Rule of Law in India
“We are in Holy Orders and recognize only one law, the law of Dharma the law of life embracing, sustaining and unifying all activities of life”. Sankaracharya
Abstract: The rule of law is a common aspiration, proclaimed by international organizations and national governments as a pre- condition for acceptable modem governance, but in India It is only in the British Rule the concept of ‘Rule of Law’ was implanted in the land which was ruled by Dharma. Basically Indians are very practical minded never gave undue importance to dead letter of Law they were abide by the living norms of ‘Dharma’. Unfortunately due to impact of English education so called learned leader of Independent India failed to access the lofty ideals of their ancestors, which governed the justice administration in pre-invasion era i.e between 300 A.D to 1200 A.D. Implication of this development is that the Constitution of India is substantially built on western notions, it fail to hold Social, Political, Cultural, moral and Spiritual ethos of peoples into it.
Today in India ‘Rule of Law’ is on its verge of losing its grounds as a potent norm of Social Order because it is not ‘the government of law’ can rule the country rather it is the ‘Government of wise man’ rule the country, ‘rule of law failed to achieve equality in pluralistic society like India, it failed for the reason that most benevolent law can be executed in most tyrannical manner, rule of in India failed to build confidence among the people even after almost 300 hundred years of its rule in this country, still more than 70 % cases solved outside the Law Courts. Today we see a discontent between people and the legal system and discontent among a large number of people because they do not get justice or, where it is delivered its comes too late. Problem of corruption in judiciary, politics, and of bureaucrats of the country exposed the lacunas of ‘rule of law’. Problem of white collar crimes, Scams, ‘funding for politics’ by which capitalist influenced the legislature thereby plundering resource of the country. In light of these unhealthy developments hampering nation’s growth, the purpose of this article is to assess the relevance of ‘rule of law’ in India and to deconstruct the concept of `the rule of law'. It is to analyse some of the weaknesses of the idea, aiming to build better legal system for the people in India based on their own legal thought.
The Rule of Law has a long normative history that privileges it as an inaugural contribution of the Euro American liberal political theory. Though there is no consensus as to the period of origin of Rule of Law it is believed that the two fundamental principles of Rule of Law have been in existence from earliest times: those in power should not make the laws (the separation of Powers), and all people (including those in power) should be bound by the laws. This thinking was not exclusively linked with religious belief. A more secular approach to Rule of Law was adopted by Socrates who, when convicted by Grand Jury of Athens for corrupting youth with his teaching, chose despite possibility of escape to accept the verdict of death, in order to demonstrate his fidelity to the supremacy to the Rule of Law. Afterwards Plato, who expressed that “Where the law is subject to some other authority and has none of its own, the collapse of state, in my view, is not far off, but if the law is the master of government and the government its slave, then the situation is full of promise and men enjoy all the blessings all the gods shower on a state”. This statement regarded to be a fountain of rule of law later on it was considered by Aristotle stated in the politics that ‘the Rule of Law is preferable to that of any individual’ and it was Professor A.V. Dicey in his Introduction to the Study of the Law of the Constitution (1885) elaborated modern concept of Rule of Law.
This so called lofty ideal of Anglo-Saxon jurisprudence not took much time to engulf colonies of Britten, it is the same in case of India also, though Britishers recognized that there was existence of legal system prior to their arrival, but gradually succeeded in implanting their legal system. The concept of Rule of Law in 19th and 20th century gained much prestige as a result of which, it is not only accepted in England and its colonies but it became international norm. After independence in India Rule of law is considered as bed rock of the legal system, ‘Rule of Law’ is the basic rule of governance of any civilized democratic polity. Our Constitutional scheme is based upon the concept of Rule of Law which we have adopted and given to ourselves. Everyone, whether individually or collectively is unquestionably under the supremacy of law. Whoever the person may be, however high he or she is, no one is above the law notwithstanding how powerful and how rich he or she may be. For achieving the establishment of the rule of law, the Constitution has assigned the special task to the judiciary in the country. It is only through the courts that the rule of law unfolds its contents and establishes its concept”.
As I argued earlier, the concept of Rule of Law though accepted in India failed to achieve the objectives for which it has been adopted, though Judiciary affirms it as constitutional norm, never yield satisfactory fruits. Let us analyze the meaning, implications of rule of law from its beginning days in India.
II. Meaning of ‘Rule of Law’
The profounder of modern ‘rule of law’, A.V. Dicey believed that there were two principles which were inherent in the non-codified British constitution. The first and primary principle was the “sovereignty or supremacy of Parliament”. The second principle, which tempered the first, was the “rule of law”. Dicey therefore saw the rule of law as a constraint (although not ultimate control) of the theoretically unlimited power of the state over the individual. For him the rule of law principle resulted from the existing common law over the years (and was not necessary therefore to be codified in any written constitution). For Dicey the rule of law had three core features: First, that no person should be punished but for a breach of the law, which should be certain and prospective, so as to guide peoples’ actions and transactions and not to permit them to be punished retrospectively. He believed that discretionary power would lead to arbitrariness. Secondly, that no person should be above the law and that all classes should be equally subjected to the law. Thirdly, that the rule of law should emanate not from any written constitution but from the “common law”, which he call it as predominance of legal spirit as foundation of constitutional law of any country. However the third feature was not made possible in India by adopting substantially foreign made Constitution. In this regard not only India many countries adopted constitution not based on their indigenous legal system but on basis of western ideals of 19th and 20th century. The totality of three principles i.e (a) Supremacy of Law (b) Equality before law and equal protection of Law (3) Predominance of Legal spirit or there is no Higher Law other than the Rights of individual as determined by the Courts, are the three component of ‘Rule of Law in narrow sense’ or ‘Thin notion of Rule of Law’.
In present era Rule of Law was expanded so much that it allows not even a meager reflection on the normative socialist ‘Rule of Law’ conceptions. It disregards the possibility that other Rule of Law traditions of thought ever existed: for example, the pre-colonial, those shaped by the revolt against the Old Empire, or the non-mimetic contributions by the proud judiciaries in some “developing societies”. ‘Thick’ or ‘wider’ conception of rule of law involves the theories about the “good”, “right”, and “just” as to the nature, content, implications of Law.
In contemporary talk, however, Rule of Law goes transnational or global. It is no longer a bounded conception but is now presented as a universalizing/globalizing notion. In part, the new “global rule of law” relates to the emerging notions of global social policy and regulation. More specifically, the networks of international trade and investment regimes promote a view that national constitutions are obstacles that need “elimination” via the newly-fangled discourses of global economic constitutionalism. The war on “terror” now altogether redefines even the “thin” ROL notions. The paradigm of Universal Declaration of Human Rights stands now confronted by a new paradigm of trade-related, market-friendly human rights. The inherently undemocratic international financial institutions (IFIs), notably the World Bank, not the elected officials in “developing” societies, now present themselves as a new global sovereign who decides how the “poor” may be defined, poverty measured, the “voices of the poor” may be globally archived, and how poverty alleviation and sustainable development conditionalities may expediently redefine “good governance”. The precious and manifold diverse civil society and new social movement actors do not quite escape the Master/Slave dialectic; even when they otherwise contest wholesale, they accept in retail the new globalizing ROL notions and platforms.
The thick notion of Rule of Law existing challenges, interconnected or interwoven with justice administration like Independence of Judiciary, Corruption in Judiciary, failure in imparting speedy Justice, failure to win the confidence of the people over justice administration system, problems of social inequalities, unequal distribution of wealth, problem of environmental degradation in the name of economic development etc fall under the net of ‘wider’ notion of Rule of Law. A broad definition of the rule of law was offered by former UN Secretary-General Kofi Annan. In his 2004 report he says: “The 'rule of law' refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”
In this regard resolution of the International Bar Association, 2005 is very relevant which elaborated the principles underlying the Rule of Law in 21st Century, which are as follows,
(a) An independent, impartial judiciary,
(b) The presumption of innocence,
(c) Fair and Public trial without undue delay,
(d) A rational and proportionate approach to punishment,
(e) Strong and independent legal profession,
(f) Strict protection of professional secrecy /confidential communication between lawyer and client.
(g) Equality of all before the law,
(h) Arbitrary arrests; secrete trials,
(i) Indefinite detention without trial,
(j) Cruel or degrading treatment or punishment,
(k) Intimidation and corruption,
(l) A transparent process,
(m) Accessible and equal trial.
III. Rule of Law in British Regime
Lofty ideal of Western philosophy (Rule of Law) believed to endanger despotic exercise of power by monarch and also of other forms of Government, However, its practical application to India by Britishers, not only proved defects in ‘Rule of Law’ but established that ideals of this concept can well be made paper tiger. For this assertion there were infinity of examples, the history of British rule in India, and more widely of European colonialism around the world, leads one to the tempting and entirely plausible supposition that there was generally one law for the colonizers, and another one for the colonized. Law has always been, to rehearse a familiar cliche, an instrument of the ruling class, though it pretends to transcendence and neutrality. White juries almost never convicted Englishmen in the colonies of serious offences, such as rape and murder. When, in 1883, the Viceory of India, Lord Ripon, proposed that the legal restriction whereby Indians were forbidden from having criminal jurisdiction over Europeans be removed, he incurred the determined resistance of almost the entire European community. For an Englishman to support equality under the law was to go against the grain, to render himself into an outcaste from his community. Apostasy was not tolerated. The ideological state apparatuses, of which law is but one element had perforce to maintain the distinction between the rulers and the ruled, because the collapse of that distinction posed a threat to the very fabric of colonial rule. In Raja Nandkumar case (1775), where he was hanged for alleged forgery of certain document, whole case was built on the conspiracy of than Governor General Warren Hastings and Prosecutor. This was in grave disregard to principles of Rule of Law. There were hundreds instances where freedom fighters of India where subject cruelty, torture and put in inhuman conditions in the trial of Muhammad Jafar Thanesari, who was subject to 18 years Kala Pani, in his autobiography explains flight of him and his family,
Police brought the letters found at my house, as well as the men that had been taken into custody there, to Ambala. By examining the material, he was able to get the Government to issue a warrant for my arrest. He came back to Thanesar with the warrant and, not finding me there, created pandemonium in the city. He searched hundreds of houses and apprehended scores of men and women. My old mother, my twelve- or thirteen-year old brother Muḥammad Saʿīd, and his wife [sic] were all arrested and excessively beaten and tortured. Even purdah-observing housewives were subjected to heartrending cruelty and dishonor. A team was dispatched to Panipat to catch my wife, but she was spared detection owing to a brave deed courageous mother of Maulvī Raẓīuí-Islām. Among those tortured was my juvenile brother Muḥammad Said. He was too immature to comprehend the glories of faithful devotion and perseverance. He could not endure the severe beatings and, afraid for his life, revealed that his brother had escaped to Delhi………my reply, Captain Parsons said something to the other two in English, took me to another room, and started beating me again. From 8:00 o clock in the morning to 8:00 o’ clock in the evening, I was probably subjected to more beating than anyone else has suffered……… the month of April the case was presented for trial to the Magistrate ín Court of Ambala. We were taken from the condemned cells to the Court. I then came to know that, under the threat of hanging, my brother Muḥammad Saʿīd had turned approver against me, and Muḥammad Rafīʿ against his brother Muḥammad Shafīʿ. Using similar threats, fifty to sixty other people had also been recruited as approvers, the majority of these consisting of maulvis and mullahs. Often while testifying they used to glance at us and weep uncontrollably, but they felt powerless, given the threats of torture, and ultimately, of hanging. These witnesses were themselves kept in the detention house, like prisoners, pending the completion of their testimony in the Sessions Court. The Government spent hundreds of thousands of rupees to provide them with good food and clothing, through the services of the police. Torture also continued. A young boy by the name of ʿAbbās had lived for a long period in my house. He was expected to parrot a fabricated and false statement that he was taught, but after looking at me with feelings of affection, he hesitated in testifying against me. The same evening this child was beaten so brutally that he died of the injuries before the scheduled time of his appearance to testify in the Sessions Court. To preempt bad publicity, Captain Parsons spread the false report that this child had died of some disease.
It is not only case Muhammad Jafar Thanesari, thousand of Muhammad in India suffered same flight under the so called “rule of law’ of Great Britten. However irony here is that some of the British writer were of the opinion that British Rule in India gave Indian a sense of Security and by their sincere efforts they succeeded to establish rule of law!!!.
Well, we all aware that independent and impartial judiciary is necessary component of rule of law, in brief let us analyze judicial impartiality during British Rule. Maulana Abdual Kalam Azad, who said memorably at his trial in 1922 that: “wherever the ruling powers took up arms against truth and justice, the Court rooms served as the most convenient and plausible weapons”. Azad further states that “the list of injustice committed by the Court is a long one”. Most tyrannical laws were always upheld by British Courts, made discrimination between Indian race and European race, never took concern to protect under trials (even political offenders) from barbaric treatment by Police and executives. In this way Courts in British rule contributed for establishment of (British) Rule of law in India.
In fact establishment of Rule of Law in India is to facilitate economic exploitation of wealthy nation India, Robert Cilve's defeat of the Nawab of Bengal in 1757 was the result of a conspiracy with a Persian traitor, Mir Jafar. With the Nawab killed in a battle, Clive installed Mir Jafar in his place and, fixes this favour, claimed from his £30,000 a year. Although he did not collect the first amount in full, the Encyclopedia Britannica states: "In the context of contemporary values these grants equaled about one-seventeenth of the then annual revenue of Great Britain". Charles Forbes, who stayed 22 years in India and returned to England to become a Member of Parliament, spoke in the House of Commons in 1836, of '"plundering the people of India day after day and year after year to an extent horrible to be contemplated. He stated that could "total annual drain from India could be little short of five million sterling". This included & £ 630,000 paid in dividends to the proprietors of the EIC. He added that "In fifty years they had extracted from India more than that would be sufficient to pay off the national debt". And this was after the Napoleonic Wars, when England's national debt shot up astronomically. As a member of the Court of Directors of the EIC, Forbes was unlikely to be significantly biased against England. However, it was not so much the proportion of input capital to the revenue that was important to Britain, as was its proportion to capital available for investment. The devastation and improvement which the British accomplished in Bengal, legalized by the British Parliament's license to loot, was rapidly expanded to the rest of India, and continued till 1947. Within the next half century after Clive, it was estimated that between £500 and 1,000 million was transferred to Britten by thousands of men who came out as paupers and turned into multimillionaire within a few years.
Britain claimed that it did not extract any tribute from India. The word "tribute", too harsh for sensitive British ears, was replaced by the less aurally offensive but equally pauperizing "Home Charges" in either case. It was India's payment of the privilege of being ruled and exploited by Britain. Further capital was siphoned off by manipulating the Indian trading deficit with Britain and by the increasingly large interest payments on the India’s Public Debt. Before the 1914-18 War, India financed more than two-fifths of Britain's total deficits, in ensuring Britain's balance of payments surplus.
From 1895 to 1898 the total amount transferred is estimated to be more than £ 1,000 million. From 1898 to 1939, the transfers more than doubled. Further wealth was extracted in the form of priceless manuscripts, antiques, jewellery, and so on. The British Museum is probably the largest depository of' stolen goods in the world today, with the Louvre and similar museums not far behind Most of the items in them were supposed to be gifts, though they would be called bribes now. If an Indian took a present he was said to be corrupt. But if a Company's servant took a "gift", he was collecting a legitimate perquisite’s.
IV Rule of Law in India after Independence
Constitution of India is framed on the basis of popular notion of Rule of Law, which recognized two fundamental components of Rule of Law, (a) Supremacy of Law and (b) Equality before law. However, realizing true objectives of Rule of Law remained a nightmare. Poor Leadership, Corruption, etc daily routines and so called leaders of nation, for their self interest jeopardized nations interest. I can site few such examples here, (i) It was on March 30th, 1997 that Mr. Sitaram Kesri (Leader of Congress party (party Supreme) and United Front Coalition Government) handed a letter to the president of India that pulled down a government which resulted into fall of Mr. Devegowda lead United Front Coalition Government. Precise reasons for withdrawal were that,
Under Gowda’s government, the Central Bureau of Investigation (CBI) and the Income Tax authorities were investigating about one hundred Congressmen for crimes committed during their years in power. As Rajesh Pilot, a Congress party leader and an aspirant for its presidency, put it, some Congressmen were in jail and many others were on bail; they could not allow the United Front to continue to rule on the strength of their support, and at the same time investigate their crimes. And Gowda’s government. doing fairly well and had tabled most popular Budget before parliament this created fear that in next election Devegowda will be able to get sufficient majority by his own party. Because of these reason government was pulled down.
The press has noted reasons for breakdown of Coalition Govt. were of Mr. Kesri’s personal problems: the Prime Minister did not show the same respect towards Mr. Kesri, which he continued to display towards his predecessor, Mr. Narasimha Rao. And although dependent on Mr. Kesri’s support, the Prime Minister had allowed the intelligence agencies to investigate his alleged “Crimes and Misdemeanors”. Mr. Kesri, who had served as the treasurer of the Congress party for many years before becoming its President, was under investigation for the evasion of income tax by his party. Mr. Kesri’s claim that during the financial years 1992-1995 the party’s income had been “nil” was rejected and 40% tax, plus interest, was slapped on to an income assessed at Rs. 251.3 million, besides this, Mr. Kesri was also responsible for his party’s receiving foreign contributions worth Rs. 37.5 million from bogus firms registered abroad. As treasurer, he was responsible for his party’s failure to report the receipt of these funds, which violated the Foreign Contributions Regulation Act. This Act bans political parties from receiving foreign funds except from Non-Resident Indians. And he facing charge of Muder of Dr.Tanwar, who rendered unofficial “duties” to Mr. Kesari, included supplying women and administering imported “vitality” injections to then 75 year-old Mr. Kesri. Dr. Tanwar was murdered on October 30th, 1993. His head, along with some of his brutally severed limbs, were discovered in a plastic bag in one part of New Delhi, while some other limbs were found at another site ten days later. The gruesome murder is said to have taken place at Mr. Kesri’s own residence in the presence of two senior Congress leaders. It was suspected that the police did not pursue the case in 1993, because Mr. Kesri’s party was then in power. This is one the typical example showing true face of Rule of Law in India.
(ii) Mr. Laloo Prasad Yadav, the Chief Minister of Bihar and the president of the Janata Dal, powerfully illustrates our cultural problem as well as the inability of our politicians and our press to address the central issue. After months of intensive investigation and 2000 pages of reports, the CBI declared that it would request the Governor’s permission to prosecute Mr. Yadav for his involvement in the “Fodder Scam”. The politicians and the civil servants associated with the Animal Husbandry Department of his government have swindled one of India’s poorest states of Rs. 9,500 million (approx. US $270 millions). Pressure from all corners mounted on Laloo to give resignation and assists investigation, But Mr. Yadav responded that“I will not resign.” “It is a battle for power; others want it, why should I relinquish it?” “If I am sent to the jail I will continue to rule from there.” “The Mahabharata was fought over the kingdom of five villages which the Kauravs refused to yield to the Pandavas; for me, the rule over lakhs of villages is at stake.” “I will take the battle to the streets.” “If I am forced to resign, I will create a crisis for the Central Government.” “If I am arrested there will be a blood-bath”. We must not forget that Mr. Laloo Yadav is Law Graduate, even so his reasoning not only lacking in posing legal issue but lacking also in common sense. In other words, who is sovereign: the people or the moral law? Does democracy mean the “rule of law,” or does it mean the “rule of the people?” There is no reason to doubt that the political philosophy? Mr. Yadav lives by what was taught to him by his Gurus, and the one in which he sincerely believes. Mr. Ashok Singhal, president of the Vishwa Hindu Parishad, when the militant Hindus illegally demolished the Babri mosque in Ayodhya on December 6th, 1992, justified their crime with the claim, by saying “The events of this day have demonstrated that the will of the people is above the rule of law.” Mr. Singhal, Mr. Kesri and Mr. Yadav deserve to be thanked for removing the “fig leaves” from our politics. They have demonstrated that our “secular” politics has little to do with reason or morality. It is a naked pursuit of power.
Now India is passing through new era of Scams, 2G spectrum Scam, Coal Scam, Adarsh Housing Scam, Vadra Land Acquisition Scam, Nitin Ghadkhari’s Politico-business Scam, Common wealth Scam, Bofors Scam, Telgi Scam, Satyam Scam, etc. We are not worried about what are the reason for these scams, but we are very much concerned about, how rule of law in India trying to prevail over these illegal activities? After analyzing above mentioned Scams it is clear that by and large, Big Fishes escaping from the net. Than question arises as to the efficiency of ‘Rule of Law’, especially under the circumstance in which judiciary itself is on verge of losing public confidence. All these issues posing serious threat to Constitutional ‘Rule of law’ in India. Apart from this Political problems, misuse of power, involvement of politician in corrupt practices on the other hand questioning the efficacy of Parliamentary form of Democracy.
(iii) Rule of Law in India came under Great challenge in 1975 emergency period; thousand of political leaders across the country have been under detention without stating any reasons. Several repressive laws enacted thereby a worst kind of Preventive detention law are applied, this experience unique to India even during British Rule there was no law to provide complete authority to police official to detain person preventively. Freedom of press and expression were put under pre-censorship, some of the foreign dailies and periodicals were banned and lines were revoked. An attempt of substitution of Original constitution is made by introducing 42nd Amendment Act to the Constitution in 1976. Misuse use Art 356, laid to weakling of federal structure of the country. (iv) In 1970s judiciary not remained independent and uncontaminated body form political intervention, appointment of Justice A.N.Ray as Chief Justice of India, discarding other three senior most judges of SC who were in no matter less than Justice A.N.Ray, but one lacuna on these three judges was that they were not having political affiliation to ruling party. Misuse of CBI, police forces for the arrest of political revelries, appointment inquiry committees, manipulation of inquiry committee report by using political power became new order of post independence era of India. (v) Lack of able leadership, and self interest lead to plundering of natural resource and unsustainable economic growth. Country like China which possessed world largest portion of iron ore, imported iron ore from India because it wished to retain its natural resources for feature generation, whereas in India exactly opposite has happened, present condition is such that our politicians does not hasten auction India for their self interest. (vi) Lack of proper supervision, and social vigilance beauracrates became most potent robbers of national wealth, they along with political bosses, criminals able to plunder the country within 60 years what the Britishers failed to do in 250 years of their rule. (vii) Justice administration system is more worst than its earlier times, legal education in country is made dustbin, which hold everything that which is not accepted anywhere, teaching of anglo-saxon jurisprudence in law schools and college is mandate, where as the existence of our own India Jurisprudence is itself a serious doubt to both teacher and student so studying it is myth. more than 250 year old British legal system failed to gain people’s faith still more than 70% of cases were getting resolved by panchayats, but no efforts have been to give statutory recognition to these settlements, instead USA made, Arbitration, Conciliation and mediation system were legalized but they are too far from yielding satisfactory results. The idea of an independent judge comes from Anglo-Saxon jurisprudence and it requires that the judge’s mind is a tabula rasa, a clean slate, with respect to the dispute and he only allows his mind to register that which is ‘relevant’ to the dispute this idea is itself a shock to Indian community, trial in alien language, examination of witness in the manner not understandable to parties, deliberate falsification of fact by lawyers are the amongst important reasons for failure of justice administration system in India. Apart from this, new courts with their very specialized rules of evidence which were manned by very technical judges, and where you would have to place your full faith in the vakeel, who alone would be the voice that would speak in the court, made the system inaccessible to Indians. Criminal Justice system is still of worst kind criminals easily succeeding to escape from punishment because of corrupt police officers, and unprepared prosecution advocates, who were overburdened by large number of cases as result public prosecutors not able to collect sufficient evidences which result in conviction of criminals. To this Criminal Law principle ‘presumption of innocence until proved guilty’ adding more complications and protection to criminals.
Britishers imposed so called ‘rule of law concept’ in its colonies not with an intention to impart justice but to ruin colonies by passing oppressive laws, this is the reason why in any colonies of British, ‘rule of law’ was not flourished as expected by native people, this was not because there were totally stranger to rule of law concept, but that principle was manipulated, it is used as instrument of oppression. History revels ‘Rule of Law’ system provides enough room for its misuse. Our constitutional framers without understanding this fact in their utter ignorance and relaying on western experiments accepted rule of law, and parliamentary system of England. Instead of imitating western legal system, if they transcended our own legal system which was in existence in medieval age that is before 12 centaury they would have gave a wonderful Constitution to this country based on its own experiences. Britishers thought that one of the way to dominate Indian civilization is to get deconstruct native education system; Lord Macaulay said that British policy ought to form “a class of persons, Indians in blood and colour, but English in taste, in opinions, in morals, and in intellect” Our constitutional framers were failed access to our own fast experiences, tough Mahatma Gandhi always aware of this fact and who uses to give frequent warnings, and he desired to establish that ancient legal system. His efforts are also proved insufficient to overcome western ideology. India’s Independence resulted from the struggle led by Mahatma Gandhi, but India’s Freedom, is a product of the Gospel of Jesus Christ. Dr. B.R. Ambedkar, Neharu, and Rajendra Prasad were of the opinion that “However good a constitution may be, it is sure to turn out bad, because those who are called to work it happen to be a bad lot.” Yet, the tragedy is that even these leaders do not know how to make bad people good, that is, how to save us from our sinfulness. However, not much time is left with us to think our fast mistakes which happened largely by ignorance and our inability to access our fast experiences.
If we want to remain a free nation, we must have the inner spiritual resources – a faith, not an ideology – which will enable us to transcend ourselves for the national good, and make decisions that cost us comfort, money, friends, and perhaps our very lives. “Is typical of what can happen in India when the Western concept of common law, natural law and rules of natural justice is treated as a pernicious outside influence!” “Let us not pretend that the rule of law is a concept which can be regarded as a part of the Indian psyche.” These words of Nani Palkiwala must be eye opener for all of us, whatever problems with which we are suffering today are the result of our own fault, we have to establish our own rule of law with this object we must reconcile existing ‘Rule of Law’ with ancient rule of law. Today we are experiencing that our MP’s and MLA’s are unfit to be a law maker, this problem even existed in Manu’s time who was of the opinion that nor the king or his minister shall make the law, only five or seven legal luminaries well versed in Vedas must frame rules of law. Those rules must be followed by King and his Ministers. We will admit that Presidential system may not holds good in India, even in Parliamentary system there is scope for complete separation of executive and legislature, this complete separation and legal knowledge of legislature protects and defends our constitution. Today due to adoption English parliamentary system both PM and his Ministry are being part of legislature manipulating the function of legislature, this is in fact creating lot of evils like, misuse of Art 356, influencing President in appointment of Judges, allowing loopholes in laws with view to help bourgeois class, etc
Above all we most reconstruct our education system without which any new change will not be commenced, studying western ideas manipulates mind of our young generation they still think that our cultural practice are quite inferior to west, they think that we must dress like west, eat like west, and live like west, but forgets we the people of India were dominated the world for thousand years, we were the sources of knowledge to the whole world, our science, arts, was unique in itself. This negative tendency is because of our education system we must inculcate in them a sense of pride about our nation and her fast glory. Today career of our students depends on their academic performance this fact forces them to be limited to text books, which are but bundle of western ideas.
‘Rule of law’ is not an end in itself, it is one of the means to an end, the means to impart justice must be inconsonance with beliefs of the people, we cannot altogether impose a alien system on them, for this reason it is need of the day to give statutory recognition to Sanathanic Panchayat system, if it is done at least more than 50% cases will be solved by the peoples themselves without approaching law courts this will lessen the burden on existing Law Courts.
This Research Paper is presented in International Conference on Rethinking Legal Education in India, Organized by Karnataka State Law University, on 30 and 31st of Oct 2012
* Guest Faculties of Law, KSLU’s Law School, Navanagar, Hubli. Efirstname.lastname@example.org and email@example.com
# Plato, Laws, Book IV, 715 d; Complete Works, Cooper, Jonh et al., Hackett Publishing Company Inc., 1997,Indiana, p. 1402. For an account of the origins of the concept of Rule of Law in the ancient world see M. Loughlin, Swords and Scales (2000), chap. 5; B. Tamanaha, On the Rule of Law: History, Politics and Theory (2004), chap. 1.
# Sethi. J, In Re: Vinay Chandra Mishra (the alleged contemner) [AIR. 1995 SC 2348]
# A valuable comparative beginning is made by a group of scholars: see, R. Peernbohm, Asian Discourses on the Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and U.S., London, London and Routledge, 2004. The present essay substantially extends and revises my contribution to the volume.
# Upendra Baxi, Rule of Law in India, Sur vol.3 no.se São Paulo 2007
# The rule of law and transitional justice in conflict and post-conflict societies. Report of the Secretary-General,
# Doc. S/2004/616, 23 August 2004, see para. 6.
# See Edwin Hirschmann, ‘White Mutiny’: The Ilbert Bill Crisis in India and the Genesis of the Indian National Congress (Columbia, Missouri: South Asia Books, 1980).
# http://www.urdustudies.com/pdf/26/14AbdaliKalaPani.pdf, MUHAMMAD JAFAR THANESARI
# 7‘KALA PANI: TAVARIKH-E AJIB’, at, Pp. 12-13
# Ibid at, p. 14
# Infra note 8 at, p 15
# Rayan Brown, The British Empire in India, at, p 4
‘A proper examination of the British Raj will show a great improvement in the condition of India over native despotisms and show the transformative process unleashed by British political principles and economic practices. The British Raj was far from perfect, but the intentions of Britain were to better these native peoples and use this colony as a means to spread and safeguard the principles of freedom around the world’.
# ‘Indian Economy during the British Empire an Overview’ Prepared by Bee Have Digital Concepts Cochin for Mahatama Gandhi University Kottayam.
# Supra note 11, at, p. 9
# Robert Clive is of the opinion that India was "a country of inexhaustible riches and one which cannot fail to make its masters the richest corporation in the world".
# Famine Commission Report 1898. p.585
# Notably Under Art 14 of the Constitution.
# Vishal Mangalwadi, India: The Grand Experiment Ist ed, (Pippa Rann Books: 2 Highfield Rd., Farnham, Surrey.
# GU9 0LX England, 1997).
# Arun Shourie, Missionaries In India: Continuities, Changes, Dilemmas (New Delhi: ASA Publications, 1994) p.63
# Vishal Mangalwadi, India: The Grand Experiment Ist ed, (Pippa Rann Books: 2 Highfield Rd., Farnham, Surrey.
# GU9 0LX England, 1997).
# Kanshi Ram, The Chamcha Age: An Era of the Stooges, (New Delhi, Karol Bagh, 1982) pp. 8-10
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