By Aishwarya Dhakarey, SLS Pune
Editor’s Note: This paper examines whether there does exist a basis for implementation of the concept of ‘rule of law’ in India. The paper further goes on to examine the various cases where the concept has been applied and interpreted.
The Preamble to the Constitution of India records the solemn resolve of the people to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation, within the framework of a sovereign, socialist, secular, democratic republic. Rule of law is one of the pillars to the Indian Constitution.
When the idea of the rule of law is interpreted as a principle of constitutionalism, it assumes a division of governmental powers or functions that inhibits the exercise of arbitrary state power. It envisages a fundamental separation of powers between legislator or lawmaker, on the one hand, and those who ‘execute’ or administer the laws, on the other. The rule of law also assumes the generality of law: the individual’s protection from arbitrary power consists in the fact that his personal dealings with the state are regulated by general rules, binding on private citizen and public official alike. This essay discusses the rule of law and equal justice, legislative authorization of executive power with emphasis on common law rights and public purposes, and the procedural legality.
The Rule of Law
The rule of law is an inspiring concept like Justice, Liberty, Equality and Fraternity and has several shades of meaning. The core idea was put across by Sir Edward Coke, Chief Justice of the Common pleas in England in his reply to the question of King James I, whether the king himself could determine disputes, as the law was founded upon reason which he had as much as the Judges and others. Coke’s reply was: “true it was that God had endowed His Majesty with excellent science and great endowments of nature, but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience before that a man can attain to the cognizance of it; and that the law was a golden metewand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace” . The King was greatly offended and said that it was treason to affirm that he should be under the law. Responding to this Lord Coke quoted Henry Bracton, Judge of the King’s Bench who said “the King ought not to be under a man but under God and the Law”. If there were no law there would be no king and no inheritance.[i] This was emphatic assertion of supremacy of law. Professor A.V. Dicey, in his Introduction to the Study of the Law of the Constitution attributed three meanings to the rule of law. In the first place, it meant absence of arbitrary power on the part of the Government. Next it meant that no man was above the law and every man, whatever be his rank or condition, was subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals, i.e. equality before the law or the equal subjection of all classes to the ordinary law of the land, administered by the ordinary law courts. The third meaning given by Dicey was that the Law of the Constitution was not the source but the consequence of rights of individuals, as defined and enforced by the Courts. This last meaning does not apply to written Constitutions incorporating the rights of individuals which are enforceable by Courts. Sir Ivor Jennings commented that Dicey’s view was influenced by the doctrine of laissez-faire and pointed out that the Rule of Law implies many notions which are imprecise such as, the State regulated by law; law and order; separation of powers; equality etc. “The truth is that the rule of law is apt to be rather an unruly horse”[ii]
The “rule of law” is part of the basic structure of the Constitution of India[iii]. Although in the Constitution there is no mention of it as such. The different meanings of the rule of law can be gathered from decided cases. It means the absence of arbitrary power. “Discretion when conferred upon executive authorities must be confined within clearly defined limits…. Decisions should be predictable and the citizen should know where he is”. Rule of law is the sworn enemy of caprice. “‘Discretion’ means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague and fanciful[iv]”. Another meaning of the rule of law is that a party to whose prejudice an order is intended to be passed, is entitled to hearing. “If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity[v]”. The rule of law also means that every act done by the government or by its officers must, if it is to operate to the prejudice of any person, have the authority of law to support it[vi]. Where there is rule of law, the law is supreme. Everyone, however high he may be, is under the law. The judiciary is the guardian of the rule of law.[vii]
In the words of Justice H.R. Khanna, “liberty, democracy and the rule of law are indices of a free and civilised society – the three faces of the Holy Trinity which presides over the destiny of all free societies…. The rule of law depends upon the existence of independent courts…. The independence of the Judiciary can be ensured only in an atmosphere of sanctity for human rights. Rule law enshrining within itself the principles of equality before the law and equal protection of the laws is an essential ingredient of human rights…. The content of the rule of law varies from country to country, but everywhere it is identified with the liberty of the individual…. Rule of men, as distinguished from rule of law has often paved the way to authoritarianism and dictatorship…. The rule of law postulates a recognition of civil rights and liberties. Such rights and liberties which are essential attributes of democratic societies, have always been frowned upon by dictatorships[viii]”.
Ground Realities in India (Salus populi suprema lex vis a vis’ Rule of law)
The Constitution aims at a ‘socialist’ republic, therefore, the greatest good of greatest number of people should be considered. It is inconceivable that in a socialist State children will be without education. A sizeable section of the population continues to remain illiterate and live below the poverty line. Except in a few States, 100% literacy is yet to be achieved. Even after the lapse of seventeen years since the Supreme Court declared in J. P. Unnikrishanan Vs. State of A.P.[ix] that right to education is part of the right to life and a fundamental right, free and compulsory education for all children below the age of 14 years is not provided yet. Educational institutions are inaccessible to persons living in remote areas. In many cases the parents are too poor to afford to send their children to school sacrificing the income from child labour. The mandate of Article 46 of the Constitution to promote with special care the educational and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and the Scheduled Tribes has not received due attention from the State. The Union and State Governments have been concentrating on expanding caste/community-based reservations in favour of Scheduled Castes, Scheduled Tribes and backward classes, unmindful of its adverse impact on the unity and integrity of the Nation and the Fundamental Duties. Promotion of fraternity is one of the neglected aims and objects of the Constitution. Schools run by the State and the local authorities are unable to impart quality education through competent and dedicated teachers in a sustained manner. Extraneous considerations prevail in recruitment of teachers in many States. Private schools are expensive and out of reach for the poor and middle classes. As pointed out by the Supreme Court in K.C. Vasanth Kumar Vs. State of Karnataka[x], poor children need all out support of the State by way of scholarships, free boarding and lodging, free uniforms, free mid-day meals and extra coaching for those who are below average. Prof. D. S. Kothari Commission’s Report on Education and National Development (1964-66) pointed out another deficiency, the absence of education in social, moral and spiritual values in the school curriculum. Value based education is essential to train children as good members of society who will abide by the Fundamental Duties mentioned in Art. 51-A of the Constitution which include, the duty to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, regional or sectional diversities, the duty to value and preserve the rich heritage of our composite culture, the duty to safeguard public property and to abjure violence and the duty to strive towards excellence in all spheres of individual and collective activity. In the words of Field J.[xi] “life does not mean mere animal existence”. It means life with dignity. There can be no life with dignity without sound education. As observed by Earl Warren, CJ in Brown v. Board of Education[xii], “education is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment” A poor and illiterate person cannot enjoy his basic rights, much-less enforce them through a court of law. Right to work is another vital human right. Article 41 requires the State, within the limits of its economic capacity and development, to make effective provision for securing the right to work, to education and public assistance in cases of unemployment, old age, sickness and disablement etc. Article 43 directs the State to endeavour to secure a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure. The efforts made so far by the Union and State Governments have not succeeded in preventing starvation deaths of poor people and suicides by farmers which are reported year after year. The National Rural Employment Guarantee Act, 2005, is a step in the right direction. Honest implementation is required. Other measures to provide work and employment are needed urgently.
Growing violence and increase in the incidence of crime inhibit enjoyment of human rights. Reports of frequent crime for easy money disturb the peace and tranquility of the society. Indiscriminate kidnappings, daylight robberies, murders have become rampant. The State is finding it difficult to check the crime and maintain law and order in several parts of the country. The N.N. Vohra Committee has brought to light the nexus between the criminals, politicians and the police. The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights did not have the effect of exterminating the independent identity of such right and of making article 21 to be the sole repository of that right.[xiii]
Terrorism is spreading. Death sentence does not deter suicide squads. Armed conflicts between the security forces and the terrorists have become a regular feature in some States with inevitable casualties. Killing an enemy is not that difficult as killing one’s own people who have taken to arms. The tribals are the worst affected as terrorists find their terrain most suitable for their hideout and to ambush the police. Cross-border terrorism is worse and more dangerous, especially, when it is instigated, aided or supported by unfriendly neighbouring States. People inhabiting border areas, caught in the cross-fire of terrorists and the State forces, are also deprived of their human rights.
Freedom of speech and expression is a precious right without which democracy will have no meaning. In Union of India v. Association of Democratic reforms[xiv], and Peoples Union for Civil Liberties v. Union of India[xv], the Supreme Court has upheld the citizens’ right to know the educational background, assets and liabilities and criminal antecedents of candidates contesting at an election. The enormous wealth possessed by certain political leaders and their dependents is a matter of record. Indian democracy suffers from unchecked play of money power and muscle power in elections. There are too many political parties bereft of ideology but with a common agenda to grab power by hook or crook. Investment of huge amounts in elections inevitably leads to large scale corruption in administration, indulged in, not only by Ministers and members of Legislatures, but also by many faceless and nameless middle men. There is no serious attempt to check corruption in public life, not even serious discussion in Parliament except criticism of the party in power and targeting individual members of the Council of Ministers by the opposition. The political parties do not target corruption as such. The people of India have given ample opportunities to the national parties as well as the regional parties to run the government either at the Centre or in the States. Not a single political party has provided corruption-free governance so far. Neither the Prevention of Corruption Act, 1947 nor the new Act of 1988 with enlarged scope has prevented corruption. On the contrary, corruption has spread very fast. The epidemic has affected the credibility of the judiciary as well, which is a cause for serious concern. There is visible decline of all institutions of Governance, viz., the Executive, the Legislature and the Judiciary. Independence of the judiciary is at stake. If there is political will to check corruption, it is possible to root it out by amending a few provisions of the Constitution, the laws and the Rules and by sustained Executive action besides facilitating expeditious disposal of corruption cases by the Judiciary at all levels. Parliament, by enacting the Right to Information Act, 2005 has reinforced the right to freedom of speech and expression. The Act has brought about more transparency and accountability in the administration. Lack of good governance drives aggrieved citizens to courts. Consequently, Courts are over-burdened with cases. Delay in disposal of cases causes frustration and encourages criminals. It is a vicious circle, which needs to be broken. When powerful politicians or hardened criminals are sought to be prosecuted, witnesses fear to depose against them. Whistle-blowers are easily targeted by the mafias and liquidated. Neither rule of law nor human rights can flourish in such a state of affairs. There is an urgent need for ensuring effective protection of witnesses and whistle-blowers.
The ground realities today are more disturbing than in 1950 when the Constitution came into force or in 1993 when the Human Rights Protection Act was enacted. Performance of institutions depends largely on the incumbents in office. When men and women of vision, character, ability and integrity were at the helm of affairs they did their best to protect the rule of law and safeguard human rights. Since the quality of leadership in the Legislature, Executive and the Judiciary has progressively declined, Herculean effort is needed to reverse the trend and restore credibility of the institutions. Here lies the challenge before all public-spirited and patriotic citizens who stand by the rule of law and cherish human rights. If the tyranny and oppression of maladministration continues shall the Constitution thrive? If yes, what will be the fate of the ‘rule of law’?
-Edited by Naman Jain
[i] Essays in Constitutional Law by R.F.V. Heuston, Second Edition, First Indian Reprint, 1999, pp. 32 – 33.
[ii] The Law and the Constitution, Fifth Edition (1972); The English Language Book Society and University of London Press Ltd; London; pp. 54 and 68 (1972, Supreme Court)
[iii] Indira Nehru Gandhi v. Raj Narain, 2 SCR 347, 503 (K.K. Matthew, J.) = AIR 1975 SC 2299 = (1975) Supp. SCC 1 (1976, Supreme Court)
[iv] S.G. Jaisinghani v. Union of India 2 SCR 703, 718 – 719 = AIR (1967) SC 1427 (1967, Supreme Court) quoting Lord Mansfield in the Case of John Wilkes.
[v] State of Orissa v. Dr. (Miss) Binapani Dei 2 SCR 625, 628 – 629 = AIR 1967 SC 1269 (1967, Supreme Court)
[vi] State of M.P. v. Thakur Bharat Singh 2 SCR 454, 459 = AIR 1967 SC 1170 (1967, Supreme Court)
[vii] T.N. Godavarman thirumulpad (102) through the Amicus Curiae Vs. Ashok Khot and Anr., 5 SCC 1, 6 prs. 3 & 4 (2006, Supreme Court)
[viii] Interdependence of Human Rights and Independence of Courts – an article in the book ‘Human rights in the changing world’ edited by Justice E.S. Venkataramaiah (1988), International Law Association, Regional Branch (India) p. 108.
[ix] Unni Krishnan, J.P. V. State of A.P., 1 SCC 645 (1993, Supreme Court)
[x] K.C. Vasanth Kumar v. State of Karnataka, Supp. SCC 714 (1985, Supreme Court)
[xi] Munn V. Illinois 94 US 113, 142 (1877, Supreme Court of the US)
[xii] Brown v. Board of Education, 98 L Ed. 873: 347 US 483 (1954, Supreme Court of the US)
[xiii] ADM Jabalpur v. Shivakant Shukla AIR 1207 (1976, Supreme Court)
[xiv] Union of India v. Assn. for Democratic Reforms, 5 SCC 294 (2010, Supreme Court)
[xv] People’s Union for Civil Liberties (PUCL) v. Union of India, 4 SCC 399 (2003, Supreme Court)