By Hindesh Pal
RULE OF LAW
The term ‘Rule of Law’ is an ancient term that has again found significance in the present time. Rule of Law is derived from natural law, and natural law is also the source of fundamental rights. According to St. Thomas Aquinas, natural law is “an ordinance of reason for the common good made by him who has care of the community.” He continues by saying that the natural law is the unaided reason which is common to all people including Christian and non-Christians. Rule of law is associated with the word ‘law’ which means that man or a society must not be governed by a man or ruler, but rather, generally, the rule of law is implemented by making the constitution supreme. According to Prof. Dicey, the rule of law has three meanings or we can say three principles which must be followed so that there will be supremacy of the rule of law. The three principles are Supremacy of Law, Equality before Law, and Predominance of Legal Spirit.
- Supremacy of Law: The first meaning of the Rule of Law is that ‘no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.’ This means that no man can be punished other than for the breach of law which has been implemented in that state with proper procedure followed and legal backing. According to Oxford Advanced Learner’s Dictionary, the rule of law means the situation in which all the citizens as well as the state are ruled by the law. According to Black’s Law Dictionary, “rule of law” means legal principles of day-to-day application, approved by the governing bodies or authorities and expressed in the form of logical propositions. The rule of law implies the supremacy or dominance of law over any rule or person in that state. It also checks arbitrary and biased laws implemented by the government. It also implies that the rules and laws which are implemented in a state must be in conformity with the constitution.
- Equality before Law:Dicey’s rule of law means that everybody should be equal before the law and every section of the society must be treated equally without any discrimination. He also criticised the French legal system because there were separate tribunals for deciding cases of citizens and government officials separately. According to him, that is not the rule of law.
- Predominance of Legal Spirit: It means that the general principles of the constitution are the result of judicial decisions taken in courts of law while deciding the rights of the parties approaching the court.
Rule of Law and the Indian Constitution
The doctrine of the Rule of Law has been adopted in the Constitution of India. The principles of the Rule of Law—i.e., justice, equality, and liberty—are enshrined in the Constitution of India. The Constitution of India is above all the laws implemented in Indian territory, and any law made by the central government or by the state government must be in conformity with the Constitution of India. If any law made by the legislature under the jurisdiction of India is against the mandates of the constitution, the law would be void. Part III of the Constitution of India guarantees fundamental rights. Article 13(1) of the constitution says that all laws implemented by the government (centre as well as state govt.) in Indian territory immediately before the commencement of this constitution will be void if found to be inconsistent with the provisions of the constitution, and if the law is not wholly inconsistent with the constitution, then to the extent of such inconsistency it will be void. This is also the first principle of the rule of law, i.e., supremacy of the constitution. Article 14 guarantees Equality before law. It declares that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
In Indira Gandhi Nehru vs. Raj Narain (1975 SC 2299), Article 329-A was added to the Constitution under the 39th Amendment, which provides certain immunities to the election of the office of the Prime Minister from judicial review. The Supreme Court held that the amendment was invalid as it is against the basic structure of the Constitution of India. In A.D.M. Jabalpur vs. Shivakant Shukla (AIR 1976 SC 1207) (Habeas Corpus case), the Supreme Court held that Article 21 can’t be suspended because it is our rule of law, and if there will be no Article 21 then there will be no rule of law. The Indian judiciary is respected in the home country as well as all around the globe for its modern approach of interpreting various provisions of the Constitution with a view to promoting social justice. While interpreting the provisions related to human rights enshrined in the constitution, the courts have expanded the scope of the provisions so that it covers all the problems in daily life. For instance, the Apex court held in one of the judgments that the right to have a good night’s sleep is part of the right to life, which is a fundamental right under Article 21 of the Indian Constitution. Article 21 of the Constitution guarantees Protection of Life and Liberty, which also covers the third principle of the rule of law, i.e., protection of liberty.
In various judgments, the courts have accepted the rule of law as a basic ingredient of the Constitution. In Kesavananda Bharati vs. State of Kerala (AIR 1973 SC 1461), the Supreme Court pronounced the rule of law as an important aspect of the doctrine of basic structure. In Maneka Gandhi vs. Union of India (AIR 1978 SC 597), the Apex court held that Article 14 is a tool against arbitrariness. Their interpretation also helps in overcoming restrictions based on different laws of the state and centre which hamper fundamental rights, creating new forums, and creating efficient ways to approach courts of law like public interest litigation (PIL), etc. Successful interventions in the problems of society like child labour, crimes against women, and ensuring a clean and healthy environment are some of the successful judicial interventions and initiatives by the Indian Judiciary to ensure the rule of law and its end goal, i.e., Justice for all.
However, to see only this side of the story and to ignore the scale of inequalities and injustice would be completely missing the point. The Indian legal system is faced with numerous crises starting with the fundamental challenge of enforcing the rule of law. The system of governance in India is based on the rule of law, but the people who are responsible for making laws have no respect for the law, and this makes common people lose faith and respect towards these institutions, which is not good at all. Rule of law as a concept means a principle of law which is made supreme in nature, followed with fair procedure, and will meet its end goal, and that goal is “justice”.
Efforts to protect the rule of law depend upon various factors which will further strengthen the capacity of the legal system to cure injustice. Making new laws and new amendments will not solve the problem because the problem is not with the laws, nor are the laws or amendments incompetent, but rather the issue lies with the enforcement of law. A fundamental examination of the approaches that we have adopted to enforce the rule of law is needed. There is a need for new approaches to enforce the rule of law and critically examine the effectiveness of Indian governance given the presence of corruption at all levels.
Mr. Lalu Prasad Yadav, then Chief Minister of Bihar and currently President of the Rashtriya Janata Dal (RJD), perfectly illustrates our cultural problem, political inability, and the failure of our press to address the central issue. After the exposure of the Fodder Scam, the CBI took months of investigation, filed 2,000 pages of reports, and announced that they would seek the Governor’s permission to prosecute Mr. Lalu Prasad Yadav under the fodder scam. The scam took place in the state of Bihar, which at that time was among the poorest states of India, and the scam was worth Rs. 900 crores, which was a huge amount. This amount of money could have been used for the development of the people of the state. This type of scam is not possible by the act of one person, and that is why several ministers and civil servants of the related ministry were also called for investigation. Mr. Lalu was asked for his resignation from his post by members of other parties and other people from the political fraternity to assist and ensure a fair and independent investigation. On this, Mr. Lalu’s reply was astonishing. He said he would not resign; politics is a battle for power and “every person seeks power, so why would I relinquish it?” He continued by saying that if he were sent to jail, he would create a crisis for the central government and there would be a bloodbath all over the state. Although Mr. Lalu is a law graduate, his reasoning lacks not only legal backing but also common sense.
Similarly, Mr. Ashok Singhal, President of the Vishwa Hindu Parishad, after Hindu militants demolished the Babri Mosque on December 6, 1992, justified the act by stating that the will of the people is above the law. Mr. Singhal and Mr. Yadav must be thanked for removing the curtain from our politics; it demonstrates that our politicians have nothing to do with reason or morality. It is a naked pursuit of power.
India is suffering through a new set of scams which are huge in monetary terms and complex in nature, like the 2G Spectrum Scam, Coalgate Scam, Adarsh Housing Scam, Vadra Land Acquisition Scam, Nitin Gadkari’s Politico-business Scam, Commonwealth Games Scam, Bofors Scam, Telgi Scam, Satyam Scam, and currently the Vyapam Scam. After analyzing these scams, we understand one thing very clearly: the big fish easily escape while being involved in these illegal activities. Now this puts a question mark on the efficiency of the “rule of law” under circumstances in which the judiciary itself is on the verge of losing public confidence. All of this has been observed by common people of India who feel cheated, as the hard-earned money paid by them to the government as taxes for the purpose of the nation’s development is going into the pockets of these politicians and top bureaucrats. All these scams can result in violent protests, which are not at all good for the peace and security of the country. There is a great need for efficient action to prevent these kinds of scams.
A report of the National Commission to Review the Working of the Constitution in India noted that it is a paradox that although India has a vigilant press and public opinion, the level of corruption is exceptionally high. It is because of inner shamelessness, utter insensitivity, and a lack of public morality among bribe-takers which motivates them to commit these acts with pride. The laws, which are constantly violated due to the aforementioned reasons, have mocked the whole law-enforcement mechanism. In addition to these, various anti-corruption laws are passed by the government not necessarily to decrease these scams, but to settle scores with the opposition. Corruption is widespread in India. India is ranked 85 out of 179 countries in Transparency International’s Corruption Perceptions Index, although its score improved consistently from 2.7 in 2002 to 3.4 in 2008.
Conclusion
The development of the “rule of law” in a given country, its nature, and the extent of its realization depend upon the wealth of its citizens, the political system, the strength of its civil society, and the complexity and comprehensiveness of its reforms. This makes it necessary to initiate reforms, and reforms should be made at all levels of state organs. The rule of law also depends upon overcoming the lack of state capacity to make and coordinate reforms at all levels of state organs, opposition by interest groups like judges, prosecutors, and members of the justice department who might lose power and control due to a particular reform, and historical and cultural factors like Mr. Lalu’s example stated above.
- Every citizen is subject to the law.