Beyond the Rule of Law.

Like the history, which is written and reaches us through victorious party, law of the day/ land, too reflect the equilibrium point between different stakeholders of the society. These stake holders can be ruler-ruled, different genders, caste, economic class or political ideology, and so on. And if, based on power equation, this equilibrium is not just or natural, which is generally the case; rules made out of it will not be just. Further, the ^“Rule of Law” which is interpreted or assumed ideally as law being above everyone and to be applied to everyone, irrespective of rulers or ruled and   no one can grant exemption to the application of the law and so on, is generally not found in practice anywhere. Thus before we sing in praise of “Rule of Law” or condemn the action of a section of society that is not obeying “Rule of Law”, we have to examine (above) two aspect of “Rule of Law”. One whether it is just and second whether assumptions made there in are followed in practice or not. If “Rule of Law” fails either of the condition then “Rule of Law” cannot be said to be the ultimate solution for wellbeing of human kind. Then, “Rule of Law” is not enough; we need “Rule of Justice”.

Before that, to understand spirit behind it, let us understand how concept of “Rule of Law” has evolved through ages,. The development of the legal concept of “Rule of Law” can be traced through history to many ancient civilizations. In the West, the ancient initially regarded the best form of government as rule by the best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law.  However, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws.  For him it is more proper that by “Rule of Law” law should govern than any one of the citizens. Upon the same principle, if it is necessary to place the supreme power in some particular persons, they should be appointed to be only guardians and the servants of the laws. The Roman statesman Cicero said- "We are all servants of the laws in order to be free." Under the Roman Empire, the sovereign was personally immune, but those with grievances could sue the treasury. In China, during the 3rd century BC, members of the school of legalism  argued for using law as a tool of governance. But they promoted "rule by law" as opposed to "rule of law", meaning that they placed the aristocrats and emperor above the law.  The difference (between two) ... is that, under the “rule of law”, the law is pre-eminent and serve as a check against the abuse of power. While, under “rule by law”, the law is a mere tool for a government, which suppresses in a legalistic fashion. In contrast, Daoism rejected “rule by law” in favor of a natural law that even the ruler would be subject to. In Islamic system rule of law was formulated in the seventh century, so that no official, not even the Caliph, could claim to be above the law. In India, in spite of general hereditary Monarchy structure found everywhere, we find mention of some Republics also. 

In modern times (1215 A.D.), Archbishop Stephen Langton gathered the Barons in England and forced King John and future sovereigns and magistrates  to back the Rule of Law, preserving ancient liberties by (accepting) “Magna Carta ( Libertatum)” (in Latin and meaning  Great Charter of Freedom) in return for exacting taxes. This foundation (give and take principle between ruler and ruled) of a constitution was later carried into the United States’ constitution also. Further, Samuel Rutherford in the title Lex Rex (1644) Latin for "the law is king", gave the principle theoretical foundations to concept, subverting the traditional formulation Rex Lex ("the king is law").  Further John Locke in his Second Treaties of Government (1690) wrote “The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man, in society, is to be under no other legislative power, but that established, by consent; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it”. Later the influence of Britain, France and the United States contributed to spreading the principle of the “Rule of Law” to other countries around the world.

                                        

The concept of “Rule of Law” have also been properly defined by the Oxford English Dictionary as: The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes. It stands in contrast to the idea that the ruler is above the law, for example by “Divine Right”. It means, no man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural.

Thus what is meant by the “Rule of Law” as evolved over time and defined in dictionary is ruler is guardian and servant of law. Rules are made by Consent of (ruled) and trust put upon ruler (by ruled), and law of nature is the ultimate guide (of governance). Based on it several meaning of rule of law follows and these are, one that no person or government is above the law. It also means that no government or its officials can enforce laws that are unfair or unjust. Rule of law should help to guarantee adherence to the beliefs of the sovereignty of law, impartiality before the legislation, accountability to the law, fairness in the administration of the law, the division of powers, assistance in decision-making, legal confidence, absence of arbitrariness-procedural and legal etc. Further, what are/should be the objective of “Rule of Law” in a country? They are to keep the peace in a country, shaping moral standards, promoting social justice, facilitating orderly change, providing a basis for compromise and lastly to help in facilitating a plan.  So, to put in practice above rules and achieve objectives, conventionally there are three branches of government in each polity that makes up the nation.  These are the legislature, the executive and the judiciary. In a country of parliamentary democracy, the judiciary is independent of the other two branches; the executive is dependent on the legislature. Whereas the legislature enacts law, the judiciary interprets law and the ultimate power of enforcement of the law (as moderated by legislator and judiciary) lies in the hands of the executive. Under this arrangement arbitrary use of power by the executives is tantamount to challenging the concept of the rule of law.

Now, if we evaluate our constitution, legislative rules, procedural rules and interpretative rule, against the basic ideals, objective and functions of “Rule of Law” we find some aberrations and lacuna in enactment of most of laws including constitution. I am not saying they are good or bad, desirable or not desirable, just evaluating them based on concept of “Rule of Law”.  Before, that context of enacting constitution and related laws should be understood. India got independence from British in 1947. That time India was mostly governed by independent princely states or princely states under British rule. Thus Indian ruler as well as ruled (in spite of 90 year direct British rule), was far away from the concept of “Rule of Law”. King was believed to be incarnation of “GOD” (Divine Right), and above the law or the way Plato had advocated King to be. Society in large believed in Tulasidas’s (mis) quote “समरथ को नहीं दोष गुसाईं” (powerful has no fault) and was divided based on caste, region and so on. However, the Constitution of India intended for India to be a country governed by the rule of law. It declared that the constitution shall be the supreme power in the land and provided for separation of power among three arms of governance. The legislature and the executive shall derive their authority from the constitution. Ideals of “Rule of law” were also given impliedly in the preamble and such concept is enshrined in Part III (Fundamental Rights) of the Indian Constitution.

Now evaluation, first take the constitution itself, by way of affirmative action, it provides for reservation ( in education and employment) for some caste, freedom of religious practices, different personal laws for followers of different religion, protection to aborigines from outsider and so on. So, basic premise that all are equal before law itself is not met here, in fact it throws light on basic equilibrium or compromise of power (as written in the introduction of article and mentioned elsewhere that compromise being as one of the objective of good law) of different stakeholder of a group “We People” called “India” at the time of independence. Further, although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion, in practice the more text in the constitution has given the greater opportunity to the judiciary to exercise judicial review. Thus, the rule of law or rather the Constitution [is] in danger of being supplanted by the “Rule of Judges”. Further, ancient prejudices, social and political bias (including  continuation of laws made of British for Colonial India) have been still present in the three branches of government, and justice has been processed formally according to the law but in fact more closely aligned with royalist and colonist principles that are still advocated in the 21st century.  Below I elaborate it in detail.

In democracy a basic tenant is, 50.1% people can make rule for 100% people and then it is declared “Law of The Land” and whether rest of 49.9 % agrees about it or not is immaterial, this is so even when subject matter is related to 49.9 % people themselves. Further in parliamentary democracy, like us, where “First Past The Post” system have been adopted, legislator having 50.1 % number do generally have only 30-33 % population’s (voter) support. Thus in practice “Rule of Legislator” becomes “Rule of (minority) Majority”.  Next in line comes is “Procedural Law or Administrative Law” which are enacted to enforce legislative law and here in the name of implementing “Rule of Law”, most elements anti thesis to “Rule of Law” are introduced and justified. These are, Discretion (it supplants the rule of law, remember 2G and Coal allotment cases), Privileges (No accountability of MPs for what is spoken in side Parliament etc), Exemptions (see long list of exemptions on Toll Booth) and so on, so better term them “Law of executive”. Last is “Interpretive Law”, these are the judgments pronounced by judiciary while reviewing a law or deciding a dispute and become “Law of the Land”. But these are affected by leaning or bias of individual judges and are never consistent over a period of time or by different judges. Thus as said above interpretive law in fact becomes “Law of Judges” and speaking against them is “Contempt of Court”. Again, Laws (due to reasons stated above) may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional (as passed by legislator and implemented by executive within the powers delegated to them) as to justify the Judges in refusing to give them effect. It is worth to be mentioned that all these aberrations occur when the administration in the governmental branches suffer from non-accountability & non-answerability, corruption, nepotism and favouritism(remember the case of Jamat Congregation, where no one seems accountable or answerable how this allowed to be happened and whole burden and accusation is passed on citizens ). And these have the detriment which ultimately results in the vicious circle of “Tyranny of Law ( elected)” and “Violation of rule of law” in a particular State.

So far we have discussed that the way laws are framed, interpreted and implemented, many thing goes wrong with rule of law. Further “Rule of Law” has two aspects, “Letter” and “Spirit”. “Letter” means what is written in it and “Spirit”   what is the intention of law, what it intends to achieve and so on? Ruler and Ruled both may seem to follow “Letter” of law but breaking the “Spirit” of law. There are battery of advocates and chartered accountants whose value depends upon the way they find out loop holes in laws. A few well known cases will explain this situation. First, Demonetization of 2016, where in against the government’s initial estimate that Rs. 3.4lac crore worth notes will not return to banking system, people ( with help of banker or bankers having closed the eye) devised ways and means to deposit all the money. Take another case of Hanging of Murderers of Nirbhaya Rape case. While legal remedies as well as “law of hanging together” is there to protect individuals from injustice from irreversible action, they or their advocates cleverly used all the legal remedies one by one and with maximum interval to delay execution of judgment. Next, take our Anti Defection Law to prevent “Aya Ram Gaya Ram” culture in politics. But look at the way political parties have come up with idea of getting resignation of ruling party MLA to lower effective strength in state assembly, resulting in their own strength becoming majority and in turn present majority government is toppled. For example in a legislator house if total  strength is 100,with 51 ruling party and 49 opposition party MLA, just getting resignation of 3 ruling party MLA( by any means)  changes the scene as effective strength  becomes 97, ruling party 48, opposition party 49 and so government changes.  And In neither case any violation of any law can be found.

Thus, even just viewing society as static (not changing with time) we observe that ruler is turning “Rule of Law” in to “Rule by Law” (exempting self). Ruled (citizen), observing the ruler ( not obeying law) and finding rules unjust, either find loop holes in it or directly violet the same. But due to technology, economic and social changes, society is always in dynamic condition and basic equilibrium of stake holder itself changes over the time. This necessitates change in law. Under the circumstances if “Rules” do not find new equilibrium amicably, we find unrest and unsolved issues in society, Anna Hazare Movement, Naxal problem, Maratha /Jat reservation issues (reservation issue aroused due to decline in Agriculture as against other sector) and so on all indicate the requirement to change the law.

Thus, we conclude that “Rule of Law”, (which is better than and has replaced ancient concept of “Rule by King”), as practiced is not achieving its basic objective of peace and harmony in society. Thus praising Rule of Law or condemning breaking of Rule of law is not justified and sufficient. Presently it seems to have lost its sanctity among ruler as well ruled and we may be inching towards anarchy of law. In fact, we need to evaluate “Rule of Law”   based on concept of Natural Law. And we need “Rule of Justice” based on Natural Laws. It will enhance peace and harmony in socity. It will promote moral behaviour. It is important for citizens, as otherwise they wish to escape from motherland. It is important to foreign investors ( to be interested in India) too and for economic development of country. Its spill over will enhance prospects for related values such as democracy and human rights.  Without good governance and a strong commitment to the rule of justice, development would be difficult if not impossible. Change of mind state and attitude is urgently required.