By Satya Narayan Misra in Bhubaneswar, December 7, 2024: Democracy is celebrating its victories over Nazism and Fascism in World War II and over communism at the end of the twentieth century. A key lesson of the holocaust is that people, through their representatives, can destroy democracy and human rights.

If democracy can be perverted and destroyed in the Germany of Kant, Beethoven, and Goethe it can happen anywhere. Since the Holocaust, all of us have realized that human rights are at the core of substantive democracy.

The protection of human rights, the rights of every individual and every minority group cannot be left only in the hands of the legislature and the executive, which by their nature, reflect majority opinion. Consequently, the question of the role of the judiciary in a democracy becomes paramount.

A survey of the de facto status of the judicial branches in various democracies shows that since the end of WWI, the importance of the judiciary relative to the other branches of the state has increased. We are witnessing a strong trend toward’ the constitualization of democratic politics.

People increasingly turn towards the judiciary, hoping it can solve pressing social problems. Several questions therefore arise: Is this enhanced status appropriate? Has the separation of powers become blurred? In recent years, accusations that the US Supreme Court is too activist have swelled. Socrates had said: An unexamined life is not worth living. An examination is therefore needed, both about what can be demanded of the judges and about what normative frameworks within which they operate.

Aharon Barak, a holocaust survivor and judge & CJ of the Israeli Supreme Court from 1995-2006 tries to answer these questions in his eminently readable book “The Judge in a Democracy “ (2023) with unusual percipience and candor. He believes that the goals of a judge in a democracy are twofold: to bridge the gap between social reality and law and to protect the Constitution and its values.

The former involves balancing the need to adapt the law to social change against the need for stability, and the latter, the judge’s accountability not to public opinion or politicians but to the internal morality of democracy.

The judge is a partner in creating law. As a partner, it must maintain the coherence of the legal system as a whole. The extent of this partnership varies with the type of law being created. In creating common law, the judge is a senior partner. In creating enacted law the judge is a junior partner.

All thinking about law haw has struggled to reconcile the conflicting demands of the need for stability and of the need for change. Stability without change is degeneration and change without stability is anarchy. The role of the judge is to help bridge the gap between the needs of a society and the law; without allowing the legal system to degenerate or collapse into anarchy.

Judicial protection of human rights is a characteristic feature of most developing democracies. Democracy rests on two bases; the sovereignty of the people (free election) and the rule of values that characterize democracy; like separation of powers, the rule of law, judicial independence and human rights. The formal aspect defines democracy and the substantive aspect quality of democracy. Democracy is a delicate balance between the majority rule and society’s basic values.

On separation of powers, Barak quotes the legendary Justice Brandies of the US Supreme Court (196-1939), who brought in the concept of the right to privacy: ‘The purpose is not to avoid friction, but using inevitable friction incident to the distribution of government power, to save people from autocracy. ‘All the same, Barak believes that there should be no wall between the branches of the government but bridges with checks and balances.

The judges use two major tools to adjudicate cases that come before them, the test of reasonableness and the test of proportionality. As regards reasonableness, he believes that there are pluralities of factors that need to be evaluated in respect of their relevance to a common focus of the case.

A zone of reasonableness containing all reasonable possibilities is created. On the proportionality test, the judges determine if the meaning rationally leads to the achievement of the objective, and measures taken by the administration must injure the individual the least. The proportionality test complements the challenge of reasonability.

The Indian Supreme Court in many of its landmark cases has used the proportionality test. A case in point is the Puttaswamy case where the legality of the Adhar card was being determined. The majority of the judges adjudicated that its welfare imperatives and objective to check the proliferation of black money would trump the fundamental right to privacy.

On the other hand, it struck down S 66 A of the IT Act 2000 which could penalize grossly offensive social media messages as a ‘vice of vagueness’ and have a chilling effect on freedom of speech, annulling thereby the restrictions imposed by the state under Article 19(2).

The judges of the Supreme Court of India have mostly protected the Constitution and its values. The lone exception was the ADM Jabalpur Case of 1976 when the majority of judges agreed that the right to life remains suspended during the imposition of emergency. Justice Khanna as the sole dissenter claimed that Article 21 was could not possibly be the sole repository of the fundamental rights f life and liberty as these are natural rights, predating the Constitution itself. Detention without fair trial, to Khanna, was an anathema to all those who value life and liberty.

In his book ‘Making Indian Constitution’ Khanna writes:’ A Constitution is not a parchment of paper; it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty & in the final analysis; its only keepers are the people. The imbecility of men, history teaches us, always invites the impudence of power’.

Both Justice Barak and Justice Khanna uphold the pristine values of the Constitution. While Khanna believes that the people are the keepers of the Constitution, for Barak, it’s the remit of the Supreme Court to protect it against majoritarian tendency to emasculate their values to subserve their political interests. They are only looking at the two sides of the coin of democracy.