The theory of separation of powers, implicity in Aristotle but first given independent expression by Harrington and Locke, is known in its modern form largely through the writings of Montesquieu.
Following Montesquieu, the three powers normally considered to be separable in the exercise of government are the legislature, the executive, and the judiciary.
The first formulated policy and enacts it as law, second carries out policy in action, and the third applies the law according to rules of procedural justice and resolves disputes.
The sign of the despot is to subsume these powers under one. In particular, the despot will never permit an independent judiciary, which might impede him for having his way in every dispute.
In despotism nothing in the structure of power acts as a brake upon power, and hence no freedom, the hallmark of democracy, can be guaranteed.
In order to limit power, the three constituents of the State must be separated as much as possible, and balanced against each other.
The principle was carried into reality in the US constitution, the first fully democratic constitution of the modern world.
For a successful democracy the existence of a free judiciary becomes. Without an independent judiciary, the system may be termed “democratic centralism” which is practically equivalent to despotism or dictatorship.
In any healthy democratic state, the independent of judiciary is sought to be maintained through certain norms in appointing judges along with a complicated procedure for removing them from office.
Furthermore, their salaries and allowances are not changeable at the whim of the executive or the ligature.
But above all, a free judiciary can only exist in a political system in which democratic principles are truly believed in and acted upon by all alike-executive, legislature and the citizenry at large.
Reciprocally, the judiciary in a democracy should have the courage to protect its independence and deliver impartial judgements free of fear of repercussions on career and prospects.
Certainly, a balance between the here limbs of democracy is to be desired, but immature bickering over respective powers should be avoided.
Unfortunately in India, as David Shelburne observes, “the judiciary is attacked in the name of the sovereignty of the Parliament.
While sovereignty of Parliaments is attacked in the name of democracy and the people; also, democracy and people are being attacked in the name of ‘national discipline’ and the struggle against conspiracy and subversions”.
In a democracy, there are institutional arrangements by which courts can declare the constitutional validity of the laws passed by the legislature or the actions taken by the administrative and the executive authorities.
Judicial review is essentially an American institution and is based on the simple logic that the constitution is supreme and confers limited powers on the executive and the legislature and if they overstep their limits, the judiciary must restrain them.
One of the important persons instrumental in building the American state was Chief Justice John Marshal. He strengthened and consolidated the unity and democracy of the US through a series of judicial decisions.
In a bid to rescue his country from the ill-effects of the Great Depression, the then President of USA, F.D. Roosevelt (1932-36) initiated his New Deal programme. Many feared that democracy in the US was in peril. But the situation was saved, as two-thirds of New Deal was invalidated by the Supreme Court (1935-36).
It was only democratic principle began to disseminate in the nineteenth century, and as democratic governments began to the set up in the twentieth century (especially after the Second World War).
That the role of the judiciary came to be increasingly emphasised in the consolidation and perpetuation of the democratic institution and democratic rooms.
Man’s passion for freedom is great, but freedom has often been limited b the ruling authorities throughout the history of mankind- “Men are born free, yet everywhere they are in chains” (Rousseau).
However, there comes a stage when even his bare minimum of freedom needed by the individual is sought to be snatched by those in power, because of this power is concentred in the hands of a single individual or a small group of people.
In such circumstances, people’s agony and bitterness become manifest. One such climatic situation was reached in the 1930s, when people were being crushed under the heavy hands of totalitarian governments in different parts of the world.
The experiences of history convinced the people that the democratic way was the only form of decision-making to preserve man’s natural liberty and to serve his interests.
However, as selfishness, greed and passion for power are inherent in human nature. It was feared that even a democratic leader may turn authoritarian and act arbitrarily at times.
Therefore, sufficient checks and balances were provided. As legislature and executive are generally dominated by the same political party. Sometimes they may enact and act without any regard to the people’s will and interests.
In that situation the judiciary remains the only institution to which individuals may appeal for help. And the judiciary is then expected to study any such executive enactment or action to find out whether it is anti-people or not.
Once the verdict goes against such an enactment or action, the executive and legislature are expected to retrace their steps if the democratic norms have to survive.
Though every form of government has a constitution of some sort, in a democracy the constitution is more steadfastly abided by because of its paramount nature in the political set-up.
The judiciary is the institution that sees that the constitution is not isolated and disgraced. Also, there are instances when a constitutional deadlock or dilemma renders the government helpless and when different interpretations are possible of a constitutional provision.
The judiciary here steps in as the expert and the authority on the constitution to defuse the crisis.
Lastly, as democracy leaves sufficient scope for different democracy leaves sufficient scope for different opinions and beliefs, sometimes there may surface two major and almost equally forceful opinions contradicting and conflicting with each other, holding out little chance of compromise.
If the government adopts either of opinions, it can be blamed of showing a partisan attitude and the result can be disastrous. The judiciary being regarded and respected as independent and impartial, the judicial verdict is generally accepted by all the parties and the crisis is resolved.
Instances galore can be cited of the leaders having been dethroned or having had to abdicate because of judicial verdicts. In Japan Mr. Nakasone and others had to resign when they were found guilty by the court.
In Bangladesh, the ex-president Mr. Ershad is in prison today because of judicial pronouncements. The judiciary also takes over the reins of power, through rarely, in case of a political vacuum or as in Pakistan recently after the resignation of both the president (Ishaq Khan) and the Prime minister (Nawaz Sharif).
In India, too, the judiciary has many landmark judgements o its credit. For example, the election of Mrs. Indira Gandhi was declared void in 1975 by the Allahabad High Court after which she ill-advisedly imposed national emergency.
Nevertheless, the role of the judiciary is generally limited because of the balance power tilting towards legislation in most of the democratic system and also because of the legislature or sometimes the executive head of the state, having power to appointments to the judiciary.
The debate on this issue has been going on for a long time and till now there has been no unanimity on the least defective procedure in such appointments.
In India, it is disturbing that the executive and the legislature have combined to demoralise the judiciary on the one hand and to make it ‘committed’ on the other. The service condition of the judiciary at the lower levels is deplorable.
Imagine a situation in which the judicial officers in Bihar and Delhi are forced to stage a protest march to focus attention on their plight. What type of justice can the public expect from a judiciary which has failed to get the justice?
Moreover, the polities of super session, transfer, demotion, extension of term on monthly basis as ad hoc judges, non-confirmation of the High Court judges, etc are disturbing trends in a democracy.
There are also examples where the judges have been threatened publicly by ministers and legislators. Again, whenever the judiciary declares any law passed by the legislature as constitutionally invalid, there has been a lot of hue and cry in the parliament.
For example, some of the judges of the Supreme Court were criticised when their decisions in the Golak Nath (1967). Bank Nationalisation and Privy Purses (1970). Keshavanand Bharati (1973), and Minerva Mills cases were not to the linking of the ruling party.
The judges were ridiculed by being called backward-looking and their philosophy was considered to be out of step with the times. In the Shah Bano case, the court verdict was nullified by constitutional amendment.
All these odds before the Indian judiciary notwithstanding. It has served to stabilise, consolidate and protect Indian democracy by giving many important verdicts.
A typical verdict was in the Keshavanand Bharati case because in this case the Supreme Court held that the Constitution has a certain basic structure which cannot be amended.
This concept of ‘basic structure’ limited the amending power of the Parliament. Again, in the Minerva Mills case, by striking down clauses 4 and 5 of Article 368, the Constitution Bench of the Supreme Court has rightly restored the doctrine of “Judicial Review” which the 42 nd Constitution Amendment Act, 1976, had very substantially curtailed. More recently we have had striking verdicts on the anti-defection acts.
In general the judiciary is in a sense weaker than Parliament, which claims to the representative of the people, the real sovereign in a democracy.
However, it plays an important role in the survival and strengthening of the people’s resolve to rule them and to protect their interests and liberty.
It is true that the judiciary has to depend on the executive for the implementation of its decisions but it does not mean that the executive or even those sitting in the legislature can ignore such decisions.
After all in a democracy he members of the legislature and the executive have to go periodically to the people (at the hosting) who have high respect for the judiciary in spite of occasional aberrations.
And as Chief Justice Venkatchelliah recently opined, unless we have respect in the judiciary, democracy cannot survive.