Rule of Law in Republic of India

Saloni Agnihotri[1] & Nikita Aggarwal[2]

Abstract

The essay aims at critically evaluating rule of law, the doctrine which has been adopted by all the democracies across the world, with special emphasis on India. The Rule of law provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application. With A.V. Dicey’s interpretation of rule of law as the base, the essay talks about new dimensions to it. Rule of law is dynamic and has adapted itself with changing times. Complexity of human lives and decline of moral values in man, rule of law is very essential to keep the society in order. Rule of law in itself cannot serve any purpose. The legislature, the executive and the judiciary need to work in cooperation in order to meet the ends of Rule of Law. The three pillars can strengthen or dismantle rule of law and thus the democracy. Next on, the article talks about how important the supremacy of rule of law is for a democracy. It shows how rule of law is important to maintain orderliness and further strengthes democracy while also cautioning about how the improper use of the machinery of rule of law might lead to the rooting out of democracy and establishment of say, a dictatorial regime. Further on, the essay discusses how if India is to be truly democratic then the ideals provided under rule of law as given by British Jurisprudence must be upheld in the face of any and every adversity. In the end, the essay mentions the interface between Republican Ideals and Rule of Law. It explains how Republican ideology restricts the application of rule of to some extent by giving unbound freedom to individuals which ultimately leads to chaos and disorderliness thus hampering the application of law.

Viability of Dicey’s Rule in 21st Century

Every civilization has experienced the rule of a supreme power, a power which is undisputed. Ranging from an ‘omnipotent’ king to religious scriptures, some or the other form of power has governed the societies of all times. While such systems propagated the ideals of equality and justice on paper, arbitrary powers with the rulers seldom allowed subjects to enjoy them in reality. Overtime, law began to be seen as supreme power. The superiority of law above everything is called rule of law. It was A.V Dicey who explained what actually is meant by rule of law. ‘It means, in the first place, supremacy or predominance of regular law as opposed to the influence of arbitrary power or even of wide discretionary authority on the part of the government. Secondly it enforces equality before law and thus excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of ordinary tribunals. Thirdly, it emphasizes the role of judiciary in protecting the rights of citizens.’[3] The doctrine of rule of law places the law of the land at the highest pedestal, where there is no space for arbitrariness. In the 21st century, when man’s steps know no bounds, the existing laws fail to cater to the needs. Laws as old as Indian Penal Code, 1860 continue to rule people with few amendments here and there. In an attempt to meet the deficiencies of existing laws, new laws are formulated (POCSO, Juvenile Justice Act, People with Disability Act) but the old ones are not repealed, the incongruity between the two hampers delivery of justice.

Article 13 of the Indian Constitution very clearly lays down the principle of equity before law, but when it comes to powerful people, this principle finds no place for itself. Salman Khan, the superstar with a huge fan following, got bail hours after being convicted in a hit and run case, as the High Court went out of its way to hear his bail plea, Sanjay Dutt manages to be in and out of jail in no time, despite of being convicted of charges as serious as terrorism, Fardeen Khan who was caught buying cocaine got away easily as police was pressurized into dismissing his case as drink and drive and the list does not end here. While the constitution treats women at par with men, some laws which are discriminatory against women still exist in India. A divorced Hindu Women cannot claim her right in the property of her in-laws and is expected to be happy with just monthly maintenance, a Muslim man can topple a woman’s life in no time by just saying Talaq thrice, a man not women are considered natural guardian of a child, a woman under adultery laws is treated nothing more than an object where her husband’s consent decides the criminality of act and not her own. While the law makers tend to impart equal status to transgenders, the newly proposed transgender bill is nothing but a farce in the name of equality.

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In 21st century, when man is power hungry, corruption is rampant, human nature of man is dying, rule of law still manages to serve the interests of society. It sets a boundary for men who otherwise would have made this world a hell. If corruption is done away with and law reforms are taken more seriously, rule of law is the best. It still is humankind’s best hope for freedom and justice.

Role of judiciary in maintaining rule of law

Judiciary is one of the building pillars of any democracy. Rule of Law grants right to people but these rights would be ‘empty promises’ without enforcement machinery. If the violation of these rights is not checked, rule of law would have no meaning. Justice for all is the aim of Rule of Law and it cannot be achieved without the presence of an independent judiciary. The Judiciary not just ensures the enforcement of existing rights, but also adds new dimensions and interpretations to them in accordance with changing times. In Common legal systems, judicial decisions form a major part of the law of the land. The laws written in black and white by the legislature would have failed to serve the purpose had it not been judiciary who in each case considering the circumstances imparts true justice.

Indian Judicial system since independence has performed its functions fairly well. It has emerged as a stronger body braving all challenges, be it Indira Gandhi’s attempt to restrain its powers or time and again government’s unjust interference in judicial appointments or recurring charges of corruption against its members.

The Indian Judiciary refused to act as a passive interpreter and came up with Absolute Liability rule in MC Mehta v. UOI[4]and Bhopal Gas Leak Case[5]; it extended second generation rights like ‘housing’ in Olga Tellis v. Bombay Municipal Corporation[6]; when the law-makers failed to take any action, the Supreme Court came up with NALSA Judgement upholding rights of transgender community[7]; in this age of technology it ensured the citizens of right to privacy.

The role of judiciary in maintaining rule of law cannot be undermined. But to make it possible for judiciary to do justice to its position, its independence has to be ensured and it has to be provided with the requisite infrastructure. The country’s courts lack basic infrastructure for judges, court staff, lawyers and litigants. Adequate infrastructure is a sine qua non for reduction of pendency and clearing backlog of cases in courts. Infrastructural development needs to be undertaken to ensure citizens’ right to speedy trial. The judicial decisions need to be made more transparent.

While Judiciary plays a very important role in maintaining rule of law, the cooperation from legislature, executive and the public is paramount. Budgetary allocations towards development of judicial infrastructure must be increased, judges must not fall prey to political pressure.

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

Executive arbitrariness against rule of law

Legislature, in order to deliver its functions cannot work in isolation. For reasons of practicality and convenience, some of the functions are delegated to executive. Although complete separation of powers between legislature and executive is not possible, separation of powers principle certainly imposes restrictions on each branch, which must be adhered to in order to achieve the ends of freedom and justice for all. While there is a system of checks and balances, it is quite possible for the executive branch to overstep its powers and act arbitrarily. National Emergency imposed by Indira Gandhi very well demonstrates how executive can take over and cripple the whole nation. The period of emergency was a dictator like rule where rule of law almost met its end, freedom of press was curbed, detentions increased, powers of judiciary were being limited. More recently, Prime Minister Narendra Modi’s Demonetisation is another example; the decision affecting the whole nation was taken without consulting Council of Ministers. Scams like 2G Spectrums, Augusta Westland Scam, Waqf Board Land Scam, Coalgate Scam, are all outcomes of executive acting in violation of laws.

Arbitrary exercise of powers is detrimental not only to rule of law but to the very spirit of democracy. Executive must act in accordance with the law, and all its actions must be governed by reason and logic in the interest of public. The Judiciary and Legislature must not fail in their duty to keep a check on the executive. The coordination among the three and respect for law are paramount for rule of law to prevail.

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Democracy and rule of law: opposites or coherence

The experience of India as a democracy suggests the extreme interdependence of democratic ideals and rule of law on each other. At the outset of its journey as an independent nation in 1947, India’s aspirations of being a democracy were dismissed by critics from all across the globe. The near 12% literacy rate, the majorly rural, technologically and industrially backwardness of the population of India were some of the reasons that made all the political experts everywhere reconsider India’s choice of being a democracy. Today, India’s stature as a successful, mature and ideal (not to mention the largest) democracy in the world is a matter of great pride for all the Indians worldwide. This feat could come about only because of the effective predominance of rule of law in all the right ways and to just the right extent in India. Rule of law is one of the most important and supportive pillars on which the sanctity of a democracy lies. However, in order to ensure the success of a democracy, the predominance of rule of law should be limited in its extent and impact. Care should be taken that the power of law does not strangle the freedom of its subjects. Instead, law should have a stronghold in protecting and promoting the rights of the people of a nation so that they can freely exercise their choices in a democracy. Hence the interdependence of democracy and rule of law on each other is beyond question. History is evidence of the fact that while, at some points of time, the predominance of rule of law strengthened Indian democracy at yet various other points, the former endangered the latter. The constitution of India, framed in 1951, gave various fundamental and legal rights to the citizens of India. This was done to ensure that each citizen got his rightful say in the nation making process. It was a commendable step towards democracy anywhere in the contemporary world. These rights, namely, the right to freedom of speech and expression, the right to vote, the right to equality, the concept of universal adult franchise and various other similar rights have gone a long way in maintaining and upholding the sanctity of democracy in India. While India’s journey towards democracy has been incredible, it has not been a cakewalk. It has had its own share of hardships. The threat to democracy during the Indira Gandhi’s reign with the imposition of emergency (post the R.K. Narayan saga) and the introduction of 42ndamendment could be averted only because of the wise use of the machinery of law. Had it not been for the supremacy and predominance of the rule of law in India, upholding democratic ideals would not have been possible. The success of democracy in a country as culturally diverse as India is totally owed to the rule of law prevalent here. Hence, it is safe to say that democracy and rule of law are complementary to each other in so far as the rule of law is not arbitrary and dictatorial.

British jurisprudence and rule of law

Since time immemorial, there has been a great degree of divergence in the meaning attached to “rule of law” by different scholars all across the world. This divergence rose primarily because of the different perceptions of the meaning of law everywhere. While for some ‘rule of law’ meant rule of the person in power and authority, for some others it meant rule of ‘reason’. The meaning attached to rule of law in British Jurisprudence is a little different from these in the sense that rule of law in Britain means rule according to already settled and well established principles. As mentioned by A.V. Dicey, a 19th century British constitutional expert, rule of law in Britain is basically structured on three fundamental pillars. These are supremacy of law, equality before law and predominance of legal spirit. It means that law is supreme and both the ruler and the ruled are bound by it. Everyone is equal before law and law does not entertain discrimination of any sort. In case of any conflict, the solution should be governed by already established legal principles and not by the ruler’s or anybody’s personal interests. According to Dicey, the Government should bow before law, and not before people. This would ensure that the government maintains its integrity and protects the three fundamental pillars from falling flat. Law should be the means to silence the tyrant and establish orderliness. As far as the application of Rule of Law in British Jurisprudence is concerned it is safe to say that the very basis and essence of British Jurisprudence is Rule of Law. However, it is also true that the picture of rule of law that exists on paper might not necessarily exist in reality. Various loopholes in the application of rule of law to practical life exist. Theoretically, rule of law in the truest sense can be established only when each person gets justice. In order to become completely democratic, adequate protection of fundamental rights is a must. Practically, it is possible only when each person has access to justice. However, with the dramatic increase in the court and tribunal fees in U.K., the recourse to justice has become very hard and priced for the people. As a result, the poor cannot afford justice and the democratic ideals stand defeated. The scenario in India, sadly, isn’t very different either. Despite the fact that India borrowed the concept of rule of law from Britain and enshrined all such provisions as were required to ensure the supremacy of law, the reality is way different from it. The evils of rampant corruption, increasing rates of crimes, poor condition of women, children and elderly is a sad reality that still plagues India and clearly remains unaffected by the application of rule of law. Besides this, various measures, such as closed room trials, taken in the name of national security also curtail fundamental rights provided under rule of law. It must, however, be taken into consideration that if India is to be truly democratic then the ideals provided under rule of law as given by British Jurisprudence must be upheld in the face of any and every adversity.

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Republican ideals restricted by rule of law

Republican ideology believes that the government should interfere in the lives of people only when it is asked to. People should be left to fend for themselves. According to this ideology the government should not interfere in the progress of an individual towards prosperity. This ideology believes in giving people the freedom it thinks they deserve. Accordingly, it allows people various freedoms such as freedom of religion, freedom to make personal choices while also according them certain responsibilities such as fiscal responsibilities of themselves. Such an ideology would naturally lead to the highest level of liberty. It would allow people to attain their maximum potential. It would also make the people ‘realize’ the sense of responsibility they owe towards one another, instead of imposing it on them through rules and regulations. However, while on the face of it, it might seem attractive, there are a lot of aspects when and where this very libertarian ideology restricts the application of rule of law. For instance, the Republican Ideology on gun control in U.S.A. In this aspect also, carrying on with its most fundamental principle of utmost personal liberty and individual responsibility, the Republican stand advocates the freedom of individuals to possess arms the associated duty to use them diligently. Such a stand might clearly lead to an increase in the rate of crimes associated with shooting. This would lead to chaos and disorderliness and would clearly restrict the ambit and application of rule of law. In a country like India, with such a high population, the Republican ideology will clearly hold no water. Given the high rates of such as murder, abduction, rape et. al. committed in India, it is very essential to impose such rules and regulations as would satisfactorily bring down the crime rates in the country. This can come about only through the proper administration and application of rule of law. Once the people start understanding the responsibility they owe towards the society, the rule of law can be made a little flexible and Republican Ideals be brought into action. While Republican ideology is a commendable way to achieve individual liberty, the importance of application of rule of law to protect this very liberty cannot be denied. Hence, it can be safely concluded that Republican ideology does hamper and restrict the application of rule of to some extent. In so far as it accords liberty to individuals, it can be said to assist law to some extent. However, in its very act of giving unbound freedom to individuals which ultimately leads to chaos and disorderliness, the former clearly restricts the latter.


[1] Student, Rajiv Gandhi National University Of Law, Punjab.

[2] Student, Rajiv Gandhi National University Of Law, Punjab.

[3] Dicey, A.V. Introduction to the study of the Law of the Constitution, (Palgrave Macmillan UK, 1979).

[4] MC Mehta v. UOI, 1987 SCR (1).

[5] Bhopal Gas Leak Case, AIR (1989) (1) SCC 674.

[6] Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC180.

[7] NALSA Judgement, (2014) 5 SCC 438.