The expression “Rule of Law” is difficult to define. During all these years it has received different interpretations by jurists in different parts of the world at different times. It is however desirable to indicate the broad principles underlying the concept of the ‘rule of law’.
Firstly it presupposes that every action of any person including the executive arm of the Government must be authorised by law or must be traceable to some provision of law. Secondly no person can be punished except for breach of law. Thirdly no person however high he may be is above law. Even the Sovereign, whether he is a monarch as in ancient times, or the government of the present day is subject to law. In the ancient days it was recognised that ‘Dharma’ is the sovereign over all sovereigns and the king was not above law or Dharma. Manu suggested that in case of breach of law by the King, the King should impose punishment on himself. He suggested that the self imposed punishment should be thousand times more than the punishment imposed on any ordinary individual.
Perhaps it is necessary to
have in these days a similar provision in all enactments imposing a higher
punishment on delinquents who are in charge of administering the law. The higher the position the offender
occupies, the greater should be the punishment. Even if there is no specific rule of law to that effect, a judge
should in the exercise of his discretion impose greater punishment on those who
occupy responsible positions, or who are well-to-do. No sympathy should be extended to those indulging in social
crimes like smuggling, willful evasion of tax, adulteration, black-marketing
etc.,
Closely connected with the
principle that no person is above law is the principle of equality before
law. To say that no person is above law
is the same thing as saying everyone is equally subject to law. But there are several exceptions to this
rule. By necessity there has to be
classification in some cases.
For instance in some areas
women cannot be subject to the same law as men though happily this area is
being considerably narrowed down in recent time. Similarly children cannot be subject to the same law as adults. But care has to be taken to see that the
fundamental principle of equality is kept in mind and the exceptions do not eat
away the rule. Unfortunately at
present, under the guise of exceptions and exemption, persons in power are
getting large benefits which are not available to the ordinary man. Lip service only is being paid to the rule
of law and the principle of equality before law, and many exceptions which are
totally unjustifiable are being made in favour of persons in power. It is distressing to find that our leaders
who claim to be representatives of the common man enjoy a number of benefits
denied to those whom they represent.
In spite of the difficulty
in administering equal justice in practice, the principle of ‘rule of law’ and
equality before the law remain the most effective antidotes to arbitrariness.
In order to see that the
rule of law is effectively implemented, it is absolutely necessary that there
should be a strong and independent Judiciary.
A Judge should not import his private notions while interpreting or
enforcing a law. He should not be
guided solely by his own sense of justice or by his own social sense or
outlook, for justice must be according to law.
But at the same time, it must be realised that a judge is also a human
being. It is difficult for him to rid
his mind of his preferences, prejudices or values and to operate in a rarified
atmosphere of objectivity. Of course by
training, the Judges have learnt to impose on themselves what is called
‘Judicial self restraint’. Where the
legislature is attempting to improve the standard of weaker sections of the
community, and legislation is being introduced from time to time with a view to
securing economic and social justice, the Judge who allows the legislature
maximum freedom, would in my view, though paradoxically, be an ‘activist Judge’
– phrase which has become fashionable in modern time.
The Judge should look at the
Constitution as a breathing organism which contains within itself, as all life
must, the seeds of future growth and development.
Some feel that the strict
implementation of the rule of law has resulted in retarding progress and
securing economic and social justice and that courts have stood in the way by
giving too literal an interpretation of the rule of law.
There is no doubt some
justification in the criticism that the complex legal process and the attitude
of some of the Judges stood to some extent in the way of securing social and
economic justice. But it is wrong to
lay the blame entirely on the Courts and the legal framework.
The two greatest stumbling
blocks in implementing socio-economic laws are the enormous degree of
corruption, which is rampant in the country and the unwillingness to enforce
the law. Unless corruption is rooted
out, all legislation regarding economic and social justice will remain only on
paper.
Again in order that the rule
of law should have full force and vigour, it should be enforced strictly. Several ills in this country are due to the
fact that the laws are not enforced. A
law which is not enforced is worse than there being no law at all. In the latter case, all persons are free
from the shackles of law. In the
former, it is only the law abiding citizen that comes within the net of law and
the law-breaker escapes from its clutches.
This leads to frustration in the minds of the law-abiding citizen and
induces him also to break the law.
There cannot be a greater damage to society than the feeling that a
person who obeys law is in a much worse position than a law-breaker. If the rule of law has to have any meaning
at all, it must be enforced and enforced strictly, equally and
impartiality. As the law enforcing
authorities are not enforcing the law promptly and effectively, unruly elements
are taking law into their own hands.
It is therefore necessary
that all the branches must make a determined effort to restore the faith of the
ordinary man in the rule of law. If
this is to be done, people at the top must give the lead. If the person at the top has no regard for
law, if he is himself corrupt, if he circumvents law and resorts to
questionable methods, how can we expect the ordinary man to obey the law? Unless people in high position observe
strict standards, life becomes a savage fight in which no chicanery is barred,
no quarter given and the only recognised principle is that the devil takes the
hindmost.