Justice A.K. Sikri, Judge, Singapore International Commercial Court, a former judge of Supreme Court of India; Justice Michael D. Wilson, sitting Judge of the US Supreme Court; Justice Matthew F. Cooper, Justice of New York County Supreme Court, USA; Professor C. Raj Kumar, founding Vice Chancellor of Jindal Global Law School, speak to Tarun Nangia on the Legally Speaking program aired on NewsX about Democracy, Courts and Rule of Law.
T.N: Hello and welcome to Legally Speaking with me Tarun Nangia today we are going to discuss a subject which is important for any healthy democracy the subject is ‘Democracy, Courts and Rule of Law’. our panellist for this discussion is Justice AK Sikri, Judge Singapore International Commercial Court he is also a former judge of Supreme Court of India and incumbent chairperson of News Broadcasting Standards Authority. Justice Michael D. Wilson a sitting Judge of the US Supreme he was appointed to the Supreme Court after having served as the circuit court Judge of the first Circuit since May 2000. Justice Matthew F. Cooper he is the Justice of New York county Supreme Court USA he is the chair of Justices of the board of the Supreme Court first judicial district he is also on the executive boards of the New York state and the New York city associations of the Supreme Court Justices. Professor C. Raj Kumar with us today on the show he is a well- known public intellectual and the founding Vice Chancellor of the Jindal Global University road scholar. Professor Kumar has academic qualification from the University of Oxford and the Harvard University s as you can see we have diverse panel we have people from the academics as well as some new set up universities we have got former Judge of Supreme Court who is also now of with us Singapore International Commercial Court as also we have Judges from Supreme Court from America let’s begin our discussion today I will start with Justice AK Sikri for his opening comment on the state of affairs between Democracy and Judiciary Sir your opening comment?
Sikri: Look there is no doubt that we are still in the trial stages much has been achieved in the You see over a period of time if we see the history, I mean there have been different kind of systems of how the society is to be governed it is not necessary to go int all that debate but what is important is that in last hundred fifty to two-hundred years or even little over two hundred years if we gave the example of US the constitutionally governed democracy have come up and the trend got momentum after the second world war and you know the hollow cost which it created and it was thereafter felt by various countries that look there should be systems which are governed which should be governed by some written instruments and over a period of time and many countries now more than hundred countries have their written constitutions now in all those constitution you will find that they have to be democratically governed in very simplistic terms if we say that the democracy is where the people elect their own representative and the majority rules but the decision who should be the ruler or the governance should be at who’s hands that is to be decided by the people of the country and that the particular country the society which decides it and therefore our constitution also like US constitution says and most of the constitution say we the people even the constitution is created by the people for themselves now as I said this is a very simple way of narrating of what the democracy is that it is the I mean governance by the people for the people and for themselves but then at the same time it is only not I mean limited to this election take place the people vote and the people which over political party wins majority and forms the government and would rule but then at the same time the constitution and all constitution including of US and India there is a system of governance there. There are some parameters which are laid down that how the society governance would take place and we know in all these democracies there are three pillars of the state of which they are known as Legislature which is one which makes Law Executive which enforces the Law and which implements the Law and Judiciary which enforces the Law so the three these pillars of the state it is also like in our constitution it states that the both will their rights their powers are defined in the constitution so they have to work within the limits which are defined in the Constitution and we have the System of Separation of power as well that one wing of the State would not interfere with the work of the other wing of the State at the same time in this entire process and without giving this thing in detail which we’ll discuss later but then at the end of the day in the Indian Constitution which we again concept which we took from United States called Institution was that is of Judicial Review that is that ultimately it is the Judiciary which has to a Judge if it comes as a Judicial review whether a particular legislation enacted by the parliament or the State Legislature is constitutionally enacted or not or whether a particular this is called Judicial review of Legislation and weather a particular Act by the executive is Legal or not this is judicial review of administrative action so therefore ultimate power is given to the judiciary and in this as I said there are check and balances in the sense that one limb of the government checks the other limb of the government all that is provided so this we can broadly we can state is the way the democracy functions but as I said when we proceed further we’ll try to deal with other as well.
T.N: Okay interesting comment Justice Wilson your opening comment on the state of affairs in relation with the Democracy, Judiciary?
Wilson: Thank You! Tarun and being an India provide the context for this idea of Democracy and the Judiciary because as Justice Sikri pointed out there is being a long history hundreds of years with respect to the United States of the idea of the Rule of Law applying by the Judiciary to make sure that the laws are being followed by everybody regardless that the power they have the they have. The laws has to be followed by the legislature and it has to be followed by the executive and the Courts have the great opportunity and responsibility to define what it means to follow the Law but if you move into a contemporary context what is democracy in terms of the rule of law now if it is seem from an international prospective because so many issues have become broadly international and part of the reason that my brother Justice Cooper is here and I am here is to get some knowledge into some extent leadership about this very important international issues because if you think what the future is going to be like in the Court rooms take prevalence for example the idea of power being given to government is absolutely beyond any president the power to keep track of every citizen well if we are to be concerned about freedom and the freedom of individuals under constitution and our constitution are very similar they both have a focus to be given on we the people so the democracy is supposed to be power it comes from the people if you are concerned about the everyday court to have gone decide how much a person be serval in the future this is the role of courts Internationally and finally if you take the eight hundred fifty million people that are of an age less than thirty in India and look at their future fifty years from now when for example bank with has to be evacuated with the hundred and sixty million people there will so many issues that are International there are great Supreme Court like India will have to face to some extent before our courts in United State because India just happens to be on the cutting edge of that very- very serious issue of climate change so cotemporary democracy contemporary judiciary means to some extent know we have to be thinking Internationally thinking together.
T.N: Some very interesting points by Justice Wilson I will go up to Professor Raj Kumar you have someone who have had the experience of staying in about two three countries as far I know you spent time in Hong Kong, America and the UK and experienced democracies in theses country especially because you are associated with the field of Law How would you look at Democracy in relation to Judiciary and Rule of Law in different countries?
Kumar: So I mean as our Judges said that at least in the Indian context we never had a choice of not having a Democracy the founder of our republic were very conscious of the fact that they were trying to create a society which was so diverse so much of inequality so much of different religion and caste and languages so democracy became an opportunity for buying the people and so there was no choice of whatsoever for India it’s not a choice to be a democracy it’s an imperative and India can be nothing but a democracy but having said that the founders were also conscious of the fact that they were creating they were participating in the freedom movement and they were resisting you know what is what was another democracy in its own light and which was implementing an authority in the form of governance in India and so and it was ruled through Law and so when they were writing the Constitution they were conscious of the fact that they were actually creating a Constitution for themselves but at the same time they were creating a situation whereby those people who are going to hold power within that Constitution should be made accountable as well and it was quite an extraordinary movement because rarely in history where the people who are writing the Constitution are also directly involved in the creation of a new republic and will also be the early holder of the power and so because they participated in the freedom movement themselves they are conscious of the autocratic and un democratic rule that they were witness to they were very conscious of infusing a lot of provisions in the Constitution which protect the rights and the freedoms but also they recognise the role of the courts and that made it so you know in many ways set as tone for how the relationship between the Legislature the executive and Judiciary will be and of course to many more years later and the functioning of our Democracy for us to determine what is the nature of the relationship because clearly of you look at the UK context parliament is Supreme but India went through a lot of evolution for us to ultimately determine that actually in India it’s not the courts are supreme it’s not the Legislature it’s not the it’s the Constitution which is supreme and that is an evolutionary idea and in many ways also a revolutionary idea for it to have the deeply embedded in the political culture of India.
T.N: Interesting points as I see made by Professor Kumar also because you see the kind of countries that got independence in South Asia how many of them are democracies today or mascaraing democracies today, we all know that but that’s another discussion Justice Cooper your comment on this important issue?
Copper: I was hoping that you would have come speak me after Justice Wilson because he is sounds smart so brilliant but I will do my best and this is unlike Justice Wilson is my good friend this is my first visit in India Justice Wilson had been many times and my wife and I have been instruct by so many similarities between India and United States these are five of entirely democracy and I have also been instruct by the significant major points in governing that we share we are two nations that have written constitutions we have all this written constitution you have the privilege of being the largest democratic constitution of the democracy in the world and the things I have learned other than of course that we start with saying preamble we the people we have very powerful fourteenth amendment of our constitution about great of our social change has come through court decision that have applied to the fourteenth amendment you have twenty one of the constitution which externally involves major concepts of we find in the fourteenth amendment but I go with other members of this discussion have said is that unlike other countries we have our nations have commitment and hopefully will continue like amendment to have a three branches of government that are being recognise as how important to have check and balances both our countries are faced from challenges where those checks and balances might be called into question and we have system of the government where the body that determine what the constitution says the body that interprets the constitution is power Supreme Court in our case Supreme Court of the United States and in your case it is Supreme Court of India.
T.N: So now taking on from here I’ll go to Justice Sikri Sir I want know to know from you the specific thing on in India at least as I have seen and I can speak from the Indian expressly are Supreme Court has been called upon to tackle different types of crisis from water disputes between states to midnight formation of governments and you know courts have come to the occasion as we have covered midnight hearings at 4:30am hearing in the morning and sir there is a sense that I get when I speak to speak people across the country specially who ae from the government and the easiest way not to decide something and absolve myself from the responsibility is just tasset to the court and let them decide so when I told the executive when it doesn’t want to work just put the ball in the courts court and let the court decides do you think the courts are being made to do thing which was wouldn’t have been in a sense excepted of them to do but knew they are doing everything from policy making to the kind of dispute but you the best Judge so I would?
Sikri: Let me deal with this what this issue which you have thrown upon in two ways one is where we left all of us in our preliminary round where when you ask first question so when in this entire context and what are the conditions in which we are going and what is the international scenario as Justice Wilson also pointed out how the India Supreme Court has evolved and then come to the issue which you have raised because their they would be some connect between the two now we were taking about democracy and the rule of courts you see one simpler way as I said earlier what is the role of the court to decide the dispute between the parties which are filed in the courts.