Uttarakhand Judicial & Legal Review

GOOD GOVERNANCE: AVENUE TO A FAIR

LEGAL SYSTEM

Ritika Semwal*

“In order to achieve good result, a pious-objective is determined

first and then followed by good Karma for its accomplishment.”
-Rig Ved

From recent times, the term “good governance” is increasingly

being used worldwide in the field of development literature.
The concept was officially introduced for the first time to the
world in 1944, when, in the Brettenwoods Conference, the major
International financial organizations like the World Bank, IMF and GATT
were created and they began to express their core objectives in terms of
redistribution with growth and basic human needs. A wide raft of good
governance measures were included which aimed at strengthening and
modernizing the institutions of Government, rooting out corruption and
reinforcing the rule of law within countries. These major donors increasingly
based their aid and loans on the condition that reforms ensuring “good
governance” are undertaken.
While the concept of Good Governance is relatively new and has
been in limelight since 1990s, its core principle is not new to the Indian
Society. In ancient India, the king or the ruler was bounded by the Wheel
of Dharma where code of conduct or the rule of law was considered
superior to the will of the ruler. The key elements of Kautilya’s
‘Arthashastra’ extensively deal with polices of state craft and welfare
administration which hold relevance even till date.
As per United Nations (Human Rights), there is no single and
exhaustive definition of “good governance,” nor is there a delimitation of
its scope, that commands universal acceptance. The term is used with
great flexibility; this is an advantage, but also a source of some difficulty
at the operational level.

* Judicial Magistrate, Haldwani (Nainital)

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Depending on the context and the overriding objective sought,

good governance has been said at various times to encompass: full respect
for human rights, the rule of law, effective participation, multi-actor
partnerships, political pluralism, transparent and accountable processes and
institutions, an efficient and effective public sector, legitimacy, access to
knowledge, information and education, political empowerment of people,
equity, sustainability, and attitudes and values that foster responsibility,
solidarity and tolerance.
In general terms it means a system where laws are made and
implemented justly, the human rights are respected, and development is so
coupled with the preservation of basic social values of the society, that
the equity in terms of socio, economic, and political fairness are ensured
to each and every citizen. It includes effective participation in the shape
of representative democracy and justice in forms of rule of law.
Worldwide Governance Indicators, since 1996 till date, captured
six key dimensions of governance:
i) Voice & Accountability
ii) Political Stability and Lack of Violence
iii) Government effectiveness
iv) Regulatory Quality
v) Rule of law
vi) Control of Corruption
The United Nations Development Organisation (UNDP) has
recognized nine indicators of good governance:

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The various indicators and features of good governance are directly

linked processes and ultimately lead to the upliftment of the society,
especially in developing countries like India and other third world countries,
the good governance does not only have a directive mandate but also a
desired one. In the UNDP Report 2013 released in March this year, India
has been ranked 136th among 187 countries evaluated for Human
Development Index (HDI) - a measure for assessing progress in life
expectancy, access to knowledge and a decent standard of living or per
capita gross national income. In such a scenario it has become absolutely
essential that India works towards realization of various attributes of good
governance into its functioning.
In India, legislature has been continuously working towards
achieving these (above mentioned) objectives. Examples can be seen right
from the Constitution in its Preamble and provisions relating to Fundamental
Rights, Fundamental Duties and Directive Principles to the Right to
Information Act 2005, Environment related legislations, Gender Specific
Laws and Age Specific Laws. These are a few other examples of good
governance which form the basis for development and transparency and
ultimately lay the foundation for the rule of law.
Globalization is happening not only in relation to market but in
respect of all conceivable aspects of organized life to fast changing legal
climate in all these matters influencing both policy development and
administration. It is now slowly getting metamorphosized into glocalization
so that it custom-fits into the respective structure of each society. Another
legal dimension includes the jurisprudence of sustainable development,
which requires combative deliberance by society, government and the
international community. The Doha Summit by the UNFCCC and the
upcoming Rio Summit follows this trend and India is an active partner to
it.
E-governance is another commendable initiative in this respect,
where a National E-governance Plan has been launched by the government.
Policy making, budgets, accountability, decision making and service delivery
are all embedded within a virtually integrated chain. The aim is to keep
the approach citizen centric and not technology centric. Multichannel access
for example, web, phone, text messages are made available in various
fields. The latest effort in this direction has been seen by the Indian
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Judiciary who has taken up the E-Court Project to deliver ‘justice’ door to
door. Efforts have been made to couple E-governance with the theme of
social inclusion in this respect. PPP (Public Private Partnership) has been
a welcome initiative, UID (Unique Identity Project) ADHAR is one very
explicit example of it.
Public Private Partnership can assume a wide spectrum of shapes
like BOT (Built operate transfer), BOO (Built Own Operate), BOOT
(Built own operate transfer). The idea is to arrive at the right combination
of public sector accountability with private sector efficiencies and to also
share the risk correspondingly.
Elements of Good Governance in Justice Delivery System: The
Rule of Law.
The prosperity and development imbibed in the good governance
can be traced into a robust Justice Delivery System of a country. It depicts
that the democratic values are not superficial and are deeply rooted. It is
only through ‘Securing justice’ that the basic human rights of the people
are effectively protected. There are several inter-related aspects of securing
justice; the most important public good is the ensuring the security of life
and property. This needs determination towards relentless support extended
to the instruments of democracy.
Access to Justice is based on the basic principle that the general
public know and rely upon the proper application of law. Some citizens
are not aware of their rights and some are though aware, but are completely
deprived of them. Methodical and systematized solutions are, therefore,
needed to fortify access to justice. The provisions under the Constitution
under Article 22, Code of Criminal Procedure 303, 304 support this cause.
There has been creation of SALSA (State Legal Services Authority) at
State Level and DLSA (District Legal Services Authority) at District Level
in every State. These bodies ensure free legal aid to those who cannot
avail them or cannot afford them. They provide the deprived, an opportunity
to make a legal representation before Court of Law, thus fostering equality
before law, in a substantial way.
The concept of good governance is associated with the citizen's
right to life, liberty and pursuit of happiness, for example, in Bhutan the
development and prosperity is measured in terms of a National Happiness
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Index. But in a democracy it can only be secured through the rule of law,
under which no one is above law, not even the Government. It is a function
of the Judiciary in India to see to it that rule of law is guaranteed to all its
citizens. To achieve this objective, the constitutional assembly took pains
to ensure formal and procedural justice by making provisions for an
independent judiciary in the Indian Constitution. In India, Courts have the
final authority to test administrative action on the standard of legality. An
incumbent effect of this phenomenon is Judicial Activism. A large number
of Public Interest Litigations (PILs) are filed in High Courts and the
Supreme Court against the impassiveness of the executive.
India is the world’s largest democracy. In this age of technology
and IT revolution there are a number of serious problems that need to be
met in the years ahead like: divisive tendencies, extremism, unemployment,
regionalism, illiteracy, corruption and nepotism. To combat them there is
need for empowerment of people and participative development. Good
governance is the foundation of participatory development. Social inclusion
through Panchayati Raj Institutions, Local Urban Bodies, labor centric
decentralized participatory planning, compulsory education laws, work site
facilities, employment generation for poor (eg. MNREGA, National
Livelihood Mission) and above all accountability and control through social
audits, civil societies and right to information are unique and unprecedented
efforts in strengthening the pillars of democracy and grass root development
ensuring good governance.
Good governance requires fair legal frameworks that are enforced
impartially. It also requires complete protection of human rights, particularly
those of who are marginalized or belong to the category of minorities. An
impartial enforcement of laws requires an independent judiciary and an
impartial and incorruptible police force as, the establishment of law and
order is crucial, but its maintenance is critical.
The Right to Information Act 2005 has been enacted to usher a
new era of empowerment of common man in India. This legislative initiative
has emerged as one of the most effective instrument to check corruption
and one can examine, audit, review and access the government works
and decisions to ensure transparency, openness, accountability, effectiveness,
efficiency and responsiveness in administration. To a big extent, the Right
to Information Act has actuated the enforcement of the rule of law.
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Mahatma Gandhi advocated the concept of ‘Welfare State’ based

upon the principles of good governance, which meant a state where the
necessities of down-trodden and welfare of a commoner through indigenous
industries would become a hallmark. India during the past six decades has
quite evidently worked towards establishing good governance and aims at
expansion of social and economic opportunities, removal of poverty and
efficient delivery of services at grassroots.
Today, as we are entering into an era of capitalist innovation, the
international market laws have developed a tendency to exclude a large
number of people and even threatened to dominate our natural environment.
We are increasingly linked to the global market, thus the need of the hour
is to have a decentralized process of planning, implementation and
monitoring of the programme and projects. Public Policy (the official and
formal intended picture) and practice (the reality) should not have a huge
gap and be seen in isolation with each other. The institutions designed for
its implementation that is, the Legislature, the Executive and the Judiciary
must demonstrate their integration and work towards bridging the gap
between the two. The quality of democracy along with commitment and
caliber of public servants both in executive and judiciary would determine
the outcome of country's performance in all key areas. It is only this
commitment and collaborative effort on part of the Government and the
society that, may lead to transparent, corruption free, value and ethics-
based governance and lead to the emergence of an equity and an egalitarian
value-based society.
“If men of knowledge, men of power and men of wealth come
together; and there is no difference of opinion among them, then the
nation is bound to prosper.”
-Rig Ved

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