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“Examining the Institutions for Public Policy in India: The Role of Judiciary in creating the space for Citizen-Centric Governance”

 Pradip Kumar Parida

Introduction:

Governance legitimizes the ‘state’ actions and duties as well as responsibilities of a ‘citizen’ in a given ‘state structure’.  As per the law of the land ‘what is the entitlement of a citizen’, keeping in background the political history, socio-economic development, resources available with the government at that particular point of time, social structure, cultural factors, level of participation of the people etc. Hence   providing the space for legitimate entitlement of a citizen in a state and creation of  a conducive atmosphere to realize the best potential  within the individual concerned are the two key  tasks with the government, as far as governance is concerned.  This spreads into all the aspects of society – social, economic, political. This spreads from individual to local to regional to national to global level. The fact of the matter is that, automatically an individual becomes a member of global governance process, once he links himself and channelizes his activity from one level to other. It also clovers the arena of State, Civil society and Market. As all of them influences the decision making process and behavior of the individual – ‘citizen’. State makes the rules and regulation and implements them through the institutions – Legislature (Parliament), Executive (Bureaucracy) and Judiciary (Supreme Court, High Court and Lower Courts) other constituent bodies. In other words the separation of powers among the institutions of democracy propounded by Montesquieu and the check and balance among them ensures that none of them transcends the barriers allotted to them as per the constitutional provision of the country.

In common parlance it is presumed that ‘accountability, empowerment, participation, accessibility to basic services in public domain and transparency’ are at the heart of ‘governance’ system in any country. Hence governance refers to traditions, norms, institutions, practices, space to the citizens in terms of participation and the procedures by which individuals and groups exercise their power respectively in the making of public policy. It also gives space to the citizens by making them actively involved in implementation of various programmes. It gives importance to the mechanisms where the voices of the people can be heard properly. However accountability may not necessarily be considered as accountability from government side/ officials/ administrative machinery to people. It is also other way round, which means people should be accountable to   other fellow citizens as well as government, law of the land, constitutional obligations and duties as citizens for the day to day actions in a true civic sense, by maintaining the spirit of democracy.

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The Scenario across the Globe:

With the unset of Globalization process  in recent times it becomes more relevant to contextualize the   ‘space for citizens’ in the contemporary  governance process of any country, depending upon the  political system, administrative structure, public policy process, role and responsibilities of the government and the duties and obligations assigned to citizens. How the citizens participate in the governance process at the local level and more particularly the local bodies or organizations or institutions of local governance – be it political, economic, cultural activities, taxation system or decision making process. It becomes questionable, when there is lack of transparency and accountability from the local bodies/ local government in terms of sharing power or resources with the common people-  ‘citizens’ – which otherwise is the crux of the ‘decentralized democracy’ or  ’empowerment of people’ – the basic philosophy and objective behind formation of ‘local self government’- ‘self-ruling institutions’. In certain countries, the democratic form of government has proved to be ineffective for checking swindling of public funds for private gains. Mis-governance is found to be all round, especially in the developing countries, in rampant degree. The concept of ‘good governance’ derives its relevance in the context ‘lack of governability’ or crisis of governance system.

Millen Development Goal (MDG) of the United Nations  mentions about the minimum amount of development standards or parameters a country must achieve in this millennium, so that there will be universal minimum standard of living across the globe. It also mentions about removing corruption, red-tapism and creating more transparency, accountability, more information in public domain, more participation of the people in administration, regulation of revenue and taxation system etc. How does one achieve that goal? What are the mechanisms? When we talk about “Dignity with Development“, how much dignified our public policy in terms of giving the space to citizens. As we know the economic development will lead to creation of   more social opportunities and will widen the scope of human civilization in terms of sustenance. Has it happened in reality across the globe? These are crucial questions before us.

Critics of Contemporary Situation:

It is found that ‘Government’ is one of the most powerful institutions in our society in any system of governance. Due to free market, privatization, structural adjustment, deregulation and decentralization, the traditional role of ‘government’, has changed a lot. The actors of governance, i.e.  Corporate Sectors/ Large Industries/ Big Corporations having multinational presence are playing a significant role in ‘market economy’ and civil society or Non-governmental organizations are in ‘development sectors’ are playing important role in this context. It is perceived that the free private enterprise can bring economic prosperity- nationally and internationally. The advocates of ‘neo- liberal’ paradigm supported the idea that, governmental interference leads to slow growth, hence less productivity in economic sphere. On that ground, it was perceived that the less governmental interference will lead to give a free hand to market which will ultimately control itself by the self regulating mechanism. Naturally it will lead to more competition among the players and the winner will survive. It will create a spirit of free competition. But will it be fair? What about the unequals, marginalized, down-trodden, sub-alterns or the people who are not on equal footings with the others? Can they compete with each other in the same platform?

Though the proponents of neo-liberal favors minimalist role of government and prefers market can do everything on the basis of principle of market economy, the most important point is that  people in a democracy, are not merely ‘customers’ or ‘clients’ of the government. Rather they are  ‘subjects’ -‘ citizens’ and bounded  by mutual  obligations and are entitled to enjoy public infrastructure provided  by the government, such as roads, ports, communications, court of law, monetary system, public sanitation etc.  In this context, it is argued by many that the pure private sector management model cannot cater to the needs of the citizens. It may not give justice in the public domain, particularly in public distribution system.  As a matter of fact private goods are necessary. But they are worthless without public goods – such as policing and economic policies, meant to protect citizens. Similarly primary education, primary health care facilities, village roads in rural areas, public distribution system, ration to poor people, child care facilities etc. Though there are certain areas where public system along with private players can play complimentary role to each other. For example, media, it must not be fully under government   control nor should be it is entirely in private hands. However the objective of democratic government is to create a conducive environment and protect free people and supportive institutions, not necessarily free private groups or enterprises.

Role of Judiciary in the Democratic Governance of India

The framers of the Indian constitution preferred the west minister model of parliamentary democracy in India. However its implementation has created certain problems subsequently. Though   as per the norms of democracy, the institutions of democracy, i.e. executive, legislature and judiciary along with a  vibrant press and an active civil society is very much required for the successful function of parliamentary democracy, somehow or the other, that could not be maintained in India in last 65  years of function of the democratic polity. Some institutions started to erode gradually soon after independence. The microscopic examinations of institutions will give us an impression that institutions like- Parliament and Legislature has not come up to the expectation of the people in general and constitutions farmers in particular. However Judiciary, in spite of lot of pressure and encroachment of its due space from the side of other institutions tried to maintain its autonomy, independence, impartiality, neutrality to the largest extent. Not only that, but also it has started to play very pro-people role in subsequent years.

The famous judgments delivered by Indian Judiciary in cases like Champakam Dorairajan Vs. Government of Tamilnadu, Golaka Nath case, Kesavananda Bharati case, Minerva Mill case clearly reflects the idea of socialistic pattern of society in the back drop of fundamental right. The supremacy of Fundamental right over Directive Principle of State Policy and the tussle between Parliament and Judiciary in this context is very much pertinent to discover the fact that Supreme Court is the custodian of the fundamental rights of the citizens. The doctrine of ‘basic structure’ was implemented, when there was every possibility of encroaching the rights and powers of the Supreme Court from the Parliament side. The Supreme Court was of the opinion that Parliament has the sovereign authority to change any part of the constitution, but without altering the basic structure of the constitution as it was propounded by the framing fathers of the Indian constitution.

Similarly in the Meneka Gandhi case, it was interpreted that ‘the right to life’ also include to ‘live with dignity’ rather than merely animal existence. In the famous Bomai case, the judgment of Supreme Court has changed the whole frame work of Union-State relation. Subsequently Visakha Case (gender sensitivity in work place), Unnikrishnan case and many other judgments   reflect the concern of the Judiciary on the social significance issues.  The subsequent judgments on reservation policy which says reservation for SC, ST, physically challenged, marginalized sections of the society- 27% reservation for OBC, reservation for women in elected bodies of democracy at grass root level, right to education as a fundamental right, right to property of women over parental property and many other judgments reflects the proactive role of supreme court in its attempt to create citizen-centric governance.

In recent times the judgments of Supreme Court on Forest Rights Act, environmental clearance for big dams/ industries/ mega projects, Tribal Right Act, the closure of polluting industries on the corridor of rivers, conversation of diesel buses to CNG to minimize the pollution, the problems related to displacements and resettlement of people due to mega dams and big projects or construction of highways- the compensation involved in it, i.e. – Narmada Bachao Andolan case are milestone in this direction. The latest judgment which clearly says that in tribal areas land cannot be acquired without the permission from Gram Sabha with the consent of the majority. There should adequate compensation to them in terms of protection of their life and livelihood. It also mentioned about proper housing, cultural factors social issues, psychological issues related to displacement must be taken into consideration before taking final decision. The honorable Supreme Court asked the question “What do you mean by public purpose?” to government of India. If it is meant to build school, hospitals, roads, then it is understood. But by taking land from farmers and agriculturist and handing it over to private industrialist in a cheap rate won’t qualify to be public purpose.

RTE act where a poor children can take admission in a neighborhood good private school irrespective of parents income or education, admission of poor patients in big private sector hospitals, which was otherwise denied due to financial issues, were also considered as propos judgments. As the corporate players in health, education are getting land from union or state governments in cheaper rate respectively, it is their social obligation to look into the welfare of the socially and economically weaker sections of the society. The honorable courts have made it obligatory on their behalf. In other words if we look into public policies of our country in recent past, it is observed that there is a ‘right’ driven approach to all these- Right to Food, Right to Education, Right to Work/ Employment, Right to Health etc. All these are coming under the Right to Life. Similarly on the issues related to bonded labour, child labour, maid servant, domestic violence, unorganized sector workers, honorable Supreme Court has given land marking judgments on occasions.

 The revolutionary steps taken by the Judiciary in accepting PIL- even if a post card can be taken as filing a case by a poor person who cannot afford to go to court or even a third party- who is not at all related to this case can file a case by simply writing in a post card to Supreme Court and on merit of the case, proceedings can be initiated.  It has dramatically changed the whole notion of litigation particularly those having public policy implications. Through this number of issues related to society and public in general, be it environment, education, mining and many other issues are discussed by judiciary. Similarly resolving the legal disputes which are lingering on for years by resolving through mutual consent of aggrieved parties are taken into consideration. The completion of   the social litigation problems by Lok Adalat, where and the various alternative dispute resolution (ADR) mechanism adopted by the Judiciary has shown exemplary initiatives for social purpose. Similarly right to privacy in the cases related to rape, molestation and other inhuman activities, judiciary has been vocal in stringent punishment to the perpetrators of the crime as well as protection of the privacy and liberty of the person concerned. In recent time it has came out with number of land marking judgment, Nirbhaya case being the watershed among all of them.

 In the enactment of Right to Information Act which ahs accelerated the process of putting information in public domain by the public authorities to the needy citizens.  It has not only aimed at removing red tapism, but also removing corruption, unnecessary bottlenecks, increasing transparency, accountability  as well as  putting the information in public knowledge. Similarly enactment of LOKPAL bill and in framing the corruption free society in India, the Indian Judiciary in general and Supreme Court in particular has played significant role in recent times. It has instructed the other branches of democracy- Legislature and Bureaucracy to be pro active in the citizen centric governance system. Reason being the space created due to lack of proper activities by other institutions of democracy has led to vacuum, which is now filled up by the Judiciary to certain extent. Rather it is found on number of occasions, the other institutions protest a lot, wherever they found a threat from judiciary in terms of their inactiveness or surpassing their limit, they do something, unconstitutionally. Which is otherwise might create an imbalance among the institutions of democracy. Instances are there where institutions, i.e. – parliament, executive or media tried to influence judiciary on occasion, going against the norms of democracy. In the context of CBI it has termed as a ‘parrot in cage’   and argued for its autonomous status and free hand from the clutches of the ruling regime at the centre.  It has also taken seriously matter related to tainted politicians who are contesting elections and has given the judgment to debar candidates having criminal records or punished by various courts of the country.  Similarly in the ballot system introduction of an option named ‘none of the above’ in the ballot paper is reflection of the space given to ordinary citizens to have a strong opinion in terms of candidature and to have an independent opinion in this regard. Credit goes to honorable Supreme Court in this regard.

Conclusion:

Democratic governance won’t have any value to an ordinary Indian citizen until and unless all the sections of the society are benefitted   from the policies and programmers of the state. That would require all the institutions of democracy to be fully transparent and accountable to the people who would have a substantive role to participate in the decision making process as well as implementation. Then only the problems of the marginalized, voice less, the sub-alterns will be addressed properly. However the proactive role shown by Indian Judiciary starting from the lower courts to High Court to Supreme Court and the institutions like National Human Rights Commission (NHRC) and State Human Rights Commission (SHRC), number of organizations/ NGOs working in the domain of Civil Society for the protection of basic rights/ fundamental rights/ human rights of the common citizens of the country, are positive signs in this context. People have not lost the trust and still hope and confidence upon certain institutions of democracy. Reason being the other institutions of democratic governance in India has not come up to the expectation level of citizens, where as Judiciary is playing a significant role in this context to restore the life of a citizen with dignity. Hence the space, image, autonomy, independent nature of judiciary must continue to strive for the future success of democracy in India. None the less the activities and responsibilities of other institutions of democracy will be equally responsible to create an atmosphere conducive for function of democracy.

References:

  1. Bhaduri Amit & Deepak Nayar, The Intelligent Persons Guide to Liberalization, Penguin, New Delhi, 1996.
  2. Soros George, On Globalization, Viva Books Private Limited, New Delhi, 2004.
  3. Mathur, Kuldeep, From Government to Governance, NBT India, New Delhi, 2008.
  4. Bhagwati Jagdish, India in Transition, Clarendon Press, Oxford, 1995.
  5. Kashyap, Subash, Our Constitution, NBT, New Delhi, 1998.
  6. Basu, D.D., Constitution of India, Prentice Hall India, New Delhi, 1998.
  7. Bhaduri Amit, Dignity with Development, NBT, New Delhi, 2004.
  8. Jayal, Nirja Gopal(ed.), Indian Democracy, OUP, New Delhi, 2006.
  9. Mahajan, Gurpreet, Multiculturism & Democracy in India, OUP, New Delhi, 2004.
  10. Hasan, Zoya ( ed.), Democracy in India, OUP, New Delhi, 2008.
  11. Parekh, Bhikhu, Multi-verse of Democracy, Orient Longman, New Delhi, 2000.

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