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Published : July 08, 2010 | Author : sanjaygupta7688
Category : Law - lawyers & legal Profession | Total Views : 8476 | Rating :

Sanjay Gupta Fifth Year Student of five year Law Course in Government Law College

Defending The Indian Constitution And The Rule Of Law- Right Up To The 21st Century

‘Law makes all society members in to agents of societies self-creating. Law makes all human action in to action whose potentiality is the public interest. Law makes all human desire in to desire whose object can be the survival and prospering of society.’

‘Legal relations are universalizing patterns of interactive human behavior. Legal relations universalize the infinite particularity of possible human behavior; when they are applied to actual human behavior, legal relations particularize society’s universal purpose.’

Rule of law is one of the pillars of the modern world, and widely considered necessary for sustained economic development, the implementation of democracy and the protection of human rights. It has however emerged in western liberal democracies, and some people question how far it is likely to take root fully in the different cultural, economic and political context of Asia.[1]

In democracies, the use of arbitrary power is considered as asthma to the rule of law. Fundamentally, constitutional limits on power, a key feature of democracy, requires adherence to the rule of law. Thus, the rule of law could be defined as the subjugation of State power to a country’s constitution and laws, established or adopted through popular consent. This is the meaning of the commonly cited phrase “a government of laws, not men”, made famous by John Adams, the second president of the United States.[2] Under such a system, law should be supreme to the capricious authority of any individual. The rule of law is the supreme check on political power used against people’s rights. Without the regulation of State power by a system of laws, procedures, and courts, democracy could not survive. Although the rule of law protects the majority from arbitrary power and tyranny, it also has a necessary function to protect the minority both from the arbitrary power and the tyranny of the majority.[3]

This essay would explore the various aspects of rule of law starting from its origin to its current application in world arena. The essay would more particularly stress on the application of this rule of law in Indian Scenario. It also seeks to analyze various reasons that have prompted voluntary improper execution of this rule in India along with reckoning the decisions of honorable Supreme Court of India in this regards.

Understanding Rule of Law:

The rule of law, also called supremacy of law, means that the law is above everyone and it applies to everyone. Rule of law is a general legal maxim according to which decisions should be made by applying known principles or laws, without the intervention of discretion in their application.[4] This maxim is intended to be a safeguard against arbitrary governance. The word ‘arbitrary’ (from the Latin “arbiter”) signifies a judgment made at the discretion of the arbiter, rather than according to the rule of law.[5] The concept of rule of law, in its traditional form, owes its exposition to the A.C. Dicey.[6] According to him, rule of law means the following three things:

i) Supremacy of Law:
According to Dicey, the law of the land should be supreme and predominant. This principle of the rule of law excludes arbitrariness and wide discretionary powers enjoyed by the government. A man should be punished only for the breach of the law, and for nothing else. Dicey was of the firm view that if discretion is given to any authority, legal freedom is endangered. This view becomes clear from the following statement: “wherever there is discretion, there is room for arbitrariness, and that must be insecurity for legal freedom. The rule of law requires that the Government should be subject to the law, rather than the law be subject to the Government.” (Dicey)

ii) Equality before Law:
The second principle of Dicey’s concept of rule of law requires all persons to be subject to the same law and the same courts. In other words, there must be equality before law, and all classes of persons must be governed by the ordinary law of the land, as administered by the ordinary courts. Dicey criticized the French system of droit administratiff, where special courts were set up to deal with disputes between citizens and government officials. He opined that it is a negation of equality, if civil servants are exempted from the jurisdiction of ordinary courts of law.

iii) Predominance of Legal Spirit:

The third underlying principle of the rule of law, according to Dicey, is that the individual’s fundamental rights are preserved, not by written guarantees, as for instance, a written constitution, but by the courts of law. Thus, in England, a person’s rights to personal liberty, freedom from arrest, etc, are not guaranteed by any written constitution, rather, they are the result of judicial decisions in concrete cases actually decided by the courts. He said that merely incorporating basic human rights in a written constitution is meaningless in the absence of effective machinery for enforcement.

However, there are lots of criticisms of Dicey’s views of rule of law. According to Dicey, there must be equality before the law, and all classes of persons must be governed by the ordinary law of the land, as administered by the courts. However, in the twenty-first century, Judges, Diplomatic representatives and certain other individuals enjoys special immunities. Likewise, the members of the parliament enjoy certain privileges. The executive enjoys vast discretionary powers. Such discretion is in sharp conflict with the philosophy of Dicey which stated that wherever there is discretion, there is room for arbitrariness. What is a necessary element of the rule of law is that the law must not be arbitrary or irrational, and it must satisfy the test of reason. It is the democratic form of policy that seeks to ensure this element by making the framers of the rule of law accountable to the people.[7]

Judiciary on Rule of Law and Indian Constitution:
Nations are born in the hearts of Poets, they prosper and die in the hands of politicians.”
The doctrine of Rule of Law has been adopted and very succinctly incorporated in the Indian Constitution. The ideals of the constitution viz; justice, liberty and equality are enshrined (embodied) in the preamble itself. The constitution of India has been made the supreme law of the country and other laws are required to be in conformity with it. Any law which is found in violation of any provision of the constitution, particularly, the fundamental rights, is declared void (invalid).[8] The Indian constitution also incorporate the first principle of Dicey i.e. equality before law and equal protection of laws.[9] The very basic right to life and personal liberty has also found its place in the Indian Constitution which is the most important right in today’s arena.[10] Article 19(1) (a) of the Indian constitution guarantees the third principle of the Rule of law (freedom of speech and Expression). No person can be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence is also very well recognized in the Indian Constitution.[11] The principles of Double Jeopardy and self-incrimination also found its place in the constitution.[12]

Every aggrieved person has been given with the fundamental right of constitutional remedy for any violation of their fundamental right by the State.[13] The Indian Constitution recognizes three organs of the government viz; Legislature, Executive and Judiciary. It provided for encroachment of one organ (eg-Judiciary) upon other (eg-executive) if its action is malafide, as the citizen (individual) can challenge under Article 32 of the constitution if the action of the executive violates fundamental rights of citizens.

In India, the meaning of rule of law has been much expanded and applied differently in different cases by the judiciary. It is regarded as a basic structure of the constitution and therefore, it cannot be abrogated or destroyed even by parliament.[14] The principle of natural justice is also considered as the basic corollary of rule of law. The honorable Supreme Court of India has held that in order to satisfy a challenge under Article 14, the impugned State act(enactment in the form of law passed by parliament) must not only be non-discriminatory, but also be immune from arbitrariness[15], unreasonableness or unfairness (substantively or procedurally)[16] and also consonant with public interest.[17] In A.D.M Jabalpur v Shivakant Shukla,[18]the question before the apex court was, whether there was any rule of law in India apart from Article 21 of the Indian Constitution. The court by majority held that there is no rule of law other than the constitutional rule of law. However, Justice Khanna did not agree with the above view. He rightly said, “Even in the absence of Article 21 of the constitution, the State has no power to deprive a person of his life or liberty without the authority of law.”

International Jurists on Rule of Law:

The Rule of law as formulated by the International Commission of Jurists in 1959, may now be noted which is in consonance with the need of the rule of law in a modern society. They are as follows:

i) The legislature and the Rule of Law:
The function of the legislature in a free society under the rule of law is to create and maintain the conditions which will uphold the dignity of man as an individual. This dignity requires not only the recognition of his civil and political rights, but also the establishment of the social, economic, educational and cultural conditions.

ii) The Executive and the Rule of Law:
The rule of law depends not only on the provision of adequate safeguards against abuse of power by the executive, but also on the existence of an effective government capable of maintaining law and order and of ensuring adequate social and economic conditions of life for the society.

iii) The Judiciary and the Legal Profession under Rule of Law:
An independent judiciary is an indispensable requisite of a free society under the rule of law. Such independence implies freedom from interference by the executive or legislature with the exercise of the judicial function, but does not mean that the judge is entitled to act in an arbitrary manner. Legal profession may play a vital role in achieving such independence of judiciary since they are one who are going to practice law and implement it in a manner which would ensure not only freedom of judiciary but also looks to implement the law in a positive manner in the society.

Defending Indian Constitution and Rule of Law:
It is now very settled that the Indian Constitution has the very basic feature of rule of law. The question, thus, arises: ‘Do we really adhere to the rule of law?”

We are nations with hypocrites at the helm of affairs and innocent gullible as its subjects. When the Supreme Court comes out with suggestions for election reforms giving the electorate the freedom to know the criminal antecedents of the candidates contesting for elections, the politicians, of all shades including the dogmatic communists join hands to see that such reforms are not accepted. With hundreds of members of legislatures and parliament facing criminal prosecutions at various stages of investigation or trial it is a farce to talk of a nation ruled by committed men of excellence.[19]

The lack of respect for rule of law is seen in all walks of life. Day in day out we read reports of the police not registering complaints for various reasons. Though it is mandatory that the police have to register complaints wherever it is preferred and then transfer it to the concerned police station which has jurisdiction to receive the same, it is not done.[20]

The enforcement of rule of law in India varies from caste to caste community to community, religion to religion, zone to zone, region to region and State to State.[21] Urgent steps are needed to establish rule of law society in India, without which fundamental credentials as a democracy will be seriously undermined. The social and economic progress achieved by the deepening of democracy in many societies has been shaped by their efforts to successfully protect the rule of law.[22] While the normative framework of constitutional governance is established through the constitution of India and the various institutions established under it, deeply embedded values of constitutionalism have not taken roots in the Indian Society.[23]

Enforcement of the rule of law and efforts to protect the rule of law ought to be shaped by a number of factors that will improve the capacity of the legal system to respond to injustices. Passing more laws and the establishment of more institutions credited with responding to injustices may not be the right approach. There needs to be a fundamental re-examination of the approaches that we have adopted to enforce rule of law.[24] In this regard, a report of the National Commission to Review the working of the constitution in India noted: ‘The paradox of India, however, is that in spite of a vigilant press and public opinion, the level of corruption is exceptionally high. This may be attributed to the utter insensitivity, lack of shame and the absence of any sense of public morality among the bribe takers. Indeed, they wear their badge of corruption and shamelessness with equal e’lan and brazenness.”[25]

The development of the Indian legal system ought to focus on three major reform initiatives which will help in establishment of a rule of law society, leading to the strengthening of democracy.[26] They are:

i) Law Schools and Legal Education:
Law schools have played an important role in shaping the role and function of law in societies which have established the rule of law as the basic framework for governance. The role of law schools in helping the legal system establish a rule of law society may not be obvious but its importance should not be underestimated, given the ability of law schools to promote new and innovative ideas in shaping the minds of lawyers in preparing themselves to solve the problem of the country and the legal system at large.

ii) Lawyers and Social Change:
Lawyers in India have a responsibility to recognize the problem of the legal system, the yawning gap between the law in the books and the law that is practiced, and in particular, to appreciate that the fragility of the rule of law in India cannot be taken for granted. In fact, the respect for the rule of law ought to be institutionalized among the legal fraternity.

iii) Judiciary and the Justice delivery System:
The Indian judiciary has acquired enormous faith and trust from the people. The judiciary as an institution- particularly the High Courts and the Supreme Court of India, has performed admirably well in upholding the constitution and protecting the rights of the people. However, the justice delivery system in India is marked by lack of access to justice. The impact of judiciary’s efforts in providing justice to the victims of various forms of injustice is still minimal although profoundly significant.

The working of the lower courts in India has to be significantly improved. The establishment of the National Judiciary Academy in Bhopal was a step in the right direction but there is need for substantially improving the working of State judicial academies. These institutions should play an important role in identifying the problem of justice delivery systems, and how far the judiciary can help in establishing a rule of law society.

The concept of rule of law is deeply rooted in the Indian Constitution, but the actual meager execution of this rule by the executive department has led the country down in its national policy of eradicating the poverty. This has been reflected in various development reports of the United Nations. The basic problem in implementing the rule of law in its truest sense in India is the presence of inequality among various sections of the population of India. The economic inequality existing in rural areas makes every economic aids of the central government, offered to the State government, futile as the rich population in rural areas do not want to equalize the benefits of such aids with the other much needed population of rural areas.

Amidst such grave inequalities in implementing the true spirit of rule of law in India, there is some ray of hope which can be seen from the instance of Abdul Azmi Kasab, a lone terrorist caught by the police at the instance of terror attack on 26th November 2008. In this case all of us have seen the footage of Abdul Kasab killing several people and hence we were demanding direct hanging of him based on this evidence. However, the government still followed the rule of law and because of which, we can see Abdul Kasab still alive and giving more valuable information about other most wanted terrorists. The very basic reason for following procedure of law by the government is to make the culprit realize his/her mistake (offence). If we were to hang Kasab directly, then tomorrow the police will arrest anyone on ground of suspicious link with terrorist and hang them directly. Thus, the people are at least sure now that they cannot be arrested without proper authority and without following appropriate procedure of law. In the end I would like to quote two quotations which must have a deep impact on the minds of common people.

Joseph storey who speaking of the American constitution has said, “It has been reared for immortality, if the work of man may justly aspire to such a title. It may nevertheless perish in an hour by the folly, or corruption, or negligence of its only keepers, the people. Republics are created by the virtue, public speaking and negligence of the citizens. They fall, the wise are banished from the public counsels, because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them.”

And Bertrand Russell observed, “There is no nonsense so arrant that it cannot be made the creed of the vast majority by adequate governmental actions.”
[1] See Upendra Baxi, ‘Rule of Law in India’ published in Asian Discourses of Rule of Law’. Also available at: www.informaworld.com/smpp/content-content0a732973758-db=all-jumptype=rss&whp=30&wsc=ti&wsi=8b61585ffc2dd4ea . (last visited on 30 December 2009)
[2] See the article ‘A Necessary Accompaniment for Democracy’ available at:www.democracyweb.org/donate.php&wsc=ti&wsi=72cf39da1e1caa6d . (last visited on 30 December 2009)
[3] Ibid. (Meaning ‘refer above footnote’)
[4] See Black’s Law Dictionary, Fifth Edition, 1979, page. 1196.
[5] See Curtis, Thomas, ‘The London Encyclopaedia’, page. 565 (1829)
[6] See A.C. Dicey, ‘The Law of the Constitution’, published in 1885.
[7] Bachan Singh v State of Punjab, AIR 1982 SC 1325
[8] See Article 13 of the Indian Constitution, 1949.
[9] See Article 14 of the Indian Constitution, 1949.
[10] See Article 21 of the Indian Constitution, 1949.
[11] See Article 20(1) of the Indian Constitution, 1949.
[12] See Article 20(2-3) of the Indian Constitution, 1949.
[13] See Article 32 of the Indian Constitution, 1949.
[14] Indira Gandhi v Raj Narain, AIR 1975 SC 2299 (2369-71), Khanna, J., Ray, C.J., Chandrachud, J
[15] Nakara v Union of India, (1983) UJSC 217 (Paras. 13, 14)
[16] Maneka Gandhi v Union of India, AIR 1978 SC 597
[17] Kasturi v State of Jammu & Kashmir, AIR 1980 SC 1992 (2000)
[18] (1976) 2 SCC 521, AIR 1976 SC 1207
[19] See the comment ‘Do we really adhere to the rule of law?’ by Sudha Ramalingam, available at:www.Pucl.org/Topics/Human-rights/2002/rule-of-law.htm&whp=30&wsc=tc&wsi=2bb768673f7b6b82 . (Last visited on 30 December 2009)
[20] Ibid.
[21] See the article, ‘Is there non-discriminatary rule of law in India?’ by V.Sundaram, available at:www.bolokids.com/&wsc=ti&wsi=1790ce45e8b161de . (last visited on 31 December 2009)
[22] See the article ‘Democracy and the rule of law in India’ by C.Raj Kumar, published in ‘The Hindu’ on September 21, 2007. Also available at: www.thehindu.com/2007/09/21/stories/2007092150071000.htm&whp=30&wsc=72cf39dale1caa6d . (last visited on 31December 2009)
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Ibid

Authors contact info - articles The  author can be reached at: sanjaygupta7688@legalserviceindia.com

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