Democracy is the rule of law, not rule by law
India is, indeed, a civilisation that cannot necessarily be restricted to the events that occured post August 1947, when it became a democracy. And, the values of this civilisation, many of which are enshrined in the Constitution, are what this young democracy has the responsibility of upholding. The onus is on the people of this democracy, because this ancient civilisation — which has a long list of monarchs, kingdoms, patriots, traitors, sages, thieves, the wise, the hoi polloi, good, evil, black and white, and grey — collectively decided to embrace this form of functioning to “progress towards an advanced stage of social development,”
Rule of law is the supreme manifestation of human civilization and culture. It is an eternal value of constitutionalism and inherent attribute of democracy and good governance.
Rule of law denotes a way of life and commitment to certain principles and values. Aptly describing the notion of Rule of law the former Attorney General of India Soli Sorbajee says. “ It is the priceless inheritance of our civilization” According to him “Rule of law symbolizes an enlightened civilized society’s efforts and quest to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes license.” Great constitutional thinkers including Sir Ivor Jennings, Kord Radcliffe, Lord Denning, Lord Scarman, they all belongs to the school which consider Rule of law as a ‘way of life’ and ‘index of civilizational growth’. If we relate this concept of ‘Way of Life’ and ‘Index of Civilization’ with democracy in simplest words is ‘of the people, for the people and by the people; it is ‘rule of law which makes democracy of the people for the people and by the people in the sense’.
Rule of law as a concept is substantive yet dynamic, as modern philosophy yet ages old. One of the key assumption of Rule of law is that let no man, howeverhigh or any government be trusted with power but tie him or it down by the chains of law is of old origin: It is an ancient ideal and was incorporated in ancient India in Upanishad saying “Law is the king of kings, for more rigid and powerful than they; there are nothing higher than law; by its prowess, as by that of highest monarch, the weak shall prevail over the strong.” This Ideal of Rule of law was discussed by ancient Greek Philosopher such as Plato and Aristotle around 350 BC. Similarly in the Ashok’s era ‘Dharma-Chakra’ was also some how related with the concept of rule of law. Even in the medieval era of Akbar’s notion of Deen-E-Elahi was also to protect certain norms which are even binding on the emperor. All these historical notion can be reflected is the words of Aristotle-“Law should govern and those in power should be servants of law.”
The formal inception of the concept of rule of law goes back to November 3, 1608 at West Minister Hall. At that wintry morning, the hot discussion was going on between Sir Edward coke and James I. James I was bent on establishing his absolute power chaining the divine right of the king. Parliament and Royal Courts of Justice stood in his way. King James claimed that –“since the judges were but his delegates, he could take any case he choose, remove it from the jurisdiction of the courts and decide it in his royal person.” To this Chief Justice Coke answered, “In the presence and with the clear consent of all the judges that the king of his only on can not adjudicate any case …but that it ought to be determined and adjudicated in same court of justice according to law and customs of England.” To this the King replied “That he thought that the law was founded upon the reasons and that he and others had reasons as well as the judges.” That followed the stirring and courage’s reply of Coke which sends a thrill of pride in every lawyer and even judge even after so many years. He said “It was God who had endowed his majesty with excellence science and great endowments of nature; but his Majesty was not learned in the laws of his realm in England and causes which concerns the life or inheritance or goods or fortunes of his subjects are not to be decided by natural reason but by artificial reason and judgment of law, which law is an act which require long study and experience. That the Bracton said that the king should not be under man but should be under God and law.” These words lead to the great evolution of Rule of law in UK. To an extent these courageous words leads to Glorious Revolution and Act to settlement (1701) which secured Rule of law in and out in England and inspired the world.
Prof. Albert Venn Dicey later developed on this concept in the course of his lectures at Oxford University. Dicey was an individualist, he wrote about the concept of Rule of law in 1885 through his book ‘The Law and the constitution’. This doctrine promugulates the notions of rule of law which has certain limits subject to political –social and economic era of that time. Dicey’s notion of rule of law yet forms the basic ingredients of rule of law. He attributed three meanings to the said doctrine.
The First principle (Supremacy of Law) recognizes a cardinal rule of democracy that every government be subject to law and not law subject to government. It rightly opposed arbitrary and unfettered discretion to the government authorities which has tendency to interfere with rights of citizen. Dicey’s First Principle of the absence of discretionary power in the hands of government officials.
The Second Principle (Equality Before Law) is equally important in a system wedded to democratic polity. It is based on the well known “However high you may be, Law is above you” and all are equal before law” Dicey states that there must be equality before law and equal subjection of all classes to the ordinary law of the land administered by ordinary law courts. He added that in England all person were subject to one and the same law, and there were no extraordinary tribunals or special courts for officers of the Government and other authorities. That is why he criticized French legal system of DroitAdministerifin which there were separate administrative tribunal for deciding cases between the official of the state and the citizens. According to him exemption of civil servants from the jurisdiction of ordinary court of law and providing them with special tribunals was negation of equality
The Third principle (Predominance of Legal Spirit) put emphasis on the role of the judiciary in enforcing individual rights and personal freedoms respective of their inclusion in the constitution. Dicey feared that mere declaration of such rights in any statue would be futile if they could not be enforced. He further added that constitution is not the source but the consequence of the right of the individual thus dicey emphasized that the right would be secure more adequately if they were enforceable in the court of law than mere declaration of those rights in the document, as in later case they can be ignored, curtailed or trampled upon.
Dicey’s thesis ‘Rule of law’ proved to be an effective instrument in conferring the administrative authorities within their limits. It served as a king of touchstone to judge and test administrative actions. Because of its effects Wade observed that “British constitution is founded on the doctrine” Yardley also says that in broad principle the rule of law is accepted by all as a necessary constitutional safeguard. Undoubtly, Dicey’s thesis established three pillars (In form of three principles) on which roof of democracy stands and he propounded that these pillars (principles) are inter-dependent and inter-related. But, his doctrine also had some limitations. Even in his days the doctrine was not totally accepted in England even. Wade rightly says that if he had chosen to examine the scope of administrative law in England, he would have to admit that even in 1885 there existed a long list of institute which permitted the exercise of discretionary powers which could not be called in question by courts. The shortcoming of Dicey’s doctrine was that he not only excluded the arbitrary powers but also insisted that administrative authorities should not be given wide discretionary powers as according to him. ‘Wherever there is discretion, there is room for arbitrariness. Thus Dicey failed to distinguish arbitrary power from discretionary powers. Though arbitrary power is inconsistent with the concept of rule of law, discretionary power is not, if it is properly exercised. The modern welfare state cannot work properly without discretionary powers. As Mathew J. Stated “if it is contrary to the rule of law that discretionary authorities should be given to the government departments or public officers than there is no rule of law.” Prof. R.A. Cosgrave gives a unique insight into various facets of Dicey’s personality. The portrait of Dicey which Prof. Cosgrove paints hatters all images which students and scholars have built of this great philosopher. He discovers in Dicey’s a somber, uncompromising and artless figure, lacking in confidence as scholars and frustrated in his political ambitions. This icono-classic description of Dicey’s personality goes a long way in explaining his attitude towards Droit Administratif of France and Rule of law doctrine. By administrative law Dicey meant only a single aspect of the French Droit Administrist namely administrative jurisdiction to the exclusion of ordinary and criminal process. Dicey admitted, after 1901 that he conceived his idea of the nature and existence of administrative law from de Jocqueville who himself later admitted his ignorance about the actual working of the Driot Adminstrif in his own days Dicey’s was historically correct up to the time of 1873 when arrest (Executive law), Blanko finally settled the jurisdiction of the Counsel d’Etat in all questions involving administrative matter. Among other things, the Balco decision firmly laid down that question of administrative liability would be with in the jurisdiction of administrative courts and that this liability was subject to special rules different from those of driot rules. However, Dicey misconceived the administrative law because he thought that the French system is administrative law, when administration law is more than that. Dicey’s was also not right when he said that there is no administration law in England because even during Dicey’s time the crown and its servants enjoyed special privileges on that the basis of the doctrine that ‘the King can do no wrong’ there was also existence of special courts in England i.e. ecclesiastical and admiralty courts. Because of some decisions like Local Government Board VsArlidgeand Board of Education VsRice where in administrative agency was authorised to decide even the question of law. Dicey himself recognized his mistake and observed that there exists in England a vast body of administrative law could be as effectively enforced by the courts as by ‘ a body of men who combine official experience with legal knowledge’ provided that they are entirely independent of the government.
The modern concept of the Rule of law of law is fairly wide and therefore sets up an ideal for any government to achieve. The concept was developed by the International Commission of Jurist, known as Delhi Declaration 1959, which was later confirmed at Lagos in 1961. According to this formulation, the Rule of law implies that the functions in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. The diginity requires not only the recognition of certain civil and political rights but also social, economical educational cultural and developmental rights. In Short for the proper establishment of Rule of law, Human Rights mechanism should be ensured. Particularly in the content of third world countries like India, Human Rights mechanism is utmost necessary. The Apex Court in VeenaSethiVs State of Bihar excluded the reach of the Rule of law to the poor and downtrodden the ignorant and the illiterate, who constitute the bulk of humanity in India, when it ruled that the Rule of law does not exist merely for those who have means to fight for their rights and very often do so for the perpetuation of the status quo, which protects and presence their dominance and permits to exploit large section of community.
Moderating the Dicey’s meaning in the present day context Prof. Wade includes, under rule of law- effective control of and proper publicity for delegated legislation particularly when it imposes penalties that should as far as practicable be defined; every man should be responsible to, the ordinary laws whether he be a private citizen are public official, the private mans right should be determined by impartial and independent tribunals and fundamental private rights are safeguards by ordinary laws of England.” Prof. A.L. Goodhart further added that a public officers are governed by law, which limits their powers. It means government under law – the supremacy of law is different from government by law- the mere supremacy of law in ordinary society generally which would apply to totalitarian state . Re emphasizing this inter connection between Rule of law, Democracy and constitutionalism Jus. Venkatachaliah quoted following passage from Canadian Supreme Court.
“ The consent of the governed is a value that is basic to our understanding of a tree and democratic society. Yet democracy in any real sense of the word can not exist without Rule of law. It is that the law that creates the framework within which the ‘Sovereign Will’ is to be ascertained and implemented. They must allow for the participation of, and accountability to, the people through public Intuitions created under the consultation. Equally however a system of government can not survive through adherence to the law alone”
‘Rule of law is a dominant legitimate slogan in the world today. It is perhaps the only universally shared good in modern world in which the most evident lesson is how divided we are culturally economically and politically. Perhaps it is easier to set out that what the Rule of law is not. In some countries Rule of law is those who rule are the law! Leaders in some countries want rule by law and not rule of law. The difference is that under rule of law is preeminent and can serve as a check against the abuse of power, under Rule By Law the Law can serve as a mere tool for government that suppress in a legalistic fashion.
John Finnish says that by ‘rule of law’ is meant a system in which (i) its rules are prospective,(ii) possible to comply with, (iii) promulgated, (iv) Clear, (v) Coherent with each other, (vi) sufficiently stable, (vii) the making of decrees and orders in guided by rules that are themselves promulgated, clear stable and relatively general (Viii) those who administer rules are accountable for their over compliance with rules relating to their activities and who perform these consistently and in accordance with law.
Elucidating the importance and essentiality of the tripartite relationship and sharing the vision of founding fathersand mothers of the constituition Indian Supreme Court in 1950’s in a famous case called Duplessis’s case25 said.
“ First that rule of law provides that the law is supreme Court over the acts of both government and private persons. There is, in short one law for all. Second we explained that The Rule of Law requires that creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. A third aspect of the rule of law is that the exercise of public power must find its ultimate source in a legal note. The constitutionalism principle bears considerable similarity to the rule of law although they are not identical. Simply put, the constitutionalism principle requires that all government action should comply with the constitution. The rule of law principle requires that all government action must comply with law, including the constitution.”
Thus it hardly needs extra efforts to appreciate that principle of constitutionalism and Rule of Lawlie at the root of Democracy and there are interconnected, interdependent and they inspire and inform are one and another. In short absent rule of law the nation of Democracy and of Constitutionalism become shere elusion.
Rejecting the minimist approach many eminent scholar like Dicey, Michael Oakeshott and including Hayek, himself advocated that rule of law stands for law rules, fraternity, accountability and non arbitrariness and is certain, regular and predicatable using the word in the sense ‘ Jus’ and ‘Lex’ both. The concept of rule of law does not merely mean ‘formal legality’ which assures ‘regularity’ and consistency’ in the achievement and enforcement of democratic order, but justice based on recognition and full acceptance of the supreme value of human personality and guaranteed by institutions providing a framework for its fullest expression- in fact it is its time dynamic aspect loosely called by means as ‘substantive’ aspect that makes Rule of Law so important and an ideal. Quoting Jus. Krishna Iyer.
“Rule of law, as at once a dyke against anarchy and tyranny and a steering wheel to direct the course of the ship of state towards that socialist shore reaching which redeems our nations tryst with destiny.”
Similarly the first Prime Minister of India Jawahar Lal Nehru advocating the relevance of functional concept and dynamic nature of Rule of Law told International Commission of Jurists.
“ The rule of law must run close to rule of life, which is abolition of poverty, assurance of social justice and national development liberating human potential imprisoned by the feudal structure of the society.”
Thus contrary to the minimist or formalist approach and enlarging Dicey’s concept the Indian approach to the concept of rule of law goes beyond for its deep concern with social, economical and cultural conditions necessary for the fulfillment of legitimate aspirations of the people. The rule of law is not only about ‘formalism’ but is at the same time to put in the words of Justice Iyer ‘an Initiator, Engineer and Indicator of Social Change.
India’s founding fathers and mothers were guided by the substantive and dynamic approach while incorporating ideal of Rule of Law in constitutional scheme. The preamble of the constitution ensures “Justice-Social, Economic and Political”that ensures “equality of status and Opportunity” and “Dignity of Individual”. Part III (Fundamental Rights) lays down fundamental rights guaranteed to every individual and justicable thorough Art.32 and Art. 226 respectively through Supreme Court and High Court as a fundamental right itself. Laws including ordinances, by laws, rules, regulations notification customs or usages having a force of law must Confirm with the constitutional requirements of the constitutional provision under art 13, if they do not confirm they will be declared void.Art14 enables ‘equality before law and equal protection of law’s and art 15,16,23 gives real meaning to equality by protective discrimination. The law of preventive detention which is abnomious to the rule of law must however confirm to the procedure established by laws under Art.21 of the constitution. Directive Principle of the State Policy under part IV makes certain Social, Educational, Cultural and Development Rights of an individual and of a community, as fundamental in governance of the state through constitutional mandate.
Believing in the equality assumption of Rule of law the founders did not believe in formal notion of equality. They were conciuos that formal notion of equality as articulated in Art. 14 would lead to perpetuating existing inequalities in name of caste, race, creed enacted a legal regime through provisions contained under Art 16, 17 and 23 giving real meaning of equality. In the case of Ram Krishna Dalmia Vs Jus Tendolkar the concept of equality was widened. The Supreme Court observed that there should not be discrimination either on the basis of Substantive Laws or on procedural laws. Art14 forbids class legislation but does not forbid reasonable classification, that is based on intelligible differentia that has a nexus with the objective of that Act. Similar cases like Mr. Balaji Vs State of Maysore, NargishMirjaVs Air India has widened the notion of equality and attached the real substantivemeaning to it. Through Maneka Gandhi Vs Union of India, Ajay HasiaVs Khalid Mujib and E.P. RoyappaVs State of Tamilnadu, Hon’ble Supreme Court of India has developed “a new doctrine of equality which sates that wherever there is arbitrariness is breach to equality , Art 14. The new formation of the concept of rule of law opened the gates of litigation under Art 14. and hassuperwidened the scope of equality clause.
To provide more meanings to Right To Life and Personal Liberty under Art 21, Maneka Gandhi VsUnion of India over-ruled A.K. GopalanVs……………and added ‘substantive due process’ with in meaning of procedural due process This development is referred as super- expansion of right to life and personal liberty provided whole new Jurisprudence of Right Based Litigation in India.
In the case of A.D.M. Jabalpur Vs Shiv Kant Shukla popularly known ‘Habeas Corpus case’, the Supreme Court was confronted with the question whether the third limb of Dicey’s doctrine was an integral part of Indian conception of Rule of Law. Through this case, an attempt was made to challenge the detention orders during the emergency on the ‘obligation to act in accordance with rule of law as the central feature of constitutional system and the basic feature of the constitution.’ Though the contention did not succeed and some justices even went on to suggest that ‘during an emergency, the emergency provision themselves constitute Rule of Law. Even in spite of the unfortunate judgment to the effect that shuts the doors of the court during an emergency are completely shut for detunes, it is gratifying to note that the concept of rule of law can be used as a legal concept. In the minority opinion Justice Khanna observed that:
“Rule of Law is the antithesis to arbitrariness. Even in the absence of Art 21 in the constitution, the state has no power to deprive a person, of his life or personal liberty without the authority of law. This is the essential postulates and the basic assumption of rule of law and not of men in all civilized nations. A state of negation of rule of law would not case to be such a state because of the fact such a state of negation of rule of law has been brought about by statue. Absence of rule of law would nevertheless be absence of rule of law even though it is brought about by a Law to repeat all laws.”
In the opinion of some of the judges constituting the majority inKeshvanandaBhartiVs state of Kerala, rule of law was considered as an “aspect of the doctrine of basic structure of the constitution, which even the plenary power of Parliament cannot reach to amend.” In Indira Nehru Gandhi Vs Raj Narain in which the Supreme Court invalidated clause (4) of Article 329-A, inserted in the Constitution by Constitution (Thirty-Nine Amendment) Act 1975 to immunize the election dispute to the office of the Prime Minister from any kind of judicial review, Khanna and Chandrahud JJ. Held that Art 329-A violated the concept of basic structure. Other judges though did not go to this extent but certainly held that since validation of the Prime Minister Election was not by applying any law, therefore it offends Rule of Law. According to Mathew J. clause (4) of Article 329-A offended the Rule of law which postulates the pervasiveness of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere. “ A study of Keshvanda, Indira Gandhi and other Habeas corpus cases” writes Prof. Baxi “ Provides a distribution of Indian Judicial thought on the conception of the rule of law which has evolved well over a quarter century. References to western theories and thinkers from Dicey’s onwards abound in these opinions, but these occur by way of rhetorical flourishes, masking the typically Indian approaches.”
The conception and approach towards Rule of law is very dynamic thus ‘Rule Law’ which we have today will not remain tomorrow the same. These changes are identifiable in our Socio-Legal climate. There are thirteen such rules which are forming and will be forming ‘Rule of Law’ of tomorrow.
First: the law must be accessible and so far as possible intelligible, clear and predictable because if every one is bound by law, they must be able without any difficulty to find out what it is , even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.
Second: the law should be refleivtive of majority peoples wish. A law which is arbitrary or result of abuse of power or dicreetion that is beyond and above of any chek and balance mechanism is not ‘Rule of Law’.
Third: Democracy that is inner and outer as well is the cure of ‘Rule of Law’. Democracy should not only be in its functional aspect but it should be coupled with the value demonstration. Democracy should be there in both formats: As a system that means decoratively elected government and democracy as a value as well that includes Demonstration enter and more importantly inner.
Fourth: That question of legal rights and liabilities should be resolved by application of the law and not the exercise of discretion which is unguided and unprotected a discretion should be narrowly defined and exercise should be capable of reasonable justifications.
Fifth: the impact of law should reach to the masses where the light of modernization has not reached law should be different according to the need of circumstances and persons who need special treatment. Moreover legal rights, liabilities should reach to the masses. Community capability building the foremost important aspect in achieving this goal.
Sixth: the nation of equality should be more dynamic. The equality forbids class0legisltation but does not forbid reasonable differentia and holds nerves with in the object of that. Equality should equity based equality to provide proper meaning to the inspection of Rule of Law.
Seventhly: Law must afford adequate protection to human rights. Professor Raz has written. “a non democratic legal system, based on the denial of human rights, on extensive poverty, an racial segeration, sexual inequalities and racial persecution may, in principle, confirm to the requirement of the rule of law better than any of the legal system of the more enlightened wetern Democracies it will be an immeasurably worse legal system, but it will excel in one respect its conformity to rule of law…….. The law may institute slavery without violating rule of law.”
Eight: Socio-economic –cultural-development rights protection is sine-qua-non for rule of law mechanism. These rights are in general mentioned under Directive principle of state policy which are fundamental in governance but not enforceable. This judiciary should play an artist role by interpretation then under the head of enforceable rights guaranteed by the constitution so that these rights become legal entitlement and gain equal importance as fundamental rights.
Nineth: law should apply equality to all, save to the extent those objective differences firstly differentiation. Some special provisions can properly be made for some category of people such as children, prisoners, women and mentally ill, based on particular characteristics of such categories.
Tenth: that means should be provided for resolving without prohibitive costs or in ordinate delay, bona-fide civil disputes which the parties themselves are unable to resolve. It would seems to be an obvious corollary of the principle that everyone is bound by and entitled to the benefit of the law that people should be able, in the last resort, to go to court to have their rights and liabilities determined. This is not a rule directed against arbitration and more informal means of dispute resolution, all of witch , properly restored to and fairly conducted have a supremely important contribution to make to the of law.
Eleventh: Ministers and Public officials at all level must exercise the powers conferred to them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits and emerging notions of Judicial Review. It is indeed fundamentals for although the citizen of democracy empower their representative institutions to make laws which, duly made, bind all of whom they apply, and if falls to the executive, the government of the day, to carry those lanes into effect, nothing ordinarily authorities executive to act otherwise than in strict accordance with those laws.
Twelfth: the adjudicative procedures provided by state should be fair the rule of law would seems to require no less. The general arguments in favour of open hearing are familiar, summed up on this side of the Alantic by the dictim that just must manifestly and undoubted be seen to be done. Application of this rule to ordinary civil process is largely unproblematic once it is remembered that not all decisions are purely judicial. As the Chief justice of Australia has pointed out “ the Rule of Law does not mean rule by lawyers.”
Thirteenth: the existing principle of Rule of law requires compliances by the state with its obligations in international law, the law which whether deriving from treaty or international custom and practices governing the conduct of nations should form its basis within the domestic laws as the global law and order is a sine qua non for present day legal system.
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