Democracy and Rule of Law- The Inseparable Entities

N.Ilakkiya[1]

Abstract

The concept of democracy ought to be approached by examining its essentials as contents of the term. It should be known from the outset that democracy expresses both principles and ideal in different way i.e., principles, which those who believe in democracy wish to be given practical expression in the laws and institutions of the society; and ideals which provide goals toward which man in society should constantly aspire for the betterment of the society.

At the same time, the principle of rule of law is indispensable to any legal and political system. It imbibes the notions of fairness, equality and most importantly imposes restrictions for arbitrariness. This principle has been held to mean due process and a just, fair and non-arbitrary procedure. This has given effect for the doctrine of separation of powers that prevents one organ of the government from overreaching and acting in an arbitrary manner, by creating a system of checks and balances.

However, any encroachment or adverse action on the part of one organ severely undermines the doctrine of Rule of Law.

Thus from the foregoing, the focus of this paper shall not be adhered or centred on the definition of democracy alone but rather concentrates more on the essence and significance of the rule of law and also tries to emphasise that rule of law and democracy are like two sides of the same coin. Without the one, the other one cannot exist. Thus the author tries to explain the concepts with various headings.

Thus in a democratic society, there is a necessity and must for the rule of law for a proper governance in a state.

Introduction

It is difficult to make a definite and convincing reply to the question what law is? Everyone has their own definition for this term and it may not be proper also. Even the definition of law can be from different angles, for example in terms of judicial process, its purpose or of social fact.

Many scholars defined the term law in their own way. For example, according to Austin, a Law is a command issued from political superior to political inferior. The natural theory expounds that law is a system of right or justice common to all men. According to Kelson:[2]

  1. Law is a norm of action
  2. Jurisprudence is a normative science
  3. The ground norm of law is the product of historical development (as in India).

It should be noted that these theories or schools of thought about law look law from different angles from different viewpoints, discussing various factors which go to produce law. However, no single theory is complete and final answers what law is.  If one tries to join all these theories and synthesizes them somewhat satisfactory answer as to what the law is could be found out. But still, it won’t be a full-fledged answer. Thus to know the importance of law the Rule of law concept evolved.

At the same time, rule of law might have lost its popularity when there is no democracy is present. Thus this doctrine is clearly visible only in a democratic society. Without democracy, there is no rule of law because both are like two sides present in a coin which are inseparable. 

Thus, to understand the concept of rule of law to fullest then there must be a democracy for the understanding.

Rule of law origin

This concept is one of the fundamental principles of constitutional and has been acknowledged as the foundational stone for the growth and development of administrative law. This expression has been derived from the French phrase la principle de legalite, i.e. a government based on the principles of law.[3]

It was firstly expounded by Sir Edward Coke and was later developed by an eminent British Jurist and Constitutional Theorist Prof. A.V. Dicey in his book Law of the Constitution published in 1885.

Rule of law as the basis of democracy

The rule of law- its definition and attributes, the possibility and conditions for existence, and its significance as a political value- has been a subject of debate for many years. There were many debates regarding the rule of law whether it forms a basis for democracy or not? Only very little scholars argued that it is not a part of democracy but the majority of them accepted the fact that rule of law forms the basis of democracy and at the same time one cannot the leave the importance for the other. Both concepts go hand in hand. So the basic question is: What is rule of law? The ultimate answer is the doctrine of rule of law is bound with the practice of democracy.

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E.Sagay says that “there can be no democracy without rule of law”[4] and by common agreement, Albert Venn Dicey in his book exposed the concept of the rule of law as:[5]

  • No man is punishable or can be made suffer in body or goods except for a distinct breach of law…
  • every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done with legal justification as any other citizen… (Appointed government officials and politicians, alike) … and
  • all subordinated, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorize as if any private and unofficial person.

The International Commission of jurists[6]defined the rule of law as:

Adherence to those institutions and procedures, not always identical, but broadly similar, which experience and tradition in different countries of the world, often having themselves varying political structures and economic backgrounds, have shown to be essential to protect the individual from arbitrary government and to enable him to enjoy the dignity of man.

From the above definition, we can infer that the rule of law is the important aspect of democracy in the process and quest for good governance of the society. Without this doctrine, there can be no democratic society. All members including those in authority are subject to the law.

Generally speaking, the doctrine has two specific aspects; first, the law should rule the people and people should obey the law; second, the law must be capable of being obeyed, hence, the law must be capable of being ascertained and guiding people’s behaviour. These two aspects are indispensable for a welfare society. The first aspect obviates the danger of legalism, i.e., citizens becoming slaves of the law, forgetting the spirit behind the law.  The second aspect avoids the danger of presumption that one breaks the law all the time and gets away with it.

The point is to emphasise here is it is imperative that in any democratic society, the rule of law must be applied in all the aspects of the society for example through education. One thing which should be accepted by everyone is that rule of law as a democratic principle. Because in a democratic society, rule of law places limitations on the power of the government for the welfare of personal freedom and by this, it leads to a good independent judiciary. 

An important point on rule of law is it should be applied prospectively and not retrospectively. At the same time, it should be provided without seeing the status of the people (irrespective of this both financial and social status). At this juncture, it should be known that law is based on morality. An important question raised here is: if the law is not based on morality, on what can it be based? The answer is rule of law must rest on morality and ethos of the community. This is evolved because to safeguard the whole community against selfish interests of individual persons. Thus people’s character determines the moral standard of rule of law. If people were not well brought up, the rule of law would be shaky in that community.

Not only this one but the rule of law paved way for another doctrine Separation of powers. This doctrine is evolved because the main aim of rule of law is to avoid arbitrariness and for implementing this concept there was a need for another concept called the separation of powers.  Separation of powers is imposed by the Montesquieu. According to him, there are three organs of the government like the legislature, executive, and judiciary. None of these three organs should control, or interfere with the exercise of the functions of other organs. The basis of the doctrine of separation of powers is that the merging of all the powers in one body will result in the negation of individual liberty. If the executive and the legislature are the same bodies of persons, there may be a danger of the legislature enacting oppressive laws which the executive will administer to attain its own end. The balance of the power should be attained by checks between separate organs of the government. Thus Montesquieu advocates for separation and balancing of powers among the three arms as a means of guaranteeing the freedom of the individual.

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Visibility of rule of law in a democratic society

Main areas of new developments which strengthen the rule of law may be depicted as under:

Consumer protection movement

Various measures pointing to the public welfare have been taken by the state. Before pre-constitution period certain laws were there but they existed for the benefit of the British colonialism. But after independence attention is paid to the welfare of the people. Consumers of goods are protected against the menace of sub-standard products. Now the consumer organizations can file complaints in the courts and can obtain justice for consumers.

Common civil code

Article 44[7] of the Constitution of India requires the State to strive to secure for its citizens a common civil code throughout India.[8] The codified Hindu law is the great step in this direction. If a common code is accepted by all the communities, there would be no problem in respect of rights of Women. For achieving this target, of course, we cannot move fast, all of a sudden, but decisions by courts and educating the masses and fundamentalists to leave their obstinacy about religion in every walk of life and activity would be beneficial.

Legal aid programmes

Under Article 39A of the Constitution of India, the State has to promote justice on an equal opportunity basis and provide free legal aid to all the people. The main motive behind this provision is that those who have scanty means and are economically weak or who suffer from other disabilities must get justice easily. By amending Civil and Criminal Procedure Code, various High Courts and other Subordinate Courts have set up legal aid committees. The legal assistance at state cost is now treated as a part of fundamental rights of a person accused of an offence which may involve jeopardy to his life or personal liberty if he is unable to engage a lawyer due to his indigence or unable to secure legal services on account of other reasons.”[9]

The LAcs and the Lok Adalats are in fact powerful devices to reduce the arrears of cases lying in the courts. If speedy and cheap Justice is to be provided at the door-step of needy these instruments must be sharpened. If done so, it would also strengthen the rule of law. This facility is possible only in a democratic society.

Measures for control of environmental pollution

The world is covered by a particular atmosphere. It is covered with vivid strata of air and this cover prevents the sun-rays from directly touching the Earth. One of these strata’s is a layer of Ozone gas. Various gases released by industries, mills and chemical factories and carbon monoxide emitted, from the vehicles touch the Ozone layer and carve holes in the layer. From these holes, the sun rays penetrate the earth’s surface and lead to many environmental and health issues. Itis for this reason that the rivers run in space and rain lash a number of places causing a destruction of property and life of lakhs of people.

In India there are many efforts are tried to stop this harmfulness by enacting legislation.[10]But still, rule of law is slacking and lethargic in this area.

Upliftment of status of women

It has been said that all religions are founded with the sole aim of purifying human conduct and behaviour so that one can lead an ethical life. But by efflux of time, the ruts of ordinary rules of behaviour became so strong and cruel that it became more than difficult to amend them to suit the charging time. From this attitude of Gurus, priests and Mullas arose communalism and fanaticism. The status of Woman became lower and in some religions, she was treated and considered as a child-bearing machine.

After independence, it was thought to form a Common Civil Code (CCC) but due to an opposition of communal forces in the name of religion. Due to many personal laws were against the formation of CCC since they discriminated against women. This position was clearly against fundamental rights. The Practice of becoming sati, ill-treatment of widows, polygamy practiced by men, child marriages, untouchability, human sacrifices etc. were deep-rooted vices which have blocked the upliftment of women. Cases like Roop Kunwar and Shah Bano are its glaring examples. A CCC is an antidote for these vices.

Then later on in the 174th report, the law commission of India has recommended to reform Hindu law by giving coparcenary rights to the woman.[11] And at the same time for the welfare of the women, a law was enacted to protect them from domestic violence. Since domestic violence towards women is increasing day by day. For this one, the dowry prohibition Act was enacted for the women welfare.

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Freedom of speech and expression

Freedom of speech is the bulwark of every democratic government. This freedom is needed for every government to work efficiently and for a proper functioning of the democratic process. It is regarded with liberty. With this freedom, every person has a right to express his views (but with some restrictions). In this, the rule of law plays a wide role.  Because this performs a crucial role in the formation of public opinion on various matters. In Maneka Gandhi v. UOI,[12]Bhagwati J. has emphasized the significance of freedom of speech and expression in these words “democracy is essentially on debate and open discussion, for that is the only corrective of government action in a democratic setup. If democracy means Government of the people by the people and for the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his rights of making a choice, free and general discussion of public matters is absolutely essential.”

Thus two things form the bedrock of any open society- freedom of expression and rule of law.[13]

Thus from these instances, we can infer that rule of law is the basis for the democracy. Without rule of law, there can be no democracy

Conclusion

Thus the rule of law is accepted as the most fundamental essential in a democratic society of which without this the functions, democracy, and democratic praxis become meaningless. It should be always noted that democracy and good governance must be balanced equally. The benefits of rule of law are huge in number; it proposes that government should have restraints, not possessing discretionary powers. There should always be a legal checking imposed towards government and its institutions and it must be kept in mind that no one is above law. These basics are implemented successfully in the states which will result in national stability and in-turn leads to good governance and security of every individual.

There arises a question; is the rule of law is very important? It is the most fundamental requirement for a stable democratic society i.e. civil society. The importance of the rule of law lies partially in power and in the discipline to its subjects. These are important conditions imposed for the welfare of a democratic society. It is emphasized that rule of law is considered to be part of developmental initiatives and believed that it is a pre-condition for economic development. Therefore, a functional rule of law is a pre-requisite condition for a democracy to work in developing societies and an important characteristic for the society.

Thus democracy and rule of law are an inseparable entity in the society. Thus they are coherence in nature.

“The rule of law is the basis for any democracy and without that, you have chaos.”-Meles Zenawi.

“The bedrock of our democracy is the rule of law and that means we have an independent judiciary, judges who can make decisions independent of political winds that are blowing.”

-Caroline Kennedy


[1] Student, I Year, B.C.A.Ll. B (Hons), Dr. Ambedkar Law University, School Of Excellence In Law, Chennai.

[2] Kelson’s pure theory of law or Vienna school of legal thought.

[3] C.K. Takwani, Lectures on Administrative Law 27, (3rd edn., Eastern publication).

[4] Felix Olusanjo Olatunji, Democracy and the challenge of the Rule of Law in developing democratic society, BEYTULHIKME (November 28, 2019), http://www.beytulhikme.org/Makaleler/792878417_05_Olatunji_(67-79).pdf.

[5] Supra note 3.

[6] International Commission of jurists, Held in Lagos in 1961.

[7] Shah bano case, (1985) 2 SCC 556; Mary Roy v. State of Kerala, (1986) 2 SCC 209; Sarla Mudgal v. UOI, (1995) 3 SCC 635; C. Masila Mani Mudaliar v. Idol of Shri SST, (1996) 8 SCC 525.

[8] Kishan Tiwari, Article 44: Uniform Civil Code, ADVOCATESPEDIA  http://journal.advocatespedia.com/uniform-civil-code/43/.

[9] M.H. Hoscat v. State of Maharashtra, (1978) 3 SCC 544; Hussainara Khatoon v. State of Bihar, (1979) 1 SCC 1360; Suk Das V. State of Arunachal Pradesh, (1986) 2 SCC 409.

[10] Water (prevention and control of pollution) Act, 1977; Environment (Proctection) Act, 1986; M.C. Mehta v. UOI, (1986) 2 SCC 176; M.C. Mehta v. UOI, (1987) 4 SCC 463.

[11] Lawyer’s effective 3, (July 2000).

[12] Maneka Gandhi v. UOI, AIR 1978 SC 597.

[13] Salam Rushdie.

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