RULE OF LAW:
Concept and Reality
Our great country has a glorious tradition of the principle of Dharma governing all activities of all persons in community life, individually and collectively. Though it was not formally defined, it was well understood and accepted as a code of conduct to be observed by all for the very survival of society. Ancient texts refer to different aspects of Dharma in different contexts. In Shanti Parva of Mahabharata it is noted that “Truthfulness, being free from anger, sharing one’s wealth with others, forgiveness, fidelity to one’s wife, purity, absence of enmity, straight forwardness and maintaining persons dependent on oneself are nine Dharmas of persons belonging to all the varunas”.
As societies evolved from antiquity, individual violations of Dharma
became a problem, and the institution of kingship to enforce Dharma came into
being. With the advent of modern
age, monarchies were replaced by Nation States founded on principles of
democracy, to enunciate laws and enforce them through State institutions like
police, prosecutors, courts, jails, and so on.
However, the common thread running through all these changes is the
primacy of the rule of law. Brihadaranyakopanishad
" Law is king of kings. Nothing is superior to law. The law, aided by the power of the king, enables the weak to prevail over the strong."
The Constitution of
4. Certain basic fundamental rights, available individually to all citizens and other persons, are spelt out in the Constitution. They include the concept of equality before Law, freedom of speech, right to form associations, practice any profession, trade or business and so on. Article 21 lays down that no person shall be deprived of his life or personal liberty, except according to procedure established by law. Article 22 protects persons from arbitrary arrests and detentions in custody. Above all, Article 32 empowers the Supreme Court to intervene and enforce the due deliverance of these fundamental rights in individual cases where they are denied. Article 226 confers similar powers on High Courts to set right matters in their jurisdiction.
5. The primacy of the rule of law, which is fundamental to our democracy, is ultimately dependent on the respect given to law by the generality of people. This respect must be born not merely out of fear of law and the punishment it carries, but should be substantially based on genuine acceptance of the value of law to preserve society in its totality. This respect, which ought to be sustained among the people, takes a severe beating when the people’s representatives, who are the law makers in the legislatures, disregard law with impunity and become law breakers in their relentless pursuit of agitational politics of the day. Political leaders frequently organise public protests regarding some topical issues in the form of aggressive demonstrations which ultimately involve intimidation and violence. It is most regrettable that even the agitations launched by lawyers on some contentious legal issues have fallen into this pattern. All these developments detract from the respect for law.
of conduct for MPs and MLAs
A formal code of conduct for the MPs and MLAs as envisaged in Articles
105 and 194 is yet to be drawn up in our country, though several Commissions
(including the National Police Commission) had recommended early formulation of
the Code. It will be relevant to
recall here the observations of Dr. B.R.Ambedkar who, as the Law Minister of the
Government of India, was the principal architect of our Constitution and piloted
it through the Constituent Assembly. At
the close of the debate on the final reading of the Constitution he said:
“If we wish to maintain democracy, not
merely in form, but also in fact,
what must we do? The first thing in my judgment we must do is to hold fast to
constitutional methods of achieving our social and economic objectives.
It means we must abandon the bloody methods of revolution.
It means that we must abandon the method of civil disobedience,
non-co-operation and sathyagraha. When
there was no way left for constitutional methods for achieving economic and
social objectives, there was a great deal of justification for these
unconstitutional methods. These
methods are nothing but the grammar of anarchy, and the sooner they are
abandoned, the better for us.”
The marked reluctance of the political leadership of the country to legislate for regulating the conduct of members of the legislatures weakens the concept of rule of law. This yawning gap in the progress of constitutional governance of the country must be filled up soon.
of law - Poor and ignorant victims
7. The provisions in our Constitution relating to fundamental rights look fine on paper, but in reality how do the related working procedures reach the ordinary people in the lower rungs of economic or social hierarchy ? It is these poor people, mostly ignorant and semi-literate, that are subject to violations of fundamental rights including the universally acknowledged human rights, in their day to day life. They become hapless victims of such violations owing to the authoritarian and arbitrary style of performance of the executive down the line at the ground level.
and high-handed police action
8. Police, which is an important wing of the executive dealing with the rule of law, may be taken as an example. Whenever any complaint is made about the seeming arbitrariness of the action taken by the police in registering cases, conducting searches and making arrests and so on, the stock reply from the administration will be that everything is being done under the law, and law will take its course. It may be correct as a statement but how are the public to be assured that the course taken by law is a lawful course? It is no comfort to the victim to be told that ultimately the matter will be dealt with in a Court only where he will definitely get justice. The related process invariably takes a long time, and the harassment undergone by the victim remains permanent in his memory. We have, therefore, to evolve a method of checking arbitrariness, illegal conduct and untruthful disposal of matters even at the stage of investigation by the police.
Committee to monitor police investigations
9. One possible method would be to constitute a standing statutory screening committee at the State level, chaired by a retired High Court Judge with a retired administrator (of DGP’s rank) and a former Public Prosecutor as members which could check the integrity of the police investigation even as it proceeds. In regard to financial matters in administration we normally have the regular audit by Accountant-General’s staff which is a post-audit that is done after the transactions are over. In addition to this normal post-audit we also have the system of ‘concurrent audit’ even as the transactions are handled, with the help of Financial Advisers from the Accountant General’s wing working within the departments. The screening committee proposed now is to do something like ‘concurrent audit’ of police investigations. The police member of the Committee can check the professional thoroughness and completeness of the investigation, the lawyer member can check the adequacy of evidence in the material gathered by the investigation, and the judicial member can ensure overall objectivity and fairness in the process of investigation. It is not suggested that every police case should be scrutinised by the screening committee. Only those cases which are sensitive and have attracted critical public attention may be brought under the screening committee by a specific order of the government, either on its own or in due response to public reaction and the Legislature’s views in any specific case. Individual complaints of harassment and human rights violation which come up in the normal course will continue to be handled by the DGP and his senior officers. The DGP will keep the screening committee informed periodically about the nature of complaints received and their disposal.
10. Initially this concept of screening committee may be implemented by suitably enlarging the State Vigilance Commission to be a multi-member body and empowering it to do this work. On the experience gained in two years and reviewing the ground effect of the new scheme, a full-fledged screening committee may be put in position as a regular feature of the criminal justice system.
11. Even now, in some sensational cases the High Courts and the Supreme Court intervene at the stage of investigation, issue stay orders, get reports of investigation, scrutinise them, and then pass appropriate orders to set the law on its proper course. This unnecessary involvement of the Supreme Court and High Courts at the investigation stage itself can be avoided, if screening committees are set up in the States as suggested.
12. The National Human Rights Commission and the State Human Rights Commission provide another forum for redress of the victims of human rights violations. However, the NHRC and the SHRC have no powers under the Protection of Human Rights Act-1993 to direct the authorities to provide relief to the victims even when the Commission finds them deserving relief. The Commission can only recommend to the authorities to grant such relief. If the resulting situation calls for a direction to the authorities to grant the recommended relief, the NHRC or the SHRC can only move the Supreme Court or High Court to issue the direction under section 18(2) of the PHR Act. This position needs to be remedied by suitable amendments to PHR Act to confer the ‘directing’ powers on the NHRC and SHRCs themselves. Further, Parliament may also consider enacting a law under Article 32(3) to empower the NHRC to exercise the powers under clause (2) of the same Article in respect of violations of human rights.
of Bills before
13. Recent years have witnessed a spate of legislation in Parliament and the State Assemblies. Proceedings for legislation seem to be gone through in a hurry, without identifying and discussing the practical difficulties that might arise in the actual enforcement of the proposed law. The recent amendment to the Criminal Procedure Code in regard to anticipatory bail provisions is a typical example. After it had received the President’s assent and become law, the advocates mounted an aggressive agitation for the repeal of the provisions. What were they doing when the legislation was on the anvil? Apparently, even the legally knowledgeable legislators had not carefully read the provisions at that stage and had indifferently allowed the Bill to go through. We must have a proper working arrangement for a thorough scrutiny of every Bill before it is passed in the legislature. Small study groups may be constituted at some regional centres in the country, as a standing arrangement, to study every draft Bill from the enforcement point of view, and give their suggestions to the Law Ministry before the draft is finalised.
14. An independent judiciary is the most important constituent in any structured system for the enforcement of the rule of law in a democracy where political pulls and pressures will be operating all the time in community life. We should feel very happy and proud that our judiciary has remained independent and active to set right aberrations in legislation and governance from time to time. However, in the present scheme of things, criminals who seriously disturb public peace or the safety of individuals in society are first dealt with in police investigations and only later brought before the judiciary for adjudication of their guilt, on the basis of the material brought up by the police. The present system of superintendence over the police by the government gives scope for political or other extraneous interference with police investigations. The juxtaposition of an influencable police with an independent judiciary cannot ensure the integrity of the end result. It is some thing like a clean dining hall being served from an unhygienic kitchen. The food that is ultimately consumed leads to disease. To remedy this malady in the system the National Police Commission had made the important recommendation that the government should exercise its superintending power over the police, not unilaterally and directly as at present, but through a State Security Commission which will be a statutory body with a judicial member. It is unfortunate that this crucial recommendation has not been accepted by any political party in power. It is for enlightened citizen groups to build up public opinion and mount pressure on political leadership at the top to implement this recommendation to strengthen the rule of law.
15. The effectiveness of the rule of law is ultimately measured by the quickness of the delivery of justice at the end of the process. The rapidly mounting pendency of cases in all courts and the escalating delay in the disposal of these cases have made the system practically dysfunctional for the victims of crimes. With growing loss of faith in the established procedures, the victims of crimes, specially in urban slums and rural areas, resort to reprisals on their own with a vengeful attitude, giving rise to a chain reaction of violence to the serious detriment of public peace and order. There is urgent need to put in place alternate modes of disposal of the large mass of ordinary crimes that occur in the normal course all over the land. The National Police Commission had recommended in 1979 a system of village courts called Gram Nyayalayas to deal with ordinary criminal cases that occur in the country-side, adopting a simple and quick procedure in which the victims and witnesses can meaningfully participate and appreciate the final result of the proceedings. A detailed scheme was furnished, built upon an earlier model furnished by Justice Bhagawati Committee’s report on this subject. Unfortunately these recommendations have been kept aside. They should be examined now for implementation.
The rule of law enforced by a formally structured legal system will not,
and cannot, by itself secure order and stability in society.
It is the Dharmic principles of life and living, inherent in our
philosophy and culture, that can sustain overall social stability and peaceful
progress. Men are basically good but
vulnerable to evil, and society has a right
to be protected from men who turn evil. We
have to foster our deep moral values and strengthen our social institutions to
restrain the bad impulses of human nature. This
is the bottom line of our present situation.