Rule of Law in Democracy*

Irrespective of what era we are living in, who the rulers are, what the mode of governance is, this is one topic which is never going to lose its sheen and relevance. Because, the story of “Rule of Law” is nothing but the story of civilisation of humans.

When talking about “Rule of Law”, it is necessary to first understand what the law is. Law, in its most general sense, is a tool of social control which is backed by the sovereign. However, is this definition complete in itself? I would think not. Such a definition of law makes it a double-edged sword. It can be used not only to render justice, it can also be used to justify oppression.

Renowned scholars have therefore argued that a law cannot really be classified as a “law” unless it imbibes within itself the ideals of justice and equity. An “unjust law” might not have the same moral legitimacy as a “just law”, but it might still command the obedience of some sections of the society to the detriment of others.

What is clear is that both these thoughts highlight certain facets of what is meant by the term “law”. I think that any law backed by a sovereign, must be tempered by certain ideals or tenets of justice. Only a State that is governed by such law, can be said to have the “Rule of Law”.

The legal history of pre-Independence India gives us a clear picture of this. The British colonial power enacted various laws to further their economic and political interests, at the cost of the colonised. The British used the law as a tool of political repression, enforcing it unequally on the parties, with a different set of rules for the British and for the Indians. It was an enterprise famous for “Rule by Law”, rather than “Rule of Law” as it aimed at controlling the Indian subjects. Judicial remedies lost their significance, as they were administered keeping in view the best interests of the colonial power, rather than what was just or legal.

The historical trial of Raja Nand Kumar in 1775, a case famously recounted as the “Judicial Murder of Raja Nand Kumar” amply demonstrates this. Raja Nand Kumar had accused the then Governor General Warren Hastings of receiving bribe. Shortly after this incident, charges of forgery were preferred against Raja Nand Kumar. On 15-6-1775, Raja Nand Kumar was found guilty of the charges and was awarded the capital punishment by Chief Justice Impey, a close aide of Warren Hastings. The trial had many peculiarities: such as instead of being tried before the local court by local men he was tried by a British Judge and jury, who arguably did not have jurisdiction. Historians have later stated that Raja Nand Kumar paid the price for daring to accuse the Governor General Warren Hastings.

Around 150 years later, there was a growing consciousness about the values of liberty, equality, justice and fraternity. As part of persistent and organised campaign for the freedom, the Indian masses were increasingly made aware of how unjust and oppressive the discriminatory laws of the colonisers were. In 1922, during his famous trial, Mahatma Gandhi captured the imagination of the nation with the following words:

Little do they realise that the Government established by law in British India is carried on for this exploitation of the masses …. In ninety-nine cases out of hundred, justice has been denied to Indians as against Europeans in the courts of India.

He thus concluded, “In my opinion, the administration of the law is thus prostituted, consciously or unconsciously, for the benefit of the exploiter.”

Our struggle for Independence thus marked our journey towards establishment of a State defined by the “Rule of Law”. The move from a colonial past to the present required a shift from the colonial idea of laws imposed by foreign rulers for their benefit, to laws given by our people to govern themselves, laws which are not merely commands but are also embodied by a sense of justice. There was a need to give guarantee for the laws to be framed with a human face for the benefit of the masses. A framework was needed to ensure this. The framework that which forms the binding link between law and justice in this country. That is what “We the people” gave to ourselves in the form of the Constitution.

When the framers set out to draft the Constitution, the existing social conditions played a crucial role. The newborn country was faced with enormous challenges such as illiteracy, poverty, immense religious, ethnic, linguistic and social diversity. The framers envisaged a document which not only took care of the prevailing conditions but would also continue and be relevant for all times to come. It is therefore, conceived as a living document whose contents evolve over the years, as the courts deal with new situations and question and interpret the Constitution in the light of the same.

The Constitution embodies within itself the concept of Rule of Law and the same can be witnessed from our Preamble, the fundamental rights, the directive principles of State policy, the separation of powers, etc. By situating the concept of Rule of Law at the confluence of three important values — human dignity, democracy and justice, our Founding Fathers showed the path for the rest of the world too.

In its 1955 “Act of Athens”, the International Commission of Jurists explicitly stated the “State” has to be subject to the law. Subsequently in the year 1959, under the support of the same Commission, International Congress of Jurists — consisting of 185 Judges, practising lawyers and teachers of law from 53 countries — convened in New Delhi and issued the “Declaration of Delhi”, which is one of the seminal documents on rule of law. After reaffirming the “Act of Athens” and particularly the need for a completely independent judiciary, the International Congress of Jurists declared that the rule of law “is a dynamic concept which must be employed to safeguard and advance the civil and political rights of individual in a free society.”

Now, more than 70 years down the line, the entire world is facing an unprecedented crisis in the form of Covid-19. At this juncture, we necessarily have to pause and ask ourselves as to what extent we have used the Rule of Law to ensure protection to, and, welfare of all of our people. I do not intend to provide an evaluation of the same. Both my office and my temperament prevent me from doing so. But I began to feel that this Pandemic might yet be a mere curtain raiser to much larger crises in the decades to come. Surely we must at least begin the process of analysing what we did right and where we went wrong.

Coming back to the topic, from within the perspective of legal positivism, many conceptions of Rule of Law have emerged. From Dicey to Lord Bingham, different formulations of principles informing the concept of rule of law have been made. It would be impossible to adequately address the rich tapestry woven by human intellect in this area in the course of a speech. However, I thought it would be relevant to emphasise four principles, given the current events across the globe.

The first principle is that “laws must be clear and accessible”. This is the fundamental point that when laws are expected to be obeyed, the people at least ought to know what the laws are. There cannot therefore be secretive laws, as laws are for the society. Another implication of this principle is that they should be worded in simple, unambiguous language. In furtherance of the above principle, in India we are constantly striving to make legislations and judgments accessible to general public by translating them into various Indian languages.

The second principle relates to the idea of “equality before the law”. Laws are to be applied on an equal basis in a non-arbitrary fashion. This is, of course, an important fundamental right promised under the Indian Constitution.

An important aspect of “equality before law” is having equal “access to justice”. I must emphasise that, in a democratic country like ours, access to justice forms the bedrock of the “Rule of Law”. However, this guarantee of equal justice will be rendered meaningless if the vulnerable sections are unable to enjoy their rights because of their poverty or illiteracy or any other kind of weakness. In India, the Legal Aid Authority is estimated to serve more than 70% of the population who are entitled for free legal aid, making the Indian Legal Aid system one of the largest in the world.

Another aspect I want to highlight over here, which might be a bit of a tangent but is certainly very important, is the issue of “gender equality”. Traditional roles are changing within the family, as is the structure of the family itself. Most nations have recognised equality and dignity of women, either constitutionally or statutorily.

The legal empowerment of women not only enables them to advocate for their rights and needs in society, but it also increases their visibility in the legal reform process and allows their participation in it.

Bias and prejudice necessarily lead to injustice, particularly when it relates to the minorities. Consequently, the application of the principles of Rule of Law in respect of vulnerable sections has to necessarily be more inclusive of their social conditions that hinder their progress.

This leads me to the third principle, which is that members of society have the “right to participate in the creation and refinement of laws” that regulate their behaviours. We live in a democracy. The very essence of a democracy is that its citizenry has a role to play, whether directly or indirectly, in the laws that govern them. In India, it is done through elections, where the people get to exercise their universal adult franchise to elect the people who form part of Parliament which enacts laws. Incidentally, we, the Indian people gave ourselves the Universal Adult Franchise from day one of the coming into existence of our Republic, unlike some of the “advanced democracies”.

In the seventeen national general elections held so far, the people have changed the ruling party or combination of parties eight times, which accounts for nearly 50 per cent of number of general elections. In spite of large-scale inequalities, illiteracy, backwardness, poverty and the alleged ignorance, the people of Independent India have proved themselves to be intelligent and up to the task. The masses have performed their duties reasonably well. Now, it is the turn of those who are manning the key organs of the State to ponder if they are living up to the constitutional mandate.

It has always been well-recognised that the mere right to change the ruler, once every few years, by itself need not be a guarantee against tyranny. The idea that people are the ultimate sovereign is also to be found in notions of human dignity and autonomy. A public discourse, that is both reasoned and reasonable, is to be seen as an inherent aspect of human dignity and hence essential to a properly functioning democracy. As Professor Julius Stone observed in his book The Province of Law, elections, day-to-day political discourses, criticisms and voicing of protests is integral to the democratic process.

The idea of the judiciary, as a “guardian of the Constitution, brings me to the fourth and final principle — the presence of a “strong independent judiciary”.

The judiciary is the primary organ which is tasked with ensuring that the laws which are enacted are in line with the Constitution. This is one of the main functions of the judiciary, that of judicial review of laws. The Supreme Court has held this function to be a part of the basic structure of the Constitution, which means that Parliament cannot curtail the same.

But the importance of the judiciary should not blind us to the fact that the responsibility of safeguarding constitutionalism lies not just on the courts. All the three organs of the State i.e. the executive, legislature and the judiciary, are equal repositories of constitutional trust. The role of the judiciary and scope of judicial action is limited, as it only pertains to facts placed before it. This limitation calls for other organs to assume responsibilities of upholding constitutional values and ensuring justice in the first place, with the judiciary acting as an important check.

For the judiciary to apply checks on governmental power and action, it has to have complete freedom. The judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the Rule of Law would become illusory. At the same time, Judges should not be swayed by the emotional pitch of public opinion either, which is getting amplified through social media platforms. Judges have to be mindful of the fact that the noise thus amplified is not necessarily reflective of what is right and what majority believes in. The new media tools that have enormous amplifying ability are incapable of distinguishing between right and wrong, good and bad and the real and fake. Therefore, media trials cannot be a guiding factor in deciding cases. It is therefore extremely vital to function independently and withstand all external aids and pressures. While there is a lot of discussion about the pressure from the executive, it is also imperative to start a discourse as to how social media trends can affect the institutions.

The above, however, should not be understood as meaning that Judges and the judiciary need to completely disassociate from what is going on. Judges cannot stay in “ivory towers” and decide questions which pertain to social issues.

The oath we took, to perform our duties “without fear or favour, affection or ill-will”, applies equally to governmental and non-governmental entities. The ultimate responsibility of a Judge is, after all, to uphold the Constitution and the laws. Reason, reasonableness and protection of human dignity are the values that will serve us well.

I would now like to speak on the role of lawyers in upholding the “Rule of Law”. It demands expertise, experience and commitment. Lawyers have an obligation to perform their duties with integrity and diligence, with full respect for the court, opposing counsel, clients, victims, witnesses and persons involved in the proceedings. We need social-virtue rather than economically self-interested behaviour.

Historically, lawyers have a rich tradition of social activism demonstrated by the number of lawyers who participated in the Indian freedom struggle. In part, this civic virtue stems from their having had a public-minded clientele. We need now to rebuild and recreate a tradition of civic professionalism. We need a professional ideology about social responsibility. Here, I would urge both young and senior counsel to extend a helping hand to those in need of justice. Extending ease of access to justice is no less a social justice. Let economy, gender, class or caste never be a hinderance in the path to secure justice.

Undoubtedly, reverence for the “Rule of Law” is our best hope for survival as a free society. In order to advance the “Rule of Law” we primarily need to create a society where “Rule of Law” is respected and cherished. Only when the citizens believe that they have fair and equal access to justice, can we have sustainable, just, inclusive and peaceful societies. Citizens can strengthen the “Rule of Law” by being knowledgeable about it and by applying it to their daily conduct and pushing for justice when needed.

I am taking the liberty to quote in Telugu, Maha Kavi Gurajada Appa Rao, a great poet and reformist of 19th/20th century. He said, and I quote:“Desamamte Matti Kadoi, Desamamte Manushuloi”. Gurajada gave a universal definition to the concept of nation. He said “a nation is not merely a territory. A nation is essentially its people. Only when its people progress, the Nation progresses.”

You are the stewards of this nation and custodians of a very rich tradition. I hope that you contribute by way of giving back something to this society, to this great nation which has bestowed you with so many privileges. I must lastly state that the work of ensuring complete justice as aspired to, under the Constitution can never be said to be completed. The mandate of our Constitution is to work tirelessly to surpass our own expectations, to make India a country wherein rights are cherished, and which sets an example for other countries to follow. There is no better way to end this speech on “Rule of Law” than reciting a poem by Kaviguru Ravindranath Tagore,

Where the mind is without fear and the head is held high

Where knowledge is free

Where the world has not been broken up into fragments

By narrow domestic walls

Where words come out from the depth of truth

Where tireless striving stretches its arms towards perfection

Where the clear stream of reason has not lost its way

Into the dreary desert sand of dead habit

Where the mind is led forward by thee

Into ever-widening thought and action

Into that heaven of freedom, my Father, let my country awake.