The judiciary normally carries the meaning as an apparatus of law and its administration, albeit, bearing some semblance with the term judicatory but its contours are somewhat broader as compared to former, because when we speak about administration of law, it reflects new dimensions essence, bringing thereby within its sweep the constitutional doctrine, which in common parlance is called doctrine, of judicial review, conferring upon superior judges extra-ordinary and plenary powers exercised by them through the medium of various kinds of writs and commands as per the requirements of situation.

The superior judges while exercising their powers through their lucid judicial pronouncements reflect their wisdom through balanced observations, simplifications and explications of legal intricacies, correct exegesis of constitutional scheme and normative characteristics of law excathedra attribute to the intention of the legislature.

It is perhaps in this perspective that judiciary has been and is being considered the custodian of the constitution. More so in view of  the fact that at times laws are silent to cope up with a particular situation and it is because of plenary powers conferred upon superior judges, by the constitution, that they meet the situation by their judicial legislation emanating from their judicial wisdom. Lord Denning has correctly observed in such eventualities that “I think the judges alone can deal with instant case, to remedy the wrong in the case which is before them. If you wait for the legislation, you may wait for years and years and that cannot affect the instant case only the future cases”. It may be in this perspective that then lord Chief Justice of India Mr. P. N. Bhagwati has been pleased to observe that the resurrection of a person is not within the competence of the court, meaning thereby that if a wrong is not remedied well within the time, it cannot be rectified later. In view of this observation, judicial sentinels (this neologism has been coined by Mr. Justice Krishna Iyer) while watching the development and appreciating immediate requirements in the society are supposed to come out of textual constraints, instead attempt to expand the ambit and reach of a particular provision of law through the process of judicial construction, to render immediate relief to the aggrieved persons. Hon’ble Supreme Court of India while retaining the commanding heights of judicial power pronounced many times emphatically in favour of independence of judiciary and judicial review observing thereby that these are unalterable features of constitution. It is in this context that the superior court through the medium of public interest litigation freely decrees rules of conduct for Govt and public authorities which are akin to legislation and oversees their working. In the case titled M.C Mehta v/s Union of India AIR 2001 Supreme Court 1848 ordered and supervised the use of clean fuel for vehicles in New Delhi and in its judicial wisdom framed schemes of admission in educational institutions throughout India and made right to education into a fundamental right from directive of state policy. This has been reported in Unnikrishnan v/s AP (1993) 4 SCC 111 and so on and so forth. There is crop of law to this effect. Probably this may be in view of these commanding heights of judicial power that the Hon’ble Supreme Court has been pleased to hold in a case titled S. P. Gupta V/S Union of India that a member of public can move the court even by writing a letter, thereby dispensing with the legal formalities as are contained in relevant rules etc. These interpretations have led to the development of new constitutional jurisprudence in the area of public interest litigation and human rights. Not only this, the devising of new strategies, forging of new tools and broad interpretations of letter of law speaks volumes on the par excellence creativity and initiative of judiciary. I think these innovative strategies evolved by the Judicial Sentinels at the highest rungs are rooted in Clause 1215 of Magna Carta, which reads as” NO ONE WILL WE SELL, TO NO ONE WILL WE REFUSE OR DELAY THE RIGHT OF JUSTICE “. Former Chief Justice of India Mr Justice J.S.Verma has been pleased to quote the examples of Indian kings like Vikramadity, Akbar and Jehangir, in his book titled “New Dimension of Justice” page 62, thereby saying that they had high sense of justice. Even the humblest of their subjects had an access to them for redressal of their grievance. They were never wanting in their Endeavour to do complete justice to their subjects. As per his lordship these historical facts indicate the inheritance of a rich legacy of dispensation of justice. He further eulogized Mr. Justice Mehmood and chief justice Sulaiman of pre-constitution era for their extra-ordinary judicial wisdom and creativity coupled with initiative. Even in Universal declaration of Human rights signed by 34 Chief Justices of Asia and Pacific in their 1995 enshrines: (a) the judiciary shall decide matters before it in accordance with its impartial assessment of facts and its understanding of law without improper influences, direct or indirect, from any source and (b) the judiciary has jurisdiction, directly or by way of review overall issues of justiciable nature (reference: judges and Judicial accountability by Cyrus Das and K Chandra P-88/89 published by Universal Law Publishing Co New Delhi) it is in this context that independent judiciary has been considered essential to the attainment of the judiciary rule of law, governance, objective and the proper performance of its functions in the free society.

From the above discussion it transpires that despite distinct and different areas of activity of three limbs of Government, Judiciary has much more important role to play in comparison to Legislature and Executive. This is even substantiated by Mr Jhon Marshal; the chief architect of doctrine of judicial review saying thereby to declare laws as unconstitutional is very essence judicial duty. Messers Walter, F. Murphy & Joseph Tenenhaus have started in their notable treaties titled “ COMPERATIVE CONSTITUTIONAL LAW CASES AND COMMENTARIES’’ page 8, that in New York Robert Yates, had stalked out of Philadelphia convention, complained “This power in judicial will enable them to mould the government, in, to almost any shape, they please. Furthermore he contended “Men placed in this position feel themselves independent of heaven itself”. But Jhon Marshall asked “To what quarter you will look for a protection from an infringement on the constitution, if you will not give the power to the judiciary”. There had been animated discussions and the debates with the regard to inferior or ordinary statutes/laws and constitution. In a famous case MARBURY V/S MADISON (I CRANCH 137. Ed. 60 1803 ), Chief Justice Mr Jhon Marshall held and reasoned that which was inferior must give way to that which was paramount and it was the constitution which had paramountcy. Now it has become clear that doctrine of judicial review has a paramount essence in safeguarding the sanctity of constitution, which is inviolable. All other laws or pieces of legislation, ordinance etc are supposed to remain within permissible constitutional limits, otherwise those are likely to be hit by the mischief of doctrine of judicial review.

Judicial wisdom is needed to interpret laws in strict sense of term? It was needed always. Legal experts are to be equipped with innovative tools to meet any exigency or situation where laws are silent? We have examples like Mr. Justice John Marshall, Mr. justice P. J. Shashtri, Mr. justice P. N. Bhagwati, Mr. justice Mehmood, Mr. justice Sulaiman Shah, Mr. justice Krishna Iyer, Mr. Justice Jagdish Sharan Verma and other like Judges to follow. A Judge is known for his remarkable intellectual integrity, ability, honesty and credibility so that they are judicially sagacious enough to appreciate the law or make the law as per the requirements of situation where legislature has been remiss in enacting law relating particular subject.

(The author is a legal practitioner. Feedback at uuffee@gmail.com)  

Lastupdate on : Tue, 3 Aug 2010 21:30:00 Makkah time
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