“Freedom prospers when religion is vibrant and the rule of law under God is acknowledged”—Ronald Reagan
Rule of law is the age-old legal principle which says that, in any democratic society, the power of the Government shall be derived from law and such power should not be exercised arbitrarily. Understanding the principle of rule of law and adhering to the same is imperative for law students as this enables them to understand the democratic values in a civil society, thereby transforming them into responsible human beings. They get sensitized to the dos and don’ts of the society and aid the dispensation of justice. It is one attribute which needs to be inculcated in a law student so as to develop his professional ethics. The concept of Dharma (righteousness) is not new to India and the concept suggests that nobody is above the law.
Though an exact definition of the rule of law cannot be propounded, it would be pertinent to refer to A V Dicey’s inference which states that the edifice of rule of law basically stands on the tripod of three ideas:
It would be fair to say that the doctrine of rule of law has been deeply embedded in the preamble of the Constitution of India. Law students must understand the value of justice, liberty and equality enshrined in the Preamble so as to understand the functions the rule of law serves.
Supremacy of law is a cardinal principle of the rule of law which demands that the Government must be subject to the law of the land. It opposes the idea of unfettered discretion of the Government authorities as the same would interfere with the rights of the citizens. The principle of supremacy of law goes back as far as the history of rule of law when it was prevalent in the form of natural law. The relative elements of rule of law would be justice, morality, fairness and due process.
In India, the Supreme Court and the other appellate courts, through judicial activism, have made significant efforts towards protecting the constitutional freedoms and preventing the abuse of rule of law.
Equality before law implies that laws applied to an individual should be devoid of any bias of caste, creed, religion and even nationality. The rule of audi alterem partem has to be followed to the maximum extent, i.e., an accused be given a fair hearing. He is to be presumed innocent until proved guilty. The judges have to be impartial, independent and not subject to any political influence or manipulation. Perhaps what matters most is that the government officials accept that the law will be applied to their own conduct and hence the government seeks to be law abiding. Equality before law also means to secure the well-being of its citizens thereby conforming to the legal ethics of justice, equity and good conscience.
It is, however, important to bear in mind that equality before law is an idealistic concept in any democracy today. It would be absurd to conclude that the government authorities and the common citizens are equal and hence have the same rights. Let us take the example of a member of the armed forces who is entitled to use much more lawful power over an intruder than an average citizen. In this connection, a law student must understand that in a democracy, equality before law does not necessarily mean that certain special rights may not be granted to a particular class of individuals. Even the Indian Constitution, pursuant to the evolution of numerous case laws through article 14, speaks about reasonable differentia.
Independence of the judiciary is usually listed as a formal element of the rule of law, but its institutional nature makes it more apt to be discussed under a separate heading. It is commonly accepted that the judges should try to achieve an outcome that is substantively just, thereby taking human rights into account. The judiciary is an actor, whose task is to guarantee that the government and citizens obey the limitations set to their exercise of power. It was Montesquieu who first advocated for the independence of the judiciary as an element of rule of law.
Taking the Indian scenario, in the case of Shankari Prasad vs. Union of India (AIR 1951 SC 458) the question which arose was whether the fundamental rights can be amended under article 368 of the Constitution. The Apex Court held that the Parliament had the power to amend the Constitution and an amendment would be valid if it violates any fundamental right. However, this ruling was overturned by the Supreme Court in Golak Nath vs. State of Punjab (AIR 1967 SC 1643) wherein it was held that fundamental rights form the basic structure of the Constitution and were not amendable. Interestingly, whenever there is a mention of the independence of the judiciary, there is always a concern about the dangers of the judicial independence and there arises the need for judicial accountability. Giving due regard to the rule of law, the Law Commission has recommended for the inclusion of a whistleblower provision with a view to protecting those making complaints against the judges.
Growing complexity in state organization has led to increasing specialization in performing state functions and this trend has extended to supporting institutions as well. Over the last few decades, India has seen a spectacular growth of these “supporting institutions”, charged with safeguarding particular aspects of the rule of law; the National Human Rights Commission (NHRC) being one good example. The other instances are the Legal Aid cells and the Ombudsman which have found way into the Indian democracy. The reason we could include them within the ambit of rule of law is that in many cases, the judiciary alone is not sufficient to protect the rights of the citizens. Another feature of these institutions is that they are the outcome of international or transnational processes.
Part III of the Indian Constitution is a direct reflection of the Universal Declaration of Human Rights 1948. Part III enlists the fundamental rights, including the right to equality and the same is enforceable by the courts of law. Certain basic human rights such as equality before law, freedom of speech and expression, freedom of religion, are the inalienable rights available to an individual in a civil society. Rule of law is said to be practiced only when the Constitution provides for safeguards against the violation of these rights. There are also certain constitutional remedies which protect the fundamental rights of an individual. For instance, the writ of Habeas Corpus imposes the obligation on the authorities to produce the detained individual before the concerned magistrate or court, as required by law. In Rudal Shah vs. State of Bihar (AIR 1983 SC 1806), the petitioner Rudal Shah filed a writ of Habeas Corpus against his illegal detention in the prison for more than fourteen years. He also prayed for his rehabilitation cost and compensation for illegal detention. The question which arose was whether the court, while exercising jurisdiction under Article 32, could pass an order for compensation for the deprivation of fundamental rights. The court answered in the affirmative. This decision proved to be a landmark judgment as it reaffirmed that violation of a fundamental right can give rise to civil liability.
Constitutional supremacy in India denotes that all public authorities, their orders or law must be in line with the provisions of the Constitution, and such orders should not violate the provisions of the Constitution.
Although we should be proud of the founding fathers who have successfully drafted our Constitution; let us not turn a blind eye from the real picture prevailing in the country. Time and again people have faced injustice and there have been instances of failure of constitutional machinery. But it would be fair to say that the Supreme Court has always been the sentinel of the true spirit of the constitution based on the strong foundation of rule of law.
In Vishaka & other vs. State of Rajasthan & others (AIR 1997 SC 3011) the Supreme Court for the very first time drew upon an international human rights law instrument i.e. the Convention on the Elimination of All forms of Discrimination against Women (CEDAW). It also set a precedent regarding how courts should rely on international rule of law standards in cases where there is no national legislation. But how far the Vishakha Guidelines have been implemented is open to debate. The recent verdict in Bhopal Gas Tragedy case was passed after more than twenty-five years. Isn’t delayed justice murder of rule of law? These questions still remain unanswered.
There lies great responsibility on the shoulders of law students who must aim at possessing an unfaltering view on the importance of the Rule of Law and therefore facilitate access to justice. In this connection, students of law must actively participate in the legal aid camps as the same would strengthen the immediate protection of civilians and provide a form of legal redress for human rights violations, protection deficits and lack of security. Every endeavour should be made to raise the awareness of legal rights for the citizens and also to facilitate access to justice by empowering them with all possibilities of legal redress. Law students of modern India should take a step further in strengthening the accountability of the government institutions. It should not matter to students that the work is ‘pro bono’ in nature because through this, they will be fulfilling their socio-legal responsibility. These steps could go a long way in illuminating the citizens of the country towards the need of rule of law who would then be reminded of the fact that: “Eternal vigilance is the price of liberty!”
Gopal Subramaniam Solicitor General of India
What is important is to look at the role which law can play as a process. Law is a crucial process in one’s life whether you are driving a car, paying taxes, or setting prices for things. The Rule of Law is actually impartial and objective, and cannot be easily manipulated. A Rule of Law is vital for any democratic society, and can never be maintained without watchdogs to ensure its smooth functioning. Therefore, those who study law or practice law are important sentinels for the Rule and have to protect democratic institutions including free thinkers, a free society. Individual freedom can be maintained only by the Rule of Law.
Exactly! It really is to ensure that there is no arbitrariness in behaviour, no excision or any kind of wrong doing or oppression by the state or the executive. That is ensured only by adherence to the Rule of Law.
I think students have a very major role to play in ‘access to justice programmes’ and I hope that in the new curriculum, which we will be designing, there will be a very serious emphasis on access to justice as part of legal education. So, all law students will be able to actually reach out to people and they must reach out to people. They must make their own assumptions and be able to see how law is administered. That is where the moral force which students can play in trying to see that law is administered fairly and evenly can never be under estimated.We think that participation of students in legal aid clinics should be made mandatory.
One important objective for which the bar council was setup was to ensure provision of legal aid. But over a period of time on account of lack of focus, we have not been able to structure legal aid. So legal aid is now one of my major projects. I hope for this project can go a long way in being able to atleast afford reasonable access to justice for the poor. This needs a mass movement, mass connectivity. It needs connectivity with lawyers practising in the rural sector.We are trying to work out how to reach out to the poor.
I think social engineering is really the right word. In India, when I see examples of young students pursuing their convictions with complete steadfastness, I find so many inspiring examples before me. Therefore there is no shortage of inspiration. That is one of the important things which law students have to be taught; i.e. how to open up their minds. Law is meant to free you from prejudice and irrationality – that is really the presence of law.
When I started my career, I believed in the Constitution but more than halfway down my life, I think law has something to do with your way of living and influence the way of living of common men and society. That is where law is of vital importance. So, I would tell the present day students that they are much brighter and cleverer than we could ever be.We have very high expectations from them to function not as just very capable lawyers but also to act as effective social engineers. …as told to Avinash Mohapatra
Soli Sorabjee speaks….
The principles of the Rule of Law should be inculcated at the school and college level – it is not a cliche. It is a way of life… a code of conduct, an order within a society. The law is above all and it prevails. The Rule of Law treats everyone the same. Emphasise on the principle of equality, you may be anything or anyone; no matter who it is- if he has committed an offence, he will be dealt with under the law as in the case of other individuals.
It is essential; specially in educational institutions where young students are, to focus on the Rule. Beyond public litigation and acts, the Rule must be brought into them as it has been recognised as the basic feature of our constitution. There is no taxation without the authority of law. Freedom of individuals under the interest of the public can only be restricted by a law. It should not be just on paper, but should be translated into a culture and a decorum. Many of us do not know, but the Rule of Law has been significantly mentioned in the Preamble.
First and foremost, they must acquire proper knowledge about the basic principles of law. Social engineering must be to analyse the ailments of common people in the legal system. Focus should be on areas where there is real depth. For an instance, there are prisoners rotting in jail, many of them serving time much longer than they should be. Being around such situations will help today’s youth develop a conscience.
Law should not be seen by students as a way to make a mini fortune in a short span of time. After all, social service is the most important element of our profession. People looking for money making should opt for other businesses. Charging money is not wrong, but making money should not be the predominant motive of being in this profession. Avinash, it is no secret that lawyers who charge fortunes to make an appearance in court are not the role models of today’s youth.
My only advice is that a law student should have commitments to the profession which he is entering into. Please remember that there are no instant gains. Hard work is the first thing, second is practice – and very important is fairness and honesty towards the court. Don’t suppress facts even if your client wants you to. Never compromise on principles! ….As told to Avinash Mohapatra
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