Is The Rule of Law a Loser’s Last Resort?


The meek has not inherited the earth as yet. The last I heard the jury was still out, trying to decide whether this too was a metaphor.

God is no longer the Uncreated Creator and if recent Hollywood blockbusters are to be believed, he is just the creator, a Gnostic Demi-urge who is flawed but must be obeyed. Rather like the wife of Rumpole of the Bailey.

Recent studies indicate that the British did not leave India because of the firm meekness of the Saint from Sabarmati but more probably because post 2nd World War Britain could not afford the cost of maintaining and policing a colony.

Mandela did not win because of non-violence but because sanction savaged South Africa needed the world community for growth.

Development in India means higher GDP which does not factor in happiness or joy. The aesthetics of the richest man in India is demonstrated by a umpteen storey high monstrosity which cost a packet and which looks like a giant scrap-heap.

Join Lawctopus Law School, the law school you always wanted, online! Check

Constitutional rethinking holds that the law laid down by the Supreme Court of India only binds all courts in India and therefore the legislature and the executive do not have a constitutional duty to follow or obey it, but they do so out of a convention and courtesy (thank you Prabhakar Drr in Facebook).

The letter of Article 141 does seem to support such an interpretation though given the interesting times that we live in, implementing this theory would mean a running if not pitched battle between the two wings of the government on the one hand and the tenuously independent third on the other.

Thankfully, the judgment in the case of Som Mittal—v—State of Karnataka reported in (2008) 3 SCC 574, even while cautioning the Supreme Court itself from issuing directions affecting executive or legislative policy or general directions unconnected with the subject matter of the case, clearly lays down that the law declared by the Supreme Court is binding on all courts and all authorities in the territory of India are required to act in aid of it.

The sub-text, I would suggest, is that while Supreme Court will not travel outside the case at hand, to rule the country by judicial fiat, it can lay down the law on the facts before it which will bind and compel even authorities and people other than Courts to follow that law and do everything to give effect to that law.

Still the judiciary, it is argued, is fighting a losing battle. It has no armies and can only enforce its decrees and orders through the power to punish for contempt. What, I ask myself, will happen if the authorities or people (other than courts) choose to disobey?

The power to punish for contempt is backed by the sanction, in High Courts, represented by the Deputy Sheriff. If he is obstructed, then the police and even the army may be called on to ensure compliance. Yet what if they – not being courts – choose not to obey a direction to ensure that a contemnor complies?

Let us put it this way. What will happen if a Court directs a Director General of Police to do something and he does not? If the Court then directs the Deputy Sheriff to produce the Director General of Police before the Court and the Deputy Sheriff is resisted what will happen?

Let us suppose that the Court directs another police officer to use necessary force to produce the Director General of Police before the Court but the police officer refuses to obey the Order. The Court then directs the army to ensure compliance with all the previous orders and the army also refuses. What does the Court then do?

If it is a High Court, I guess it can request the Supreme Court to take cognizance of the sordid saga but what would happen if the same series of disobedience occurs there too?

It is there that I think the constitutional convention of obeying the orders of the Court comes into play. It is more a matter of enlightened if sometimes selfish but far-seeing choice, than a matter of force.

Let us suppose an authority today decides, with the cooperation of all other authorities other than the Courts, to ignore orders of the Courts which run contrary to the predilections of the authority. There will come a time when the personnel constituting such authority will no longer constitute it. They or he may retire or be dismissed or voted out of office or post.

At that time, the new people may try to enforce their will regardless of its legality on the losers. Then the newly disempowered will have nowhere to go but to the Court. If they prevail in the Court and the newly empowered choose to defy the law laid down by the Court and its orders and directions, then they will become victims of the same oppression that their earlier defiance meted out to others.

Perhaps it is to protect themselves from the possible mischief of abuse of power in future that those now in power choose to obey the law declared by the Court. Is it then the loser’s fear of consequences after loss of power, position or status that makes him obey the law?

In the final analysis, is that the Rule of Law? A loser’s last resort?

Get Lawctopus in Your Email.

Join 58,000+ young lawyers!

One Comment

Add a Comment

Your email address will not be published.