Chethan Prabhakar
chetanprabhakar@gmail.com
Good governance is not defined by efficiency alone, nor by electoral success or administrative speed. It is defined by restraint. The restraint of power, the discipline of authority, and the willingness of the State to remain accountable to law, reason, and constitutional values. When this restraint weakens, governance begins to drift. It is at this precise point that the judiciary assumes its most critical role-not as a rival to governance, but as its conscience keeper.
In a constitutional democracy, governance and constitutionalism are not parallel tracks. Governance must operate within constitutional boundaries, and when it does not, judicial conscience is compelled to intervene. This is not judicial overreach; it is constitutional necessity.
Rule of Law: The Moral Architecture of Governance
The rule of law is the first and non-negotiable condition of good governance. It mandates that power is exercised according to law, not will; through institutions, not individuals; and with accountability, not impunity. Where rule of law prevails, citizens are governed by known rules. Where it collapses, they are governed by discretion.
Governance that departs from the rule of law does not merely become illegal-it becomes illegitimate. Arbitrary arrests, selective enforcement, vague policies, and unchecked executive discretion are not administrative lapses; they are constitutional failures.
The Constitution does not permit the State to act merely because it can. It permits action only when such action is lawful, reasonable, and just. This is the threshold that good governance must continuously meet.
Constitutional Morality: The Invisible Restraint
While the rule of law supplies structure, constitutional morality supplies direction. Governance may technically comply with statutes and still violate the Constitution’s soul. Constitutional morality requires the State to act in fidelity to the Constitution’s values-liberty, equality, dignity, fraternity, and secularism-even when doing so is inconvenient or unpopular.
Majoritarian power often mistakes numerical strength for moral authority. Constitutional morality rejects this confusion. The Constitution does not exist to endorse power; it exists to restrain it. Governance that ignores this restraint ceases to be constitutional, even if it claims democratic legitimacy.
This is where institutions are tested-not in calm times, but in moments of pressure.
The Judiciary: Not a Governing Body, but a Moral Sentinel
The judiciary does not govern. It does something far more uncomfortable-it judges governance against constitutional standards. In doing so, it acts as the conscience keeper of the democratic State.
Judicial review is not an obstruction to governance; it is a corrective mechanism that prevents governance from degenerating into authority without accountability. Courts intervene not because they prefer to, but because constitutional violations demand correction.
When executive action violates fundamental rights, when legislation undermines constitutional guarantees, or when administrative discretion becomes arbitrary, judicial conscience is triggered. Silence in such moments would amount to constitutional abdication.
When Governance Fails, Judicial Conscience Must Prevail.
There are moments when governance fails-not administratively, but constitutionally. These failures occur when:
Power is exercised without justification
Rights are curtailed without proportionality
Dissent is treated as disloyalty
Institutions are weakened for convenience
At such moments, the judiciary is constitutionally obligated to step forward. Not to govern, but to remind the State of its constitutional limits. Judicial conscience is activated precisely when other forms of restraint collapse.
This principle is not exceptional-it is foundational. A judiciary that refuses to act when governance fails ceases to be an independent institution and becomes a passive observer of constitutional erosion.
Fali S Nariman and the Ethics of Judicial Duty
Few constitutional thinkers articulated this responsibility as clearly as Fali S. Nariman. He repeatedly warned that constitutional democracy is not self-executing. It survives only when institutions possess the courage to enforce constitutional limits.
Nariman emphasized that the judiciary’s legitimacy flows from its commitment to constitutional morality, not from public approval or executive comfort. According to him, courts must remain indifferent to political pressure and steadfast in constitutional fidelity. A judiciary that seeks popularity compromises its conscience; a judiciary that fears confrontation compromises the Constitution.
His writings underscore a hard truth: judicial restraint is virtuous only when governance is constitutional. When governance violates constitutional norms, restraint becomes surrender.
Judicial Conscience versus Judicial Overreach
Critics often label robust judicial intervention as “overreach.” This criticism misunderstands constitutional design. Overreach occurs when courts replace policy choices with personal preferences. Conscience-driven intervention occurs when courts enforce constitutional boundaries.
There is a decisive difference between governing and guarding governance. The judiciary crosses no line when it invalidates unconstitutional action. It merely restores constitutional equilibrium.
The real danger lies not in active courts, but in silent ones.
Institutional Balance and Democratic Survival
The separation of powers does not mean isolation of powers. It means mutual restraint. The executive restrains itself through constitutional morality; the legislature restrains itself through constitutional fidelity; the judiciary restrains both through constitutional enforcement.
When one branch exceeds its limits, another must respond. This balance is not adversarial-it is essential for democratic survival.
Good governance flourishes not when courts are weak, but when governance respects the possibility of judicial correction.
Governance Needs a Conscience
Governance without conscience becomes control. Law without morality becomes coercion. Democracy without judicial vigilance becomes hollow.
The judiciary stands as the final constitutional conscience-not because it is superior, but because the Constitution demands it. When governance aligns with constitutional values, courts defer. When governance fails, judicial conscience must prevail.
This is not judicial activism. This is constitutional duty.
As Fali S. Nariman cautioned, democracies do not collapse in coups; they erode through neglect of constitutional morality. The judiciary exists to arrest that erosion-to remind power of its limits and governance of its purpose.
Good governance is not about how much power the State wields. It is about how faithfully it restrains itself.
(The author is an Advocate)
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