Rule of Law: A Myth in Indian Legal System
The term ‘Rule of Law’ is an ancient term which has again found significance in the present time. Rule of Law is derived from natural law and natural law is also the source of fundamental right. According to St. Thomas Acquinas, natural law is “an ordinance of reason for the common good made by him who has care of the community.” He continues by saying that the natural law is the unaided reason which is common to all people including Christian and non-Christians. Rule of law is associated with the word ‘law’ which means that man or a society must not govern by a man or ruler but rather than they must be govern by Law. According to Oxford Advance Learner’s Dictionary, rule of law means the situation in which all the citizens as well as the state are ruled by the law. According to Black’s Law Dictionary “rule of law” means legal principles of day to day application, approved by the governing bodies or authorities and expressed in the form of logical proposition. The rule of Law implies supremacy or dominance of law over any rule or person in that state. It also checks arbitrary and biased law implemented by the government. It also implies that the rules and laws which are implemented in a state must be in conformation with the constitution, generally rule of law is implemented by making supremacy of constitution.
According to Prof. Dicey, rule of law has three means or we can say three principles which are must be followed so that there will be supremacy of rule of law. The three principles are Supremacy of law, Equality before Law and Predominance of Legal Spirit.
- Supremacy of Law:The First meaning of the Rule of Law is that ‘no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. This means that no man can be punished other than for the breach of law which has implemented in that state with proper procedure followed and legal backing.
- Equality before Law: -Dicey’s rule of law means that everybody should be equal before the law and every section of the society must be treated equally without any discrimination. He also criticised the French legal system because there were separate tribunals for deciding cases of citizens and government officials separately. According to him it’s not the rule of law.
- Predominance of Legal Spirit: -it means that the general principles of constitution are the result of the judicial decisions taken in the court of law while deciding the rights of the parties approached the court.
Rule of Law and the Indian Constitution:
The doctrine of Rule of Law has been adopted in Constitution of India. The principles of Rule of Law i.e. justice, equality and liberty are enriched in the Constitution of India. The Constitution of India is above all the laws implemented in Indian Territory and any law made by the central government or by the state government must be in confirmation with the Constitution of India. If any law made by the legislation under the jurisdiction of India which is against the mandates of the constitution, the law would be void.
Part III of the Constitution of India guarantees fundamental rights. Article 13(1) of the constitution says that all the laws which are implemented by the government (centre as well as state govt.) in Indian territory immediately before the commencement of this constitution will be void if found to be inconsistent with the provisions of constitution and if the law is not wholly inconsistent with the constitution then to the extent of such inconsistency will be void. This is also the first principle of rule of law i.e. supremacy of constitution. Article 14 guarantees Equality before law. It declares that the state shall not treat any citizen unequally and provide equal protection of law to the entire citizen within the territory of India. Article 21 of the Constitution guarantees Protection of Life and Liberty, which is also covers the third principle of rule of law i.e. protection of liberty.
In various judgements also the courts has accepted the rule of law as basic ingredient of the Constitution. In Kesavanda Bharti vs. State of Kerala (AIR 1973 SC 1461), the Supreme Court pronounced the rule of law as the important aspect of the doctrine of basic structure. In Menaka Gandhi vs. Union of India (AIR 1978 SC 597), The Apex court held that Article 14 is a tool against arbitrariness. In Indira Gandhi Nehru vs. Raj Narahr (1975 SC 2299), Article 329-A was added to the Constitution under 39th amendment which provides certain immunities to the election of office of Prime Minister from judicial review. The Supreme Court held that the amendment was invalid as it is against the basic structure of Constitution of India. In A.D.M Jabalpur vs. Shivakant Shukla (AIR 1976 SC 1207)(Habeas Corpus case), the Supreme Court held that Article 21 can’t suspend because it is our rule of law and if there will no Article 21 then there will be no rule of law.
The Indian judiciary is respected in the home country as well as all around the globe for its modern approach of interpreting various provisions of the Constitution with a view to promoting social justice. While interpreting the provisions related to human rights enriched in the constitution the courts had expanded the scope of the provisions so that it covers all the problems in daily life like the Apex court had held in one of the judgement that right to have a good sleep in the night is part of the right to life which is a fundamental rights under Article 21 of the Indian Constitution. Their interpretation also helps in overcoming restrictions based on different laws of the state and centre which hamper fundamental rights, creating new forums and creating efficient ways to approach court of law like public interest litigation etc. and successfully intervened in the problems of society like child labour, crimes against women, clean and healthy environment are some of the successful judicial intervention and initiatives by the Indian Judiciary to ensure rule of law and its end goal i.e. Justice for all.
But to see only this side of the story and to avoid the scale of inequalities and injustice, would be completely missing the point. The Indian legal system is faced with numerous crises starting with the fundamental challenge of enforcing the rule of law. The system of governance in India is based on rule of law but the people who are responsible to make laws, they have no respect for the law and this makes the common people losing faith and respect towards these institutions which is not good at all.
Rule of law as a concept means a principle of law which is made supreme in nature will follow with fair procedure and will meet its end goal and that goal is “justice”.
Efforts of protecting the rule of law depends upon various factors which will further strengthen the capacity of legal system to cure injustice. Making new laws and new amendments will not solve the problem because the problem is not with the laws nor the laws or amendments are incompetent but with the enforcement of law. The fundamental examining of approaches that we had adopted to enforce rule of law is needed. There is need of new approaches to enforce rule of law and critically examine the effectiveness of Indian Governance with the given fact that corruption is present at all levels.
Mr. Lalu Prasad Yadav, then chief minister of Bihar and Currently President of Rashtriya Janata Dal (RJD) perfectly illustrates our cultural problem and political inability and our press to address the central issue. After the exposure of Fodder Scam, the CBI took months of investigation and filed 2000 pages of reports and announced that they would seek Governors permission to seek to prosecute Mr. Lalu Prasad Yadav under fodder scam. The scam took place in the state of Bihar which at that time was among the poorest states of India and the scam was worth of Rs. 900 crores which was a huge amount. This amount of money could be used for the development of the people of the state. This type of scam is not possible by the act of one person and that is why several ministers and civil servants of related ministry were also called for investigation. Mr. Lalu was asked for resignation from his post by members of other parties and other people from political fraternity and assist investigation to ensure a fair and independent investigation. On this Mr. Lalu’s reply was astonishing. He said he will not resign, politics is a battle for power and every perons seeks power “so why would I relinquish it?” He continued by saying that if he sent to the jail, he will create crisis for the central government and there would be blood bath all over the state. Although Mr. Lalu is a law graduate then also reasoning lacks not only legal backing but also common sense. Mr. Ashok Singhal, president of Vishwa Hindu Prishad, after the Hindu Militants demolished Babari Mosque in December 6th, 1992 justified and said that the will of the people is above law. Mr Singhal and Mr. Yadav must be thanked to remove the curtain from our politics. It demonstrates that our politician have nothing to do with the reason or morality. It is a naked pursuit of power.
India is suffering through new set of Scams which are huge in monetary terms and complex in nature like 2G spectrums Scam, Coalgate Scam, Adarsh Housing Scam, Vadra Land Acquisition Scam, Nitin Ghadkhari’s Politico-business Scam, Common wealth Scam, Bofors Scam, Telgi Scam, Satyam Scam, and currently Vayapam Scam. After analysing these scams we understand one thing very clearly that the fig fishes are easily escaping which are involved in these illegal activities. Now this put question to the efficiency of “rule of law” under the circumstances in which judiciary itself is on verge to loose public confidence. This all has been observed by the common people of India feel cheated as the hard money earn by these common people and paid to the government as taxes for the purpose of development of the nation is going to the pockets of these politicians and top bureaucrats. All these scams can be resulted into violent protest which is not at all good to the peace and security of the country. There is great need of efficient actions to prevent these kinds of scams.
A report of the National Commission to Review the Working of the Constitution in India noted that it’s a paradox that although India’s is having vigilant press and public opinion then also the level of corruption is exceptionally high. It is because of inner shamelessness, utter insensitivity and lack of public morality among the bribe takers which motivates them to do these acts with pride. The laws which are constantly violated due to various above reasons have mocked the whole law enforcing mechanism. And addition to these, various anti-corruption laws are passed by the government but not to decrease these scams but to settle their score with the opposition. Corruption is widespread in India. India is ranked 85 out of 179 countries in Transparency International’s Corruption Perceptions Index, although its score has improved consistently from 2.7 in 2002 to 3.4 in 2008.
The development of “rule of law” in a given country, its nature and the extent of its realization depends upon the wealth of its citizen, the political system, strength of its civil society, complexity and comprehensiveness of its reforms. This all makes it necessary to initiate reforms and reforms should be made at all levels of state organs. Rule of law also depends upon the lack of state capacity to make reforms and coordinate these reforms at all levels of state organs; opposition by interest groups like judges, prosecutors, minister of justice department which will lose power and control due to the particular reform and the last historical and cultural factors like Mr. Lalu’s example stated above.