RULE OF LAW:
Concept and Reality
C.V. Narasimhan
Tradition
of Dharma
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”.
Rule
of Law
2.
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
states that
" 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."
Constitution
of
India
3.
The Constitution of
India
, adopted by our Constituent Assembly in 1949 soon after
Independence
, is the basic fundamental document providing for the rule of law in the
democratic governance of our country. The
preamble to the Constitution significantly refers to a ‘democratic republic’
and assures the dignity of every individual citizen, within the frame-work of
unity and integrity of the Nation.
Laws
-
Fundamental Rights
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.
Respect
for law
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.
Code
of conduct for MPs and MLAs
6.
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.
Violations
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.
Arbitrary
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.
Screening
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.
National
Human Rights
Commission
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.
Scrutiny
of Bills before
legislation
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.
State
Security Commission
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.
Gram
Nyayalayas
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.
Moral
values
16.
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.