CCL Malladi thk wk 7

CCL Malladi thk wk 7内容摘要：

THINK PAPER – WEEK 7 – SAMHITH MALLADI In answering why the rule of law is not enforced in India, which is a constitutional democracy with human rights values entrenched in the Constitution and institutional imagination, it is important to look at historical obstacles that constitutionalism in India has faced. The suspension of fundamental civil liberties in the Emergency period in 1975, along with the largely meek attitude of the judiciary towards burgeoning misuse of parliamentary and executive power, are events that have left lasting (and dangerous) perceptions about the ‘rule of law’ and modalities of governance. The hangover from such periods of constitutional crisis linger, with the government and other political institutions still believing that the Constitution is just a vague document to be celebrated during elections and cast aside afterwards. Additionally, Upendra Baxi’s analysis of the judiciary being the primary articulators on behalf of the ideal constitutional state, as opposed to the political state, is pertinent in highlighting the expected political shortsightedness of the executive and other elected representatives.1 This translates into overarching concerns regarding the effectiveness of law enforcement mechanisms being lost in the quagmire of daily politicking. While the Indian judiciary’s resurgence in the post-Emergency period is heartening, it cannot single-handedly perform the functions of the executive or legislature without facing accusations of having violated the separation of powers doctrine. To solidify and sustain the rule of law, the other branches of the government need to step up to the table on issues of literacy, due process and so on. There exists a debate as to whether the rule of law is essential to constitutionalism and democratic values, or could the promotion of the latter lead to the eventual establishment of the rule of law. As aptly stated by Vijayshri Sripati, the vast array of rights, both civil and political and socio-economic, are useless without a judiciary to enforce them.2 B.R. Ambedkar and other members of the Constituent Assembly recognized that the mere adoption of a good Constitution would not culminate in the values of constitutionalism permeating the civil and political culture in the country, nor could it ensure good governance. 3 In India, the judiciary is the institution that is most suited to act as the vehicle that transports amorphous and little understood values of constitutionalism and democratic governance into the realm of solid legal principles (rule of law). The judiciary, as an institution, is critical to the crystallization of constitutionalism and democratic values and it’s eventual pervasion of public consciousness. History is testament to the correlation between the failures of 1 Upendra Baxi, The judiciary as a resource for Indian democracy < http://www.indiaseminar.com/2010/615/615_upendra_baxi.htm>. 2 Vijayshri Sripati, Towards Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead (1950-2000), American University International Law Review, Vol. 14, No. 2, 1998, p. 448 3 C. Raj Kumar, Constitutionalism and Judicial Governance < http://www.thehindu.com/todayspaper/tp-opinion/constitutionalism-and-judicial-governance/article1932166.ece>. the Indian Supreme Court to deal with the unconstitutional declaration of a national emergency, which was clearly eroded the rule of law, and the ineffectual trickling down of constitutional rights to the masses. On the other hand, having understood it’s institutional role as an agent for social revolution, the judiciary (led by the Supreme Court) has covered lost ground to make significant strides in introducing notions of natural justice into due process theory, expounding the crucial relationship between socio-economic rights and civil liberties – all of which are values embedded in the Constitution. To conclude, it would seem that the rule of law, understood and implemented by a robust judiciary, is essential for constitutionalism and democracy.