Democracy and Rule of Law: Opposites or Coherence?

Risha Kulshrestha[1] & Prakhar Gupta[2]

Abstract

This research paper is a doctrinal research that aims to address the main issue of the relation between democracy and rule of law and the degree of coherence or incoherence between them. It seeks to identify the similarities between rule of law and democracy. The scope of this research paper is limited to the legislations formulated within India only. The following research paper will analyse the status of democracy in global India and certain internal constraints which need to be overcome. It will start by analysing the definition of democracy and rule of law and their essential components. It also looks into the paradoxes in the Indian democracy. That is, how democracy means nothing in the absence of the rule of law and possibly no electoral system can survive a descent into chaos without the rule of law. Though there are certain conflicts between democracy and rule of law, yet one cannot survive in the absence of another. Further, in this paper, it will be discussed as to how democracy and rule of law are interdependent. For establishing this aspect, certain landmark cases have been used which clearly highlights the importance of rule of law in a democratic regime. Then those aspects will be discussed which highlight the differences between democracy and rule of law. It will be discussed in detail as to how rule of law and democracy contradict each other quite a lot of times and we just fail to notice that. Following this, the paper will end with a little discussion regarding which aspect is more influential. That is, are the differences more than the similarities or is it the other way round.

Keywords: democracy, electoral system, political authority, rule of law

Introduction

Democracy is a form of government which is of the people, for the people and by the people. This is how Abraham Lincoln defined democracy in the Gettysburg Address of November 19, 1863. The phrase ‘government of the people’ talks about popular sovereignty. It means that government is created by and subject to the will of the people. Next ‘government for the people’ means that the government is responsible to the people. Lastly, ‘government by the people’ means that it is a republican form of government. A republican government is one in which the political authority comes from the people. So basically under democracy, people choose their government leaders through universal adult franchise and free and fair elections held at regular and reasonable intervals, without undue influence of money and mass media, and without coercive or violent interventions of the police, the secret service and the military, but with the availability of the free press and independent judiciary.[3]

Democracy is supported by fundamental freedom and by rule of law which is a good way of advancing human rights. The modern democratic society is founded on rule of law which means that the law is supreme and is above every individual and everyone should obey it. In a narrower sense, the rule of law implies that government authority may only be exercised in accordance with the written laws, which were adopted through an established procedure. The principle of Rule of Law is intended to be a safeguard against arbitrary actions of the government authorities. Freedom of speech and expression is a part of rule of law. In the case of Maneka Gandhi v. Union of India[4], Justice P. N. Bhagwati said that Democracy is based essentially on free debate and open discussion, for that is the only corrective Government action in a Democratic setup.” Also, Explaining the importance of freedom of speech and expression, Chief Justice PatanjaliShastri, in the case of RomeshThapar v. State of Madras[5] observed that “Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible. “So we can see that democracy and rule of law are related to each other. The rule of law involves four basic requirements: equality under the law, respect for individual rights, an independent and honest judiciary, and transparent court proceedings. Without a strong commitment to every aspect, even a democratic society will not mature.[6] There are several factors which have destroyed or inhibited democracy in India. These are – military coups, civil wars, neighbourhood wars, autocratization of the regime, national disintegration and massive deportation or displacement of the people. Also, factors such as racial/ethnic hatreds, religious bigotry, linguistic rivalries, separatist violence, communist terrorism, crises of industrialization serve as contemporary challenge to democracy[7]. These factors mainly grew in magnitude because of the fact that in some way or the other, rule of law was violated in these situations. However, there is no denying that, as a matter of brute fact, lack of democracy goes hand in hand with a lax rule of law, while strong democracies tend to possess a robust rule of law. So the question which arises is that what is the extent to which rule of law and democracy are related to each other what is the degree of interdependence between the two. Whether the differences between them can outweigh the similarities?

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How are rule of law and democracy similar to each other?

In order to know that whether democracy and rule of law are coherent or incoherent with each other, mainly in India, there is a need to go back to the history to know the rudiments of both of them from where it all started. Rule of law is originated from the Social Contract Theory according to which, the state of nature was one in which there were no enforceable criteria of right and wrong. Each person took for himself all that he could and human life was “solitary, poor, nasty, brutish and short.” The state of nature was therefore a state of war, which could be ended only if individuals agreed (in a social contract) to give their liberty into the hands of a sovereign, who was thenceforward absolute, on the sole condition that their lives were safeguarded by sovereign power. So here, people collectively deciding their leader and their act of giving him powers amounts to democracy and the regulations according to which the sovereign power rules amounts to rule of law.

Rule of law and democracy are interdependent. Rule of law can exist without democracy but there can be no democracy without a rule of law.[8] The rule of law is a constitutive element of democracy. Democracy allows the government to make and administer law. While the principle of supremacy of law acts as a system of cheques and balances over the government which makes and administers law. The law makers need to give reasons that can be justified under the law while exercising their powers to make and administer law. In addition to this, the principle of equality before the law seeks to ensure that the law is administered and enforced in a just manner. It is not enough to have a fair law but the law must be applied in a just manner as well. There can be no discrimination between people in matters of sex, religion, race etc. This concept of the rule of law has been codified in the Indian Constitution under Article 14 and the Universal Declaration of Human Rights under the preamble[9] and Article 7.Human rights, the rule of law and democracy are interlinked and mutually reinforcing and they belong to the universal and indivisible core values and principles of the United Nations.

The most important aspect which connects democracy and rule of law is that democracy grants us civil rights. These rights protect individual freedom such as freedom of freedom of expression, freedom of religion, protection of private property, etc. Here rule of law plays a crucial role because these civil rights can only be protected through a robust rule of law.[10] Also, both rule of law and democracy support tolerance for pluralism. For a government to be formed democratically, votes from public are needed. If the government is intolerant towards one particular group of people, then this might become a subject of political choice which can adversely affect the government. So, tolerance for pluralism is a pre-requisite for democracy. In the absence of the rule of law, contemporary constitutional democracy would be impossible.[11] The rule of law is among one of the essential pillars upon which a democracy rests. Without a vigorous rule of law, rights are not safe and the equality and dignity of all citizens are at risk. When addressing the rule of law and democracy nexus, it has to be considered that everyone in society is bound by the law, including the government. Essentially, constitutional limits on power, a key feature of democracy, requires adherence to the rule of law. The rule of law is a fundamental principle embraced in most modern democracies. Constitutions contain the fundamental and, most often, supreme law of the State, and the rule of law dictates the enforcement of those principles above all other laws.[12]

Further, there are certain case laws that establish the relation between democracy and rule of law in a more efficient manner. In Chief Settlement Commissioner, Punjab v. Om Prakash[13], it was held that the most characteristic feature of our constitution is the concept of rule of law which means, in the present context, the law courts have the authority to test all administrative action by the standard of legality. Then in Secretary, State of Karnataka and Ors. v. Umadevi and Ors.[14], it was observed that adherence to the rule of equality in public employment is a basic feature of our Constitution and the rule of law is the core of our Constitution. In the landmark case of case of KesavanandaBharati v. State of Kerala[15]the Supreme Court held that the Rule of Law cannot be amended by any Act of Parliament, thereby showing how the law is superior to all other authority of men. Also, most famously in the case of Maneka Gandhi v. Union of India[16], the court ensured that exercise of power in an arbitrary manner by the government would not infringe the rights of the people.

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So from these case laws and from the arguments presented above, we can clearly see that definitely there is a nexus between rule of law and democracy. However, this relation is not reciprocating in nature. Rule of law can exist without democracy, but democracy cannot exist without rule of law. Rule of law lays the foundation for democracy and ensures that the rights of all the people are protected in a democratic country.

How are democracy and rule of law different from each other?

Democracy requires that political power be held by representatives elected in free and regularly scheduled elections.[17] The representatives which are elected need not be educated enough to work for the overall development of the society. It may be because they are elected by common people of India, majority of which are illiterate. The positive thing about democracy is that it does not discriminate on the basis of money and muscle power and also give chances to marginalised weaker section of the society to reach to a level equivalent to the common class of the society. The rule of law requires that political power be exercised through generally applicable rules, announced in advance, and applied uniformly and impartially.[18] These rules are made by people who all are well educated and the need to make the rules was because of the history of India as discussed earlier in this research paper. The rule of law is very stiff and works in a well disciplined and proper manner where no excuse and biasness is allowed. Neither democracy nor rule of law is wrong in its way of dealing with the contemporary issues of India. Rather they are independent and not interdependent on each other. For example – Article 21 of the Indian Constitution talks about Right to life and personal liberty which means that a person can slap any stranger anywhere anytime because he has personal liberty (democracy). As a consequence, it will be the defamation (rule of law) of the other person who got slapped which is a civil wrong. This is where the conflict arises between the two concepts. In this research paper, it has been said that there is no doubt on the point that the citizens of our country can enjoy their freedom as they want to but there should be certain restrictions on the freedom given to them. Otherwise, people will do whatever they want to, thinking in mind that they are rational human beings. But practically thinking, what is right for a person could be wrong for the other person. Therefore, freedom should be given to citizens with certain restrictions so that everyone can enjoy it in their own way.

Democracy is concerned with the way of selecting the holders of political power, while the rule of law is concerned with the way by which the political power is exercised. Thus, a non-democratic regime may operate with a robust rule of law[19], and a political system governed by electoral majorities may flout fundamental rule of law principles[20]. In a democratic society, there should never be a conflict between citizen’s rights and the rule of law. But there is a caveat which is that there must be implicit acceptance by the government that the ultimate sovereign are the people and not the small men clothed with temporary power. Democracy principally concerns itself with electoral institutions, governments and legislatures while the law operates through courts, police and lawyers. Also where legal institutions successfully claim broad authority to regulate and structure social interaction, democratic rule seems somewhat restricted. In the case of A.D.M Jabalpur v. Shivkant Shukla[21], democracy was tried to suppress by way of authority (rule) of law, in the sense, that Article 21 which comes under fundamental rights was being suppressed during national emergency. It was decided that in case of suspension of Article 21 by Emergency under Article 359, the Court cannot question the authority or legality of such State’s decision. Article 358 is much wider than the Article 359 as fundamental rights are suspended as whole whereas Article 359 does not suspend any rights. 

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So, from the above case law and the arguments presented above, it is clear that democracy and rule of law do not have only similarities. Rather, there arise some conflicts between them and they are not always interdependent but sometimes independent as two different concepts with different ideology.

Conclusion

Democracy and Rule of law are two important concepts which play a vital role in dealing with the legal concepts of our country. Needless to say, the above constructive descriptions of democracy and the rule of law have their counterparts in altogether contrary conceptions of the two. In this research paper, it is shown that trade-off is necessary between democracy and rule of law because both are important in dealing with the problems of India. As a judicious spectator, the research paper focuses on the interdependency and independency of democracy and rule of law. On one hand, rule of law is the most essential element of democracy, that is, democracy cannot even exist without a robust rule of law. Rule of law ensures that the rights and liberties of the citizens of a country are protected. And this is what democracy strives to achieve. On the other hand, there are certain conflicts between democracy and rule of law. There are certain situations where the goals of democracy and rule of contradict each other. For a democratic society to flourish, there should never be a conflict between the rights of citizens and the rule of law. However, the issue to be addressed here is regarding which one outweighs the other. We can say that though there are conflicts between democracy and rule of law, yet the similarities between them outweigh the differences between them. If this was not the case, then all the democracies all over the world would have been in a chaos by now. However, if one takes a look at India, which is the world’s largest democracy having the longest written constitution of any sovereign country in the world, one will surely agree with the fact that so far India has been doing quite well in these terms, apart from one or two minor issues which do not pose any threat to the very existence of India as a whole.


[1] Student, 2nd Year Ba Llb, Christ (Deemed To Be University), Bengaluru.

[2] Student, 2nd Year Ba Llb, Christ (Deemed To Be University), Bengaluru.

[3] Naidu M. V., Indian democracy: a case study in conflict resolution and peace building, 38(2) Canadian Mennonite University 71, 71-97 (2006).

[4] Maneka Gandhi v. Union of India, 1978 AIR 597.

[5] RomeshThapar v. State of Madras, 1950 AIR 124.

[6] Hutchison Bailey Kay, Democracy and the Rule of Law, T39(3) The International Lawyer 663-665, 663 (2005).

[7] Supra Note 1.

[8] Raban, Ofer, The Rationalization of Policy: On the Relation between Democracy and the Rule of Law, York University Journal of Legislation and Public Policy (November 28, 2019), https://ssrn.com/abstract=2564548.

[9] Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

[10] Levitsky Steven & Way Lucan, Assessing the Quality of Democracy, J. DEMOCRACY 51, 51 (2002).

[11] Rosenfeld Michel, The Rule of Law and the Legitimacy of Constitutional Democracy, 74 S. CAL. L. REV. 1307, 1307 (2001).

[12] International IDEA, A Practical Guide to Constitution Building: Principles and Cross-cutting Themes, 17-18, Stockholm (2012), http://www.idea.int/publications/pgcb/.

[13] Chief Settlement Commissioner, Punjab v. Om Prakash, 1969 AIR 33.

[14] State of Karnataka and Ors. v. Umadevi and Ors, AIR 2006 SC 1806.

[15] KesavanandaBharati v. State of Kerala, AIR 1973 SC 1461.

[16] Supra Note 2.

[17] Hendriks Frank, Vital democracy: a theory of democracy in action 22, (2010).

[18] Pennock James Roland, Administration and the rule of law15, (1941).

[19] Reid John Phillip, Law’s Umpire, in rule of law: the jurisprudence of liberty in the seventeenth and eighteenth centuries 68, (2004).

[20] The State of Human Rights and the Rule of Law in Russia: U.S. Policy Options: Hearing Before the S. Sub commissioner on European Affairs of the Commission on Foreign Relations, 112th Cong. 51 (2011).

[21] A.D.M Jabalpur v. Shivkant Shukla (1976), 2 SCC 521.