Without Constitutionalism, only a husk of democracy remains: Former CJI MN Venkatachaliah
Former Chief Justice MN Venkatachaliah

Without Constitutionalism, only a husk of democracy remains: Former CJI MN Venkatachaliah

Delivering the third annual RTI Lecture on Saturday, the former Chief Justice sought to situate the judiciary’s role as ‘sentinel on the qui vive’ within the broad framework of the constitutional system.

Constitutional democracy is one in which the will of the majority is controlled and directed by Constitutional principles without which only a husk of democracy would remain, former Chief Justice of India, Justice MN Venkatachaliah said on Saturday.

Constitution and Constitutional principles, he opined, serve as a bulwark against majoritarianism and the concentration of power with any one branch of government.

"Constitutional democracy is one where the majority will and rule are controlled and directed by Constitutional principles. Otherwise, it will sooner or later degenerate into elective despotism and then mobocracy," the former CJI said.

He was delivering the third annual RTI Lecture hosted by the Money Life Foundation's RTI Centre on the topic "Is our judiciary delivering on its role as a sentinel on the qui vive in these changing times?”

Without Constitutionalism, only a husk of democracy remains and democracy becomes a mere statistical interpretation of numbers.
Former CJI MN Venkatachaliah

Watch the full session:

Justice Venkatachaliah’s remarks on democracy were among a wide array of themes touched upon by the judge in his lecture.

He explored how the ideals of rights and liberties inform the judiciary to perform its role as ‘sentinel on the qui vive’ within the broad framework of the constitutional system.

"It (sentinel on the qui vive) expresses the constitutional philosophy of checks and balances. It simply means this – a structure of government should be so designed that each branch is a sentinel on the qui vive against the other two, lest they become too powerful or too autocratic", the Judge explained.

While primarily tracing the evolution of the judiciary from its initial role as an umpire to the conception of judicial duty as an obligation to the people, the former judge also spoke about connected themes of democracy, the electoral process, legislation and the citizen’s role.

…no office in the land is more important than that of being a citizen.
Former CJI MN Venkatachaliah

How public law principles infuse judicial functioning

Justice Venkatachaliah opined that the drafting of the Indian constitution was a spiritual experience especially because great diversities were accommodated and catered to while delineating rights and liberties to the citizens.

Explaining that this concern for rights primarily stemmed out of humanity’s experience with the Second World War, the judge traced how rights and liberties shaped the judiciary.

Public law principles reinforced the idea that judicial duty lay towards the people of India. To hold the State accountable for its acts, the judiciary evolved new methods of legal control such as stays on State action and broadening the ambit of the ‘State’ to include its instrumentalities, he explained.

The infusing of public law principles in judicial processes was one of the ways in which the judiciary acted as a sentinel on the qui vive.

The Judge as a lawmaker

Pertinently, Justice Venkatachaliah asserted that judges did make law. By undertaking projects such as easing restrictions on who had the legal standing to file cases (easing locus standi), propounding principles to hold the State accountable and evolving public interest litigation as a tool to ameliorate the conditions of the marginalised, the judges did, in fact, make law, he opined.

Judges, however, did not make law out of abstract principles, he stated. Describing the process, he explained that judges only collected raw material and combined them for the purpose the court wished to achieve.

Commending the judiciary for its role in curbing political excesses in electoral and public life, in upholding personal liberty and its decisions promoting various environmental causes, human rights and welfare causes, he cautioned judges against judicial activism beyond a point.

Terming judicial activism as a slippery slope, he observed that Courts have recognized limitations on their power of judicial law making. He also emphasized on the importance of judgments being reasoned, logically coherent and politically-neutral.

Judiciary as a sentinel on the qui vive against subvertive electoral processes

Characterising elections as filters on raw public opinion, the judge observed that finally the human factor determined the fate of Constitutionalism and Constitutional government.

Quoting former Election Commissioner Dr SY Quaraishi’s comments on elections being polarizing events that have accentuated casteism, communalism and crony capitalism, he emphasized upon the need for candidates to be willing to conform to Constitutional norms.

Underlying this electoral process was the basic legitimacy of the judicial system, he underscored, which acted as a sentinel on the qui vive.

Democracy is not the best, but it is the least hostile form of government

On the theme of democracy, the former CJI also pointed out that the trust placed in a democratic system of government has waned over the years, terming it democratic fatigue.

"Various surveys around the world show a considerable increase in calls for a strong leader, who does not have to bother with parliament and elections, and that trust in governments and political parties is at a historical low. This is the pendulum effect, as they call it. If you go to the other end, you think the next opposite end is heaven. This is how the public mind is and trust in governments and political parties is at a historical low. It appears that people like the idea of democracy but not the reality. They love the idea, but not the result," Justice Venkatachaliah said.

All the same, he observed that, "Democracy is not the best form of government, but it is the least hostile of all the systems tried so far."

He added that while political parties are among the most distrusted institutions in society, the idea of a benevolent dictator is a contradiction in itself.

The session also saw addresses by former Supreme Court Judge, retired Justice AK Sikri and Senior Advocate Indira Jaising.

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