Evolution of Rule of Law into the 21st Century

Sheetal. M[1] & Gitanjali Vinod[2]

Abstract

The concept of Rule of law has been a part of human society from time immemorial. As it began to evolve from a religious paradigm to a secular one, several philosophers tried to define it and implement it to safeguard the rights of the people. One of the first and still most influential studies of the Rule of Law was that AV Dicey in an Introduction of the Study of the Constitution. With the passage of time, it became an integral part of government systems of various countries and its definition incorporated features such as separation of powers, independent judiciary and judicial review. After gaining independence, the Rule of Law also became the foundational principle of the Indian Legal System. With the Indian Constitution having borrowed features from various constitutions and a flexible system of separation of powers, the jurisprudence of the Supreme Court has evolved with time from the flawed judgement of the ADM Jabalpur case to the judgement given to rectify its own mistakes in the recent Privacy Judgement. The article incorporates in it the origin, evolution and current relevance of Rule of Law in India.

Rule of law

The concept of Rule of Law implies that a state is not governed by a ruler or an elected representative, but by the law.

It means equality of law and equal protection of law; it means guarantee of life, liberty and property; it means that nobody’s life, liberty and property can be taken without authority of law. Nobody can be punished without trial which must be fair, expeditious and speedy.[3]

Origin

The concept of a system of law to which everyone is subject to irrespective of their status and power has existed since time immemorial. This is evident from the Latin maxim

“La ley est le plus haute inheritance, que le roy ad; car par la ley it meme et toutes ses sujets sont rules, et si la ley nefuit, nul roi, et nul inheritance sera”

It means- the law is the highest inheritance that the King has, for by the law, he himself and all his subjects are ruled, and if the law is not there, there will be no King and no inheritance.  The lesson of history is that when the Rule of Law gives way to the Rule of Man, the dykes of Law and Justice breaks and Revolutions begin.[4]

The Ten Commandments brought by Moses down from Mount Sinai and the Torah was binding on all and served as a restrained on their power.

In Manusmriti, the people had the power to overthrow him in case he violated the principles of Dharma.

The Rule of Law went through a paradigm shift from religious to a secular approach when it was adopted by Socrates. Less than a century later, in “The Politics”, Aristotle stated that ‘the Rule of Law is preferable to that of any individual.[5]

Chanakya, from the Mauryan era explained Rule of Law to be such that the king is governed by the word of law.

The formal origin of rule of law is credited to Sir. Edward Coke, which is derived from a French phrase ‘la principe de legalite’, which means ‘the principle of legality’. With the signing of the Magna Carta in 1215, the movement in England towards a more secular and modern definition of the Rule of Law began. One of the principles stated in it was- everyone is subject to law even the King, and guarantees the rights of individuals, the right to justice, and the right to a free trial.

Interpretations by philosophers

The concept was more recognized and concrete during the 17th and 18th centuries. Initially, Thomas Hobbes dismissed the Rule of Law as illogical. Hobbes argued that the sovereign could not be bound by law because the will of the sovereign was the law.[6] Montesquieu, on the other hand, provided one of the most important and intricate defences of separation of powers (one of the essentials of Rule of Law). For Montesquieu, the separation of powers was crucial, since it addressed the points of confrontation between government, law and individuals, and it would be an effective barrier against abuse of laws by the government.

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A.V. Dicey ‘s interpretation & criticism (Tocqueville)

The first and still one of the most influential studies of the Rule of Law was done by A.V. Dicey. Dicey identifies three key aspects of the Rule of Law. They are:

  1. Supremacy of the Law
  2. Equality before the Law
  3. Predominance of legal spirit.

In his book ‘Introduction to the Study of the Law of the Constitution’, he explains how most people, who employ the characteristics of law and its supremacy, define them full of vagueness and ambiguity. Even Tocqueville, according to Dicey, was clearly perplexed how to define a feature of the Rule of Law as employed in England. On the other hand, Dicey implies that the absence of arbitrary power contributes to the supremacy of law.

Further, he explains ‘Predominance of legal spirit’ to be the same as-

There is no higher law other than the rights of individuals as determined by the courts.[7]

His study is important and still forms a part of any definition of the Rule of law because it represents one of the first and most significant attempts to define the Rule of Law. However, his third principle demonstrates one of the major difficulties in defining Rule of Law as it does not say enough about the content of laws which may be properly passed by the legitimate law-making bodies.

Essential features of rule of law

To incorporate in the Rule of Law in the governance of a country, it must consist of the following features: All laws should be open, clear and probable

  1. Laws should be relatively stable.
  2. Making of laws should be guided by open, stable, clear and general rules.
  3. Independence of Judiciary must be ensured.
  4. Principle of natural justice must be followed.
  5. The court should have review powers over the implementation of the principles.
  6. Courts should be easily accessible.
  7. The discretion of the crime-preventing agencies should not be allowed to subvert the laws.

Separation of powers, which is an essential feature of the Rule of Law, does not seek to diminish the power of the state. It instead seeks to assure its proper exercise. In practise, a perfect and complete separation of powers is difficult. There will be an overlapping of powers, however, there has to be a system of checks and balances to ensure that the core functions of each body is not compromised.

Judicial Independence, which is guaranteed by the separation of powers, has a dual goal: to guarantee procedural fairness in the individual judicial process and to guarantee protection of democracy and its values.[8]

According to Siracusa Principles, the two foundations of Judicial Independence are:

  1. Personal Independence of the judge to decide matters before him, in accordance with his assessment of the facts and his understanding of the law, without any improper influences, inducements, or pressures. Judges must be independent, impartial and fearless in dispensation of justice. Fearlessness implies that they should not be afraid of the consequences of their judicial decisions, and they should not be susceptible to any temptation (populism/adventurism) or intimidation.
  2. Institutional Independence from the executive and legislature and has jurisdiction, directly, or by way of review, over all issues of a judicial nature.

The principles of separation of powers, independence of the judiciary and judicial review ensure that the judicial branch can fulfil its role in protecting the constitution and its values.

Supreme Court and constitution

The US Supreme Court was the first Supreme Court to be established in the world. The passing of the Judiciary Act of 1789 and Article III of the US Constitution led to the establishment of the US Supreme Court.

One of the landmark cases that contributed to the evolution of the judicial review is Commonwealth v. Caton.[9] Judge George Wythe gave the strongest and fullest defence of judicial authority over legislation made by any judges in the case. Wythe defended judicial review for political balance of power. However, he did not claim that judicial review was part of the judiciary’s legal responsibility.

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In the case Trevett v. Weeden, the defendant’s lawyer James Varnum quotes Blackstone when he said:

“acts of Parliament that are impossible to be performed; and if there arise out  them collaterally any absurd consequences, manifestly contrary to common reason, they are, with regard to those collateral consequences, void.”[10]

This case’s decision set precedent for Marbury v. Madison[11]regarding judicial review.

In Marbury v. Madison, though it was evident to the court that Marbury had the right to claim his commission from Madison, it was in itself unconstitutional because it tried to extend the Court’s original jurisdiction beyond that which Article III and therefore he did not win the case. In its inability to provide Marbury the remedy, on February 24th, 1803, the Supreme Court led by Chief Justice John Marshall confirmed and established the principle of judicial review.

Features of Constitutions from around the world were incorporated while drafting the Constitution of India. Some of the features taken from the US Constitution are the Charter of Fundamental Rights, power of Judicial Review, Independence of Judiciary, written Constitution, Preamble and the post of Vice President. It was from the earlier American example that the Constitution was made the supreme law of India.

Existing legal situation

A recent case that dealt with the principles of the separation of powers and the independence of judiciary was the NJAC Case or the Supreme Court Advocates on Records Association v. Union of India[12]. This case came into existence when there was a widespread dissatisfaction with the Collegium System of appointment of Judges, due to increased corruption and therefore was decided to be substituted by National Judicial Appointments Commission (NJAC). The issue in case of application of NJAC was that there is an increased interference of executive and the legislative upon the judiciary, and an ambiguity arises, because the criterion for the members to be ‘eminent’ is undefined. And therefore, in this judgement, NJAC Act and the 99th amendment was struck down.   

Judgements and procedures that went against rule of law

Supremacy of law over arbitrary rule – Sanal Edamaruku

Article 19 (a) guarantees right to freedom of speech and expression. However, the state and private petitioners have equally exploited India’s penal code to harass, censor or silence individuals.

When the crucifix standing in front of the Church of Our Lady of Velankanni in Mumbai began to miraculously drip tears, huge crowds began to gather, pray, and collect the water in vials. The TV channel, TV-9 invited Sanal Edamaruku, an Indian author and rationalist to investigate a “miracle” that caused local excitement. His investigations showed that it was nothing more than a nearby drainage. The entire investigation was caught on tape. The Catholic Secular Forum in Mumbai filed a complaint against Sanal on the charges of blasphemy under Section 295(A) of the Indian Penal Code in several police stations around the city.

On July 31st, 2012, Edamaruku moved to Finland to avoid the possibility of indefinite jail time and when his fellow campaigner Narendra Dabholkar was murdered in 2013, Edamaruku felt returning could put his life in risk.

Failure to protect the fundamental rights of Sanal and his fellow campaigner from the misuse of the blasphemy law is an indicator of how at times the supremacy of law is overshadowed by the arbitrary use of power by authorities.

Predominance of legal spirit – Jallikattu ban withdrawal

Jallikattu is a traditional sport of Tamil Nadu which involves bulls. Due to the cruelty inflicted on the bos indicus bulls and the threat to public safety, the Animal Welfare Board of India filed a case in the Supreme Court for an outright ban on Jallikattu. On November 25th, 2010, in the case Animal Welfare Board of India v. A. Nagaraja[13], the Government of Tamil Nadu was permitted to allow Jallikattu as long as a written permission was sought from the District Collectors one month prior to the event. However, the Ministry of Environment and Forests issued a notification in 2011 that banned the use of bulls as performing animals but the practice continued to be performed under Tamil Nadu Regulation of Jallikattu Act of 2009. On May 7th , 2014, in the case Animal Welfare Board of India v. A. Nagaraja[14] the Supreme Court of India struck down the state law and banned Jallikattu altogether. It was held that

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Every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word “life” has been given an expanded definition and any disturbance from the basic environment which includes all forms of life, including animal life, which are necessary for human life, fall within the meaning of Article 21 of the Constitution. So far as animals are concerned, “life” means something more than mere survival or existence or instrumental value for human beings but to lead a life with some intrinsic worth, honour and dignity.[15]

On January 8th, 2016, the Ministry of Environment and Forests permitted the continuation of the tradition under certain conditions. However, the Supreme Court of India issued a stay on this order, upholding the ban, after it received a petition filed by the Animal Welfare Board of India and PETA India which led to protests all over Tamil Nadu. On January 8th, 2017, several hundreds of protesters conducted a rally at Chennai Marina opposing the ban on Jallikattu. The Supreme Court issued notices to the central government and the Tamil Nadu government and later refused to lift the stay.

However, due to the protests, on January 21st, 2017, the Governor of Tamil Nadu issued a new ordinance that authorized the continuation of jallikattu events. On January 23rd, 2017 the Tamil Nadu legislature passed a bi-partisan bill, with the accession of the Prime Minister, exempting jallikattu from the Prevention of Cruelty to Animals Act (1960)[16].  One of the main defences for the continuation of the sport is Article 29(1) and Attorney General K.K. Venugopal referred to the Supreme Court the decision made in Ahmedabad St. Xavier’s College Society case in which it was pointed out that the scope of Article 29 (1) does not necessarily confine to the cultural rights of minorities but may well include the majority.

However, it can be noticed that the spectacle clearly violated the Prevention of Cruelty to Animals Act, 1960 which was passed:

“to prevent the infliction of unnecessary pain or suffering on animals and for that purpose to amend the law relating to the prevention of cruelty to animals”.[17]

Further, the sport is not a ‘necessity’ but a luxury. The first objection to utilitarianism (proposed by Michael Sandel) questions infliction of harm supported by the greater lot. What makes one’s life more valuable than another?

The failure to uphold the ban to the very end shows how governance with respect to this issue deviated from the spirit of the Rule of Law.

Conclusion

The Rule of Law that is prevalent in the Indian Legal System makes sure that there exists no arbitrary or oppressive rule and further it ensures that the State does not intervene or step into the individual rights of people. With reference to the instances stated in this paper where the Rule of Law was violated, all the loopholes in the laws and judgements should be looked into carefully, such that these are defined with a bit more clarity than with vagueness. This can make sure that the concept of Rule of Law is upheld in its entirety.


[1] Student, Ballb, 2nd Year, Symbiosis Law School Hyderabad.

[2] Student, Ballb, 2nd Year, Symbiosis Law School Hyderabad.

[3] Dr. G.P. Tripathi, Comparative Jurisprudence (Asian Offset Printers 2007).

[4] Roedad Khan, Rule of Law or Rule of Man.

[5] Francis Neate, The Rule of Law: Perspectives from Around the Globe, (LexisNexis 2014).

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Commonwealth v. Caton, 4 Cal (Va.)5,20 (1782).

[10] The Case Trevett against Weeden (1787).

[11] Marbury v. Madison, 5 US (1 Cranch) 137 (1807).

[12] Supreme Court Advocates on Records Association v. Union of India, (2016) 5 SCC 1.

[13] Animal Welfare Board of India v. A. Nagaraja, (2010) 15 SCC 190.

[14] Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547.

[15] Ibid, p. 551.

[16] Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 (India).

[17] Prevention of Cruelty to Animals Act, 1960 (India).

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