where the state also becomes despotic so therefore how to control that so the new theory which is emerging and which is know projected in large couple of years is that we have to have a state as state has to be there in the democracy which would rule but then it should be a shackled state shackled is the expression which is used it should be a shackled state where society should have a right to project it’s voice even against the elected government even if everted government is not going ahead and as per the constitutional norms etc now having said so in our Indian context where of course now recently in a different context there is so much of protest etc I am not going into the merits weather their protest are good or protest are bad but then over a period of time and in Indian context where the I mean people have not been able to raise their voice otherwise it was an the history has shown that it is left to the judiciary in that context I come to your second aspect which you said should I answer that just know or.
T.N: No, just before you answer I want to briefly answer Professor Kumar raise an interesting point when he said that it’s not the judiciary which is supreme or the parliament it’s a constitution which is supreme would you agree with his?
Sikri: I agree 100 percent with him because even it’s not only the Legislature or the executive which has to function within the frame work of the Constitution that is the duty of the courts also that is the duty of Judiciary as well as I said in my opening remarks that the scope and the powers of all the there
T.N: So, you are an agreement with the theory
Sikri: oh yes- yes completely an agreement but what I said was and that makes important is ultimately suppose if a particular law is enacted I am giving an example by the parliament and the validity of that law is challenged now in the court the government would come Union of India would say that they know law which is passed is constitutionally valid right the person challenging would say that no it is not it offends the Article 14 Article 19 or Article 21 of the constitution or any other provision of the constitution or it is ultra-virus it was not within the powers of the parliament to enact such a law it’s this power is given to state legislature etc so these are the drowns on which Law can be challenged but then who is to decide here judiciary comes in so that the last word is with the judiciary .
T.N: It is the last word but you are not saying that judiciary is more powerful it is the constitution which is powerful Now answering my question?
Sikri: It is the constitution which is powerful no doubt about it yes know I come to your question you asked me that the tendency has become you see there are as I said about a directive principle of state policy now directive principle of state policy are various principles enshrined in that chapter as per which any they lead towards good governance they are aimed at creating ideal society equalitarian society which is more I mean economically also which gets more prosperous etc that was the aim as Raj Kumar pointed out while the framers of the constitution so now those are the duties which are caste upon the executive that you frame such policies which are good for the people for those who are downtrodden those who are musealize section of the society there standard of living etc should be raised there all kinds of ways are there now executive over a period of time was seen has failed I mean that is the perception of the people that executive has failed in his duty to bring about not I am not at all commenting that look from last seventeen years there has been a lot of progress made by India economic progress and on social front also so credit of this goes to executive as well the government as well I am not saying that but in many ways
T.N: you mean aspects where there are many grievances
Sikri: There are grievances yes aspects where there are grievances and it started say in of course in seventies and when we have that we called it the socialist era when we had justices like justice Krishna and justice Bhagwati and justice Chinampa Reddy etc and this is called socialist period know for social rights in that so therefore those kind of cause s started coming and justice Bhagwati started that Public interest litigation which is called social action litigation I mean as well US is concerned so at that time it was thought that look there are some of the unprivileged sections of the society but because of there poverty or because of there this illiteracy they are not able to bring these causes the court started doing it.
T.N: So, you mean what you are indicating that there are grievances which the courts people came for the courts for redressal and the courts where it was not Suo motto it’s people who went to the court and then of course courts keep on getting involved as people saw results
Sikri: and to some extent although they went but initially it became it was Suo motto as well The courts also started up taking those issues a particular news item appears in the court if you see the history of the eighties and nineties now we have many public spirited person who are doing PIL one day some incident take place you see within twenty four hours less than twenty four hours writ petition is filed in the Supreme Court challenging that action earlier it was not in eighties etc it is the court which gave impetus to this as well and so what happened than if you see the history of PIL’s public interest litigation all the kind of litigation we’ll call it and it was stated also in one of the judgement in 2010 by justice Dalbir Bhandari State of Uttarakhand versus Balwant he has said that three phases of PIL’s first was this phase that for unprivileged class of people who can’t come to and the scope of Locus Standi is extended and so therefore the courts any public person who is not concerned with that case but he can come and file a case on behalf of the other and the courts can also take up the Suo motto and not only that you can in order to see that the procedure should not be the normal procedure of filling petitions etc was also give a go why you can even wite I mean a letter and post it and write it to this Supreme Court. Supreme Court will treat it as a petition and all so this was the first phase second phase which you see happened when the environmental laws relating to environment that our ecology protection of forest protection of revers etc and there are so many judgements of that kind with the Supreme Court started adopting because
T.N: now I will just take a moment we’ll go to the Justice Wilson at this point you have seen Justice Sikri shared the Indian example now lot of my viewers our viewers not acquainted what happens in USA could you share with us have courts in USA being called upon to tackle these kind of crisis specifically with regards to governance specifically with regards to issues that people have what has been the US example or it differ state by state could you share with us?
Wilson: Thank you! Well I am happy to talk about some of the history of the rule of law in the Unites State and let me say that in doing so it’s important to recognise as Justice Sikri has said this concept that we share as justice Cooper said of democracy is we the people because that is powerful term it means there is an assumption that the people are not going to be protected if you only have the executive branch democracy is not going to be healthy if you only have the legislature branch you need an institution called the judiciary that will guarantee the rights of and this is what it gives me a lot of inspiration as we say ch think about where does Mahatma Gandhi come from where does Ashoka comes from it comes from a history for standing up for the underprivilege and in a huge population called India so lets move to the United State we have same assumption that we have to be careful about our government this state as justice Sikri said we have to be careful this underlines all the relationships between the Judiciary the Executive and the Legislature we have to be careful not to give government too much power and the guardian are there and the men and women who are trained when I heard justice Sikri its just an achoo of the justice at the end the Supreme Court you have been trained to be independent invadable for example Public interest Law which is developed in a row bust powerful way India and also has developed in United States but it means that people left out people that are poured people that are pressed have a voice with the court In terms pf example in United States imagine we had a history of slavery what is the role of the court when you have the executive and the Legislative branch that are so in the past of the slavery it is challenged if first because of the pressure Institutional pressure the court said that slavery is constitutional hundreds of years ago but then is the living constitution then principles that are quiet clear through I think you are straight forward human conscious prevail and judges who are independence said that slavery of course is un- constitutional if you move forward to an industrial era this idea that there are four people children and factory they were being exploited they needed to be protected there are legislation pass who went to the Supreme Court because the government the executive want to know regulation of business because of might make business less sufficient the court had to decide and at first because the men and women came from this sought of industrial community the court said its unconstitutional to regulate the condition of children working in factory at the beginning so we looked to the India we see the traditional judges being so independent willing to declare that the constitution means that you have to right to life you have right to clean and healthy environment it helps four to five our judges and judges eventually decide that they of course under the constitution its probably good policy to control the condition of children working in facts just because your catch is leave it up to the powerful industry finally we know have a challenge in the alternate public policy issue standing up for the whole generation people there are less than forty years old and where there are most of those people in the word India is less than forty years old they are India by far with eight hundred and fifty people not more than in United State but to citizens have the right to come to the court and domain The clean and healthy environment its not so clear right now or in the United States anymore but its clear in India .
T.N: No in US it’s not clear anymore.
To be concluded in Part 3 next week.