In laymen terms, law should rule, people should obey the law. The earliest form of this type of governance could be traced back to 1750 BC. The Hammurabi code, popularly known as an ‘eye for an eye’, off course it was the most primitive form of law which was used to obtain justice. In a democratic nation especially India, our constitution is the supreme law. Although the term rule of law is not used in our constitution anywhere, it is accepted that India is a country which is governed by rule of law.
However it finds its place in the constitution as an underlying principle1 and hence this feature cannot be removed even with amendments. In this essay my main objective would be to give an account on the rule of law in India, on paper and in reality. Furthermore answer the question: Is rule of law prevalent in India? Before moving forward it is important to define rule of law. Constitution defined rule of law as embodying three main principles: supremacy of law, equality before law and Rule of law is the main principle of a constitution.
The concept of rule of law was prevalent even before Dicey; it was firstly propounded by Sir Edward Coke (chief justice of England). Dicey later developed it. In the Middle Ages, around 7th century, jurisprudence established that the law is above all, even the caliph. The mangna Charta which was written in 1215 is another evidence of existence of rule of law way before the 19th century. Rule of law is a contested topic and it is open to various interpretations and there cannot be a precise definition.
However in my personal opinion the core features of this concept should include (with reference to India): rights, justice and governance. The three principles could be related to the constitution, through equality before law, independent judiciary, keeping government powers under check and protection of human rights. Equality before law Part 3 article 12-35 of the Indian constitution deals with the fundamental rights. Article 14 deals with equality before law and equal protection of law. Thus it is safe to say egalitarian society is what the constitution framers where going for.
Which is to say like should be treated alike and unlike should be treated differently (reasonable classification or discrimination). Popular example is the reservation system prevalent in India, it does not place the whole country on equal grounds, but that discrimination is necessary. This reasonable discrimination has been identified by the Supreme Court in the 2. CJ Bagwati stated: "Equality is a dynamic concept with many aspects and it cannot be 'cribbed, cabined and confined' within the traditional and doctrinaire limits, from a positivist point of view, equality is antithetic to arbitrariness .
’’ In a different judgment, The Supreme Court 3 stated: ‘Article 14 strikes at arbitrariness in state action and ensures fairness and equality of treatment. The principle of reasonableness, which logically as well as philosophically is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence’. These two judgments alone satisfactorily prove the significance of power of law in our country. The strong precedence of the courts allows equality to prevail. In a democracy, equality is a very strong measure of rule of law.
Given the sociological scenario of India, strong political ideas such as this (reasonable discrimination) are necessary. The fact that the judiciary can come up with such strong laws to protect interests of various social groups is a sign of presence of rule of law. In short the state itself is bound by the law. Judicial review by an independent judiciary The power of the judiciary to review decisions of the other two organs is an important part of rule of law. Constitution does everything in its power to put this mechanism in place.
The constitution is also framed in such a way that, other two organs cannot interfere with the matters of the judiciary. This allows the judiciary to be incorruptible, which in my opinion is important for judiciary to uphold the laws. The remedy to approach the Supreme Court in case of infringement of fundamental right under article 32, itself is a fundamental right. The judiciary over the years has strengthened this powers by 1) by declaring judicial review as a basic feature of the constitution and making it non-amendable by the parliament.
2) Introducing the concept of Public interest litigation which enables the masses to reach justice. 3) It also has the power to look into the constitutional amendments. The above mentioned aspects of the judiciary are effective in upholding the law. Independent judiciary armed with such powers is important for sustaining rule of law. In reality, there are certain aspects of our judiciary which interferes with sustainability of rule of law. The judiciary is a separate body and their accountability is limited, the judges might start to act above the law and there are not many effective checks on the judiciary.
The idea of establishing National Judicial Council to check the activities of the judiciary has been discussed for a long time but no progress has been made yet. 4 Apart from the above loopholes, the biggest problem of the Indian courts I feel is the delay in the judgments. Many cases go on for decades, the popular example being the royal family case in Bengal which has been going for 175 years now. 5 The delay of judgments causes delay in justice, Statistics shows that at the end of 2012 there were 59,816 cases pending before the Supreme Court. 6 All these backlogs raise a serious question on prevalence of rule of law in India.
Keeping government powers under check This is an important aspect for rule of law in a Democracy, it is important for state to be under the law rather than law under the state. That is why the Indian constitution establishes a limited government. As mentioned earlier, the two organs (legislative & executive) are allowed to make laws, but the constitution clearly defines on what matters the two organs are allowed to make laws. Any laws which are not met with the criteria can be regarded unconstitutional by the Courts. Although India has adopted parliamentary form of government, the powers are not fully conferred on anyone.
All the laws made in the parliament need to be approved by the president. .7 If at all any action made by the executive is made without a valid law, the courts can make it void, which might usually arise out of infringement of fundamental rights. All these checks powered with fundamental rights put the parliament in check, so as to not infringe the law. Certain amendments and judicial interpretations have been evolved for this purpose. Plus constitution in itself places a check on the powers of the government. Firstly, any laws made by the legislature which interferes with the rights of its citizens can be said 8 unconstitutional by the
courts. Second, there is separation of powers in our system of governance but it is not in a strict sense. This I would like to support by pointing out that all the bills passed must be approved by the president before it becomes a bill, the system is more clear by saying that the parliament can investigate into the president if he/she is suspected of violating the constitution. Third, the power of the press which has risen with the interpretation of article 19 serves a purpose in checking the powers of the government9. Any misuse is captured by the ever-vigilant press.
Since we have regular elections the people can always go back and vote for other political parties. Human rights protection The fourth and final aspect which is essential for a state to possess to be said that it is being ruled by law is Human rights protection. Article 21 of the Indian constitution is taken as a purpose to show the prevalence of human rights protection in India. 10: Article 21 states Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law Over the years the judiciary interpreted this particular article in different ways.
The definition of the term ‘’life’’ in this article has been widened. In the case Francis coralline vs Union territory of Delhi, Justice Bagwati widened the scope of article 21 by interpreting life as life to live with dignity and all the other elements that follow with it. CJ Bagwati stated: The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.
The magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self. Ever since the scope of article 21 is widening with right to education till the age of 14 years and right to livelihood etc. Furthermore court has said that any law that prejudices/contempt’s the scope of article
14 and article 21 shall be declared unconstitutional. It is safe to say that the courts have established a reasonably strong understanding of article 21. Rule of law basically says that the law should rule the state rather than state ruling the law. A constitution and a judiciary which can come up with strong laws to protect the interests of the people is a strong evidence of prevalence of rule of law. Furthermore, my opinions is that, a state’s position on standard of living, access to safe and clean drinking water, hazard free environment should also be part of Human rights protection.
Though legislative recognizes this and has laws, the judiciary has not clearly interpreted this. Conclusion A thorough research from my part on constitutional provisions and judiciary has led me to a conclusion that Indian constitution is motivated by Rule of law. On paper our laws look satisfactory. In reality, several challenges pose a serious threat to rule of law in our country. Challenges such as poverty, violence against women, widening socio-economic inequalities, naxalism create a difference in rule of law in paper and reality.
Even on the global level India is way beyond for a developing country. India is ranked at 50th place for strong protection of freedom of free speech, civil courts at 79th position and administrative agencies at 78th position. (All the rankings are marked out of 97 countries). 11 We have enough rules and laws; the judiciary has been improving the laws and adding new ones. Our laws are only strong when they are implemented effectively. In the future years the government should focus on strengthening institutions, rather than just creating more and more laws.
Improving education, more importantly legal education and creating ways for higher participation of the public. More focus should be given on creating a culture for this purpose. This I feel, deepens the commitment towards rule of law in India. Bibliography EP royappa vs state of Tamil Nadu, 38 (SC 4 3, 1974). Maneka gandhi vs Union of India, 248 (SC 1 1978). Sri Indira devi vs state of Assam, 1383 (SC February 2007). Law making procedure in India. (2009). Retrieved November 20th, 2013, from Wikipedia: http://en. wikipedia.org/wiki/Lawmaking_procedure_in_India Sri Indira das vs State of Assam. (2011, February ).
Retrieved November 20th, 2013, from Supreme court of India: http://supremecourtofindia. nic. in/scr/2011_v4_pii. pdf Court news. (2012). Retrieved November 20th, 2013, from Supreme court of INdia: http://supremecourtofindia. nic. in/ Islamic ethics. (2013, November 20th). Retrieved from Wikipedia: http://en. wikipedia. org/wiki/Islamic_ethics Central government act. (n. d. ). Retrieved November 20th, 2013, from Indiankanoon: http://indiankanoon.
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