The rule of law is sometimes expressed as ‘no person is above the law’. A more comprehensive description of the concept has been elusive for generations of scholars, lawyers and judges. What does the phrase mean? More specifically, what does the rule of law mean in the context of 21st century issues and challenges?
Professor Robert A Stein and Justice Richard J Goldstone are the distinguished editors and authors of The Rule of Law in the 21st Century. Joining Stein and Goldstone is an array of internationally distinguished leaders of the legal profession (including US Supreme Court Justice Ruth Bader Ginsburg and Paul Volcker, former Chairman of the Federal Reserve) from North America, Europe, Africa and Asia to explore the meaning of the rule of law today in a variety of circumstances.
The book opens with chapters covering the basic concepts of the rule of law, independence of the judiciary and whether there is such a concept as an international rule of law. The book examines the concept of the rule of law from a variety of perspectives. Does the rule of law promote or impede economic development? How can we meet the major threat to the rule of law in the form of corruption? What is the relationship between the Great Charter, Magna Carta and the rule of law today? How can the rule of law be of assistance when addressing the challenge of inequality of women in society? It also includes chapters describing law reform programmes that have strengthened the rule of law around the world in recent decades.
The rule of law is humankind’s best hope for freedom and justice. The Rule of Law in the 21st Century gives a better understanding of this important concept in the world today.
Rule of Law in UK
The Rule of law, in UK, was developed over the centuries as a brake on arbitrary power. The modern concept of rule of law owes much to the great battles between the English kings and their subjects, the struggle for supremacy between parliament and Stuart kings, and finally the war between the British Empire and its American Colonies.
The rule of law is an ambiguous expression and may mean different thing for written, The rule of law is a concept which underpins the constitution of UK and itself supported by the separation of powers. Although the Concept dates from Aristotle –“the rule of law is preferable to that of any individual.”
For Dicey the Expression rule of Law includes three distinct conceptions-
See- 2.2 & 2.3 of Chapter-2.
3.2 The Rule of Law in USA
The America of 1787 inherited from medieval England the concept of rule of law, sometimes expressed as “a government of laws, not of men.” One may trace the rise of this principle in English history all the way back to the signing of Magna Charta in the year 1215, when King John found it necessary to guarantee his obedience to English laws. For that matter, medieval English writers on law derived their understanding of the rule of law from ancient Roman jurisprudence.
This doctrine that no man is above the law applied not only to kings but also to legislative bodies and judges. Sir Edward Coke, we saw earlier, fiercely resisted not only attempts by King James I to interpret the law for himself but also Acts of Parliament that contravened the common law. Citing Bracton as an authority, he asserted that “the king must not be under any man, but under God and the law.” In Dr. Bonham’s Case (1610), Coke laid down the principle of judicial review, claiming that judges had a right, when interpreting Acts of Parliament, to declare them null and void if they conflicted with established principles of law and justice. “And it appears in our books,” said Coke, “that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void.”
That the English had turned their backs on their own tradition and respect for rule of law was the principal grievance of American colonial leaders. In his famous pamphlet The Rights of the British Colonies Asserted and Proved (1764), James Otis wrote:
To say the Parliament is absolute and arbitrary, is a contradiction. The Parliament cannot make 2 and 2 [equal] 5. … Parliaments are in all cases to declare what is good for the whole; but it is not the declaration of parliament that makes it so. There must be in every instance a higher authority—God. Should an act of parliament be against any of His natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void.
Similar arguments were made by the State supreme court judges after 1776. Their attempts to nullify legislative enactments through the power of judicial review were largely unsuccessful, however, because most early State constitutions, like the English Constitution, followed the doctrine of legislative supremacy. Acts passed by the State legislatures were expected to conform to the State constitutions. But there were no provisions calling for the supremacy of the State’s constitution over laws passed by the legislature should the judges decide that a law conflicted with the State’s constitution. Thus, the absence of a supremacy clause in these State constitutions rendered the power of judicial review weak and ineffective.
The Federal Constitution of 1787 drastically changed the concept of constitutional government by introducing the principle of constitutional supremacy. Article VI declared that “This Constitution … Shall be the supreme law of the land.” Laws passed by Congress, though supreme in relation to State constitutions and State laws, were ranked below the Constitution. Indeed, Article VI explicitly stated that such laws must conform to, and be made in pursuance of, the Constitution. Noting the significance of the Supremacy Clause, Chief Justice John Marshall held in the famous case of Marbury v. Madison (1803) that an Act of Congress contrary to the Constitution was not law:
It may thus be seen that the American Constitution and the power of judicial review are an extension of rule of law. The Constitution is law, the highest law, and the President, Congress, and the Federal Judiciary are bound by its terms. A government of laws and not of men is, then, the underlying principle of the American political and legal system.
This means that no person, however powerful or talented, can be allowed to act as if he were superior to the law of the land. Public decisions must be made upon the basis of law, and the laws must be general rules that everybody obeys, including those who make and enforce the law. A law that violates the Constitution is not a law and is not, therefore, enforced. This was the principle that Marshall followed in Marbury v. Madison. Likewise, rule of law means equality before the law. A law that singles out certain people for discriminatory treatment, or is so vague and uncertain that one cannot know what it requires, will not be treated as a law.
Rule of law, then, is not rule of the law, but a doctrine concerning what the law ought to be—a set of standards, in other words, to which the laws should conform. Merely because a tyrant refers to his commands and arbitrary rulings as “laws” does not make them so. The test is not what the rule is called, but whether the rule is general, known, and certain; and also whether it is prospective (applying to future conduct) and is applied equally. These are the essential attributes of good laws—laws that restrain but do not coerce, and give each individual sufficient room to be a thinking and valuing person, and to carry out his own plans and designs. This does not mean that the individual is free to do as he pleases; for liberty is not license. As the Framers knew well, absolute freedom would be the end of freedom, making it impossible for society to be orderly, safe from crime, secure from foreign attack, and effectively responsive to the physical, material, and spiritual needs of its members. Under God, said the exponents of the rule of law, the law governs us; it is not by mere men that we ought to be governed; we can appeal from the whims and vagaries of human rulers to the unchanging law.
Though this is a grand principle of justice, often it is difficult to apply in practice. Passion, prejudice, and special interest sometimes determine the decisions of courts of law; judges, after all, are fallible human beings. As the Virginia orator John Randolph of Roanoke remarked sardonically during the 1820s, to say “laws, not men,” is rather like saying “marriage, not women”: the two cannot well be separated.
Yet the Framers at Philadelphia aspired to create a Federal government in which rule of law would prevail and men in power would be so restrained that they might not ignore or flout the law of the land. The Supreme Court of the United States was intended to be a watchdog of the Constitution which might guard the purity of the law and forcefully point out evasions or violations of the law by the other branches of government or by men in public office.
The Framers knew, too, the need for ensuring that the President of the United States, whose office they had established near the end of the Convention, would be under the law—not a law unto himself. The President’s chief responsibility, in fact, is to enforce and uphold the law, and to “take care that the laws be faithfully executed.” Whereas the members of Congress and the Federal Judiciary, and other Federal and State officials, all take an oath “to support this Constitution” (Article VI, Clause 3), the President—and the President alone—swears on the Bible (or affirms) that he will “preserve, protect and defend the Constitution” (Article II, Section 1, Clause 8).
Thus in the final analysis the nation looks to the President as the person ultimately responsible for upholding the rule of law and the supremacy of the Constitution. By making him Commander-in-Chief of the armed forces and by giving him the power to supervise the heads of the various departments of the executive branch, the Constitution also confers upon the President the means by which he may fulfill his law enforcement responsibilities.
By and large, America has enjoyed rule of law, not of men. No President of the United States has ever tried to make himself dictator or to extend his term of office unlawfully. Martial law—that is, a suspension of the law and the administration of justice by military authorities in times of war, rebellion, and disorder—has never been declared nationwide. No party or faction has ever seized control of the Federal government by force or violence. The Constitution of the United States has never been suspended or successfully defied on a large scale. Thus the rule of law has usually governed the country since 1787—a record true of very few other countries of the world
3.3 Rule of Law in India & Indian Constitution
India has been hailed as the world’s largest and most vibrant democracy. The world is full of praise for the rule of law and democratic freedoms which, in South Asia, are enjoyed only by those living in India. More than Sixty Years of Democracy have, however, failed to improve the lives of the masses in India.
India has a written constitution; a body of laws, subordinate to the constitution, dealing with various subjects; rules and regulations, executive instructions & Conventions. All these may be broadly termed as ‘law’ and their operation to subject population is the ‘Rule of Law’
On paper, India also has a fairly elaborate and developed system of justice administration. The best and the most liberal strands of Anglo-Saxon jurisprudence have been interwoven into the foundations of our legal system.
Human Rights Abuse
At first sight, it seems that the rule of law and the respect for human rights and human dignity prevail but there exists significant human rights abuses, despite the extensive constitutional and statutory safeguards. Many of these abuses are generated by intense social tensions, violent secessionist movements and the authorities’ attempts to repress them, and deficient police methods and training. Serious human rights abuses include extra-judicial executions and other political killings, torture, and excessive use of force by security forces and separatists militants, as well as kidnapping and extortion by militants, especially in Kashmir and north east India; torture, rape, and deaths of suspects in police custody through out India; arbitrary arrest and incommunicado detention in Kashmir and in the north-east; Continued detention through out the country of thousands arrested under special security legislation; long delays in criminal trials; widespread inter-caste and inter-communal violence, both societal and by the police and other agents of government, against women; discrimination and violence against indigenous people; and widespread exploitation of indentured, bonded, and child Labour.
In India, there are various groups of people who are socially or economically disadvantaged such as Dalits, the tribals, the abjectly poor, the abysmally helpless and ignorant, the landless, the women, and all those who are or are forced to become marginal to the mainstream. They compromise an overwhelming majority.
India’s caste system continues to cast its shadow over the country’s secular and democratic constitution. Although Art 17 of the Constitution of India abolishes the practice of untouchablity, and Art 14 & 15 calls for equality and the prohibition of any form of discrimination respectively, widespread social and economic inequalities and discriminations plague Indian society and are in fact are constantly on the rise. Social Discrimination is rife in India and it increasingly takes the form of police and state abuse towards scheduled castes, as well as other ethnic minorities. Discriminatory attributes are rife amongst law enforcement officials; the Indian police force is known for its communalism and political affiliations. Large scale violations of human rights perpetrated on Dalits involve burning of homes and fields, murder, torture and beating of women, molestation, rape, and custodial death.
Women are particularly vulnerable to the discrimination in India. Custodial rape is not unusual and the conviction rate for this type of crimes remains close to zoo. Rape committed by the armed forces is also common in areas of insurgency, such as north-east India, where this offence is usually perpetuated during combating operations carried out in search of terrorists.
Custodial torture is another example of the widespread violation of civil rights of citizens. It happens in spite of Art 22 of the Constitution of India, which provides for the protection against arbitrary arrest and detention. The Hon’ble Supreme Court of India has time and again held that the dignity of individuals should be maintained at all times, including when they are in a state custody, and that an individual never loses his fundamental rights which continue to inhere in him even when he is in judicial custody. The Hon’ble Supreme Court held that the right to life (Art 21) includes the right not to be tortured or humiliated. The apex Court had laid down guidelines to be followed in cases of detention and judicial custody; this includes an obligation on the part of the state to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. In spite of this, one gets to hear almost everyday about cases of custodial deaths. This is so because the state confers arbitrary power to the police under the pretext of maintaining law and order, and in so doing, legitimizes human rights violations. The Indian police today are also agents of social prejudice and bias.
Indian Judiciary & Rule of Law
The Hon’ble Supreme Court and the various High Courts through Judicial activism and public interest litigation, other bodies such as the National Human Rights Commission and State Human rights Commissions and various non-governmental organizations have made significant contributions towards protecting freedoms and preventing human rights violations and abuses, thereby ensuring that the Rule of Law and respect for citizens’ rights do not remain only on paper but are incorporated in practice too.
With the Constitution 1st Amendment Act, 1951, the status of Rule of law in India was shocked. The question which came up for consideration in Shankari Prasad v. Union of India was whether the fundamental rights can be amended under Art 368. The first Amendment Act, 1951 inserted Art 31 A and Art 31 B in the Constitution of India and it was challenges on the ground that it violated or abridges the right conferred under Part III of the Constitution. The Hon’ble Supreme Court held that Parliament has the power to amend Part III of the Constitution under Art 368 as under Art 13 law means any legislative action and not a constitutional amendment. Therefore, a constitutional amendment would be valid if abridges any of the fundamental rights. Again, the question came up for consideration in Sajjan Singh v. State of Rajasthan in which the Hon’ble Supreme Court approved the majority judgment in Shankari Prasad case and held that amendment of the Constitution means amendment of all provisions of the Constitution. Hon’ble Chief Justice Gajendragadkar held that if the framers of the constitution intended to exclude fundamental rights from the scope of the amending power they would have made a clear provision in that behalf. Both these cases were overruled by the Hon’ble Supreme Court in Golk Nath v. State of Punjab and held that Parliament have no power to amend the Part III of the Constitution so as to take away or abridges the fundamental rights and thus, at the end the Rule of law was sub served by the Judiciary from abridging away. But this was not the end. The Rule of law was trumpled down with the Constitution 24th Amendment Act, 1971. Parliament by the way of 24th Amendment inserted a new clause (4) in Art 13 which provides that ‘nothing in this Article shall apply to any amendment of this constitution made under Art 368’. It substituted the heading of Art 368 from ‘procedure for amendment of Constitution’ to ‘Power of Parliament to amend Constitution and Procedure thereof’. The 24th Amendment not only restored the amending power of the parliament but also extended its scope by adding the words “to amend by way of the addition or variation or repeal any provision of this constitution in accordance with the procedure laid down in the Article”.
The Constitution 24th Amendment Act, 1971 was challenged in the popular & most controversial case of His Holiness Keshavanand Bharti v. State of Kerala . The Hon’ble Supreme Court by majority overruled the decision given in Glok Nath’s case and held that parliament has wide powers of amending the constitution and it extends to all the Articles, but the amending power is not unlimited and does not include the power to destroy or abrogate the basic feature or framework of the constitution. There are implied limitations on the power of amendment under Art 368. Within these limits Parliament can amend every Article of the Constitution . Thus, Rule of law prevailed. Justice H R Khanna played a vital role in preserving the Rule of law although he concurred with the majority decision.
Habeas Corpus case: A Black Mark on Rule of Law
The widespread detentions of political leaders and prominent citizens led to a spate of Habeas Corpus Petition seeking the invalidation of detention orders, in courts all over India. Nine High Courts took the correct view that, notwithstanding the suspension of fundamental rights under Art 14, 19, 21 & 22, the petitions were maintainable. The High Courts judicially reviewed detentions orders inter alia on the grounds of ultra vires, breach of statutory provisions, mala fide or other illegalities.
The Supreme Court in A D M Jabalpur v. Shivkant Shukla by majority 4:1 over turned the verdicts of these High Courts and held that neither detainees nor anyone on their behalf had right to move the courts for habeas corpus in view of the suspension of fundamental rights. This decision even excluded challenges to detention orders on the Act or was mala fide i.e. not passed by an authorized person or issued against a wrong person. The majority consisted of Chief Justice A N Ray, Justice M H Beg, Y V Chandrachud and P N Bhagwati – the lone dissenter was Justice H R Khanna.