Deteriorating Phase of Rule of Law in India

Pourna Vijay[1]

Topics Covered in this article

Abstract

There are a lot number of theories, principles and beliefs pertaining to the evolution and development of law. Naturalists accentuated on the eternal and divine nature of law, as they believed that laws were created by almighty. For Positivists, law is that which has been posited, that is made, enacted, or laid down in some prescribed fashion. In this regard, it is a deeply human product, an invention, artificial rather than natural. Meanwhile there were heated discussions and controversies as to the need for moral elements in law. I would say the law is the admixture or conclusive form of all these principles, other relevant sources and social factors, thus sanctity of law can be attributed to numerous principles.

Rule of Law is one such pivotal notion in which the legal and social sanctity of law is enrooted and is one of the ideals of our political morality and it refers to the ascendancy of law as such and of the institutions of the legal system in a system of governance. With leap of time and change in geo political equations, law has distanced away from its fundamental underlying principles, such as rule of law. This paper deals with relevancy and viability of Rule of Law in the current legal or political epoch in India. And it further focuses on the role of judiciary in developing and maintaining rule of law.

Keywords:Geo political equation, Judiciary, Rule of Law, Viability.

Introduction

Before moving on to the significance or viability of Rule of Law in Indian political arena or perspective, let us first understand the promulgated principle of Rule of Law. The concept of Rule of Law was established by Sir Edward Coke, the Chief Justice of King James I’s reign. He maintained that the King should be under God and the Law and he established the supremacy of the law against the executive and that there is nothing higher than law.  Further this so called theory was taken up and discussed by several other jurists and philosophers. Aristotle has endorsed the concept of Rule of law by writing that “law should govern and those in powers should be servants of the laws.” Plato has accentuated or emphasized on the pivotal nature of this concepts through his works, in which he stated that, “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state”.  A.V Dicey is yet another veteran jurist who further developed the principle of rule of law, whereby he developed the three distinct pillars of this concept, namely Absence of discretionary powers and supremacy of Law, Equality before law, and Predominance of legal spirit. Being a prominent ideal in our political tradition, the concept of Rule of Law was often controversial and contestable as law comprises of numerous factors.

India is  a quasi – federal democracy in which constitution act as the supreme power from which the other organs derive their  authority and responsibility .Indian constitution and polity has recognised or spotted the  fairness and morality of this so called concept which helps the government or the sovereign power to stabilise or secure the expectations of the nation and this has prompted to incorporate the principle of rule of law into its constitution and governance right from the inception . Justice R.S. Pathak of the Hon’ble Supreme Court has observed that “It must be remembered that our entire constitutional system is founded on the rule of law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason. “The presence of such a principle in the constitution is well palpable at the very first instance itself as the Preamble incorporates or enshrines the principle of Justice, Liberty, and Equality. Subjecting the constitution to further scrutiny will reflect or throw light on wide dimensions or  facets of rule of law incorporated in Indian Constitution , such as Article 13(1) which upholds the principle of Judicial Review ,Article 14  ensures equality before law , Article 19(1)(a) , freedom of speech and expression , Article 21 which endows the right to life and personal liberty , Article 32 and  Article 226 which connotes the existence of a robust , independent and unbiased judiciary .Thus it is clear that , Indian legal and social system was built adhering to the principle of rule of law .

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If we analyse the political arena of Rule of Law in India, we will find that Indian Judiciary has played a tremendous role in enlarging and retaining the scope of rule of law in India. Justice H.R. Khanna observed that “Rule of law is the antithesis of arbitrariness. Rule of law is now the accepted form of all civilized societies. Everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order. In every state the problem arises of reconciling human rights with the requirements of public interest. Such harmonizing can only be attained by the existence of independent courts which can hold the balance between citizen and the state and compel governments to conform to the law[2]” Further ,  , Justice Sethi observed that for achieving the establishment of the rule of law, the Constitution has assigned the special task to the judiciary.[3] This doesn’t mean that other organs have nothing to do with this so called concept, the legislature, executive and other factors have contributed enormously for progress and downfall of rule of law, but as the apex court or the judiciary is considered to be the ultimate interpreters of constitution, the part or efforts of judiciary outride’s the rest.

Now let’s see how did Indian judiciary tackled it and contributed in maintaining rule of law. I would say, judiciary has understood the vitality or the very notion behind rule of law better than other organs, and this understanding is one factor that has prompted judiciary in establishing the goal or task endowed upon it. In Raman Dayaram Shetty v. International Airport Authority of India, the Supreme Court held that the great purpose of rule of law is the protection of individual against arbitrary exercise of power, wherever it is found[4].

As we know, our Constitution neither flexible nor too rigid, thus the scope of amendments is limited. Whether Parliaments enjoys unfettered power under Article 368 to amend all parts of the constitution, including Part 3? This was one of the most controversial and debated issue right from Shankari Prasad’s case and the dilemma continued till Keshavananda Bharthi’scase. In KeshavanandaBharti’s case Supreme Court held that, Parliament enjoys the privilege and legacy to amend all articles including Part three, but court made it clear that this right is not unlimited and amendments has to be carried out without affecting the basic structure or essence of constitution. By fettering such intrusions from other organs and wings, judiciary has always tried to retain the element of rule of law in Indian polity and governance. The 13 judge bench in Keshavananada Bharti case laid down that the Rule of law is an, aspect of the basic structure of the Constitution, which even the plenary power of Parliament cannot reach to amend.

The principle of Judicial Review which is enshrined under Article 13(1) is yet another privilege that attributes in purporting rule of Law. Article13 (1) provides that any law that is made by the legislative has to be in conformity with the Constitute failing which it will be declared invalid. Thus through this provision Judiciary has always kept a check on the actions and laws passed by the parliament and thereby preserving the Rule of law and other fundamentals of Indian Constitution in the case of P. Sambamurthy & Ors. vs State Of Andhra Pradesh[5], when Article 371-D(5)  authorized the A.P Government to nullify any decision of the Administrative Services Tribunal, it was held violative of the rule of law. Holding the provision unconstitutional, the Supreme Court held that the power of judicial review should be used to ensure that rule of law is maintained. Judicial Activism is yet another wider principle similar to judicial review that has contributed in upbringing rule of law.

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Now here arises a question as to whether all these privileges and judicial innovation has succeeded in establishing the required fallout? I would say that despite the privileges and sanctity endowed upon judiciary, the viability or practical applicability of rule of law is limited, in fact it has been reduced as a mere underlying principle that exist only on papers. To add on, India has nourished and encompassed the so called principle all its organs and infrastructure, and the responsibility to nurture or maintain the element was not exclusively upon judiciary, rather it was deposited on all such infrastructures.

According to World Justice Project Index, India has been scoring a mixed bag, India stands somewhere in the middle of index. World Justice Project is an American independent, multidisciplinary organization established by William H Neukom, which is working with the stated mission of “working to advance the rule of law around the world.  WJP evaluate and determine the robustness of rule of law in countries across the world on the basis of 8 themes: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice. Report says that, India’s score and performance with regards to rule of law has improved under the Modi government but there is lot to improve. As per World Justice Project Index of 2017-2018, India ranks 62nd with a score of 0.52 among 113 nations. A detailed examination shows that, India ranks 36th in terms of the first theme, constraints on government powers, 67th in Absence of corruption, 32nd in Openness of government, 75th in terms of Fundamental rights, 98 in Security and order, 66th in Regulatory enforcement, 97th in Civil justice, and 66th in terms of Criminal Justice.

In the year 2016 , India ranked 66th in global index of WJP ,35th  in terms of the first theme ,constraints on government powers , 69th in Absence of corruption ,  28th  in Openness of government , 81st  in terms of Fundamental rights , 104 in Security and order , 77th  in Regulatory enforcement , 93rd  in Civil justice , and 71st  in terms of Criminal Justice .In the year 2015 India ranked 59th rank  , slightly  better than 2016 and 2017 , but there wasn’t any significant difference or improvement in its score  .

Further, as per 2017 reports, India ranks 131st among 188 nations in Human Development Index, 97th among 131 nations in Global Hunger Index, 79th in Corruption Perception Index. To add on, despite the fact that India has got special statutes and provisions subsumed in constitution for the protection and empowerment of vulnerable groups, women, minorities, backward casts etc. These vulnerable groups live in commotion and India is still under turbulence with regards to these issue. All these data and statistics reflect the fact that rule of law regime is in a degenerating phase in India. There is an atmosphere of lawlessness and negation of the rule of law which runs like a golden thread in the Indian constitution. Failure in accomplishing the desired effect can be attributed to several factors such as, Judicial restraint, that is under certain situations judiciary is being thwarted from interfering into certain matters, disappearance of separation of power among the organs too can be one reason, political inclinations, international politics etc.

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India exhibits a kind of reluctance in passing certain strong legislations which can bring about a fret on their run. Every bills will have to cross long hurdles to reach the people and society. Miraculously, if any such bills are passed, the government will try all possible ways to bring about maximum delay in its working and make it inefficient. The Lokpal bill is one such best example; Lokpal is the great mirage of Indian politics. The idea of having an anti-corruption ombudsman for the higher echelons of the government began way back in 1963 when the then law minister Ashoke Kumar Sen proposed it in Parliament. It took 45 years for the bill to breach the first barrier, which it did in 2013, when the Lokpal and Lokayuktas Act made it through after a mass movement led by Anna Hazare. Unfortunately, there were no progresses since then; Lokpal continues to be stuck at the second stage, no committee or authorities has been constituted for its implementation. During the Anna Hazare movement, before the passage of the Lokpal bill by the UPA government in 2013, the BJP was a strong supporter of the Lokpal movement. But now in power, its vehemence has cooled[6].

Further, there were many scenarios in which the government and its organs have undermined the laid down principles with an intention to make a statute ineffective and thereby protecting themselves. 2005 marked the enactment of a revolutionary legislation, right to Information Act, which brought about a transparency in the working of public authorities and thereby making them answerable to the queries of common men. The legislation has enough flaws due to the unnecessary delay caused by the concerned authoritarians in serving the required information, and now, the government has come up a set of amendments to be made in the act, such as permitting the withdrawal of appeals based on a written communication by the appellant and the closure of an RTI query upon the death of the appellant. This means information seeker could be browbeaten into withdrawing applications. Also, if the death of an appellant leads to the automatic closure of the RTI query, information seekers and whistle- blowers will be even more vulnerable to assault[7], if done; this will definitely kill the spirit of the legislation.

Conclusion

If such an approach continues, India will soon lose its values, fundamentals and will turn to be a land of lawlessness and human rights violation. This necessitates an urge to act diligently and stick to the idea of rule of law as lack of rule of law or moving away from this principal will eventually effect development, image of the country in global arena, human life, economy etc. According to me, for past few years India has got more affinity towards   Rule by Law, not Rule of Law. The Rule of Law is supposed to lift law above politics. The idea is that the law should stand above every powerful person and agency in the land. Rule by law, in contrast, connotes the instrumental use of law as a tool of political power. Rule by law is associated with the debasement of legality by authoritarian regimes.


[1] Student, Vit School Of Law.

[2] Additional District Magistrate v Shivakant Shukla, AIR 1976 SC 1207.

[3] Re: Arundathi Roy (2001), (Crl.) 10 of 2001.

[4] Raman DayaramShetty v. International Airport Authority of India, 979 AIR 1628.

[5] P. Sambamurthy& Ors. v. State of Andhra Pradesh, 1987 AIR 663.

[6] Indian Express,Lokpal: Not Now? Then When?, (Apr 29, 2017), http://www.newindianexpress.com/nation/2017/apr/29/lokpal-not-now-then-when-1598894.html.

[7] Geetanjali Krishna , RTI Act under siege , may slow down India’s fight against Corruption , (Apr 25th , 2018, 07.02 AM), https://www.business-standard.com/article/economy-policy/rti-act-under-siege-may-slow-down-india-s-fight-against-corruption-118042401292_1.html.