Updated: September 22, 2015 12:05:57 am
Rule of law has meant different things to different people at different times. This prompted constitutional historian Ivor Jennings to characterise it as “an unruly horse”. It may be difficult to define the concept with precision but in essence it signifies commitment to certain principles and values.
An essential principle of rule of law is that every executive action, if it is to operate to the prejudice of any person, must have legislative authority to support it. When John Adams used the historic phrase, “a government of laws and not of men”, what was emphasised was that law and not whimsicality or caprice should govern the conduct and affairs of people.
Rule of law symbolises the quest of civilised democratic societies to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence. Thanks to the prevalence of rule of law in our country, no official can detain a person unless there is legislative authority for such action. A police commissioner cannot ban a meeting, the staging of a play or the screening of a movie by passing a departmental order, based on a circular that has no legislative sanction. The absence of rule of law results in executive arbitrariness and the emergence of police raj.
Our Supreme Court has vigorously enforced rule of law. In a case before it arising from Punjab, whose no-nonsense police officials had forcibly thrown out trespassers from government premises, the court invalidated the action because at that time, there was no legal authority empowering forcible eviction. Another instance is the case of Pakistani PoWs who had served their full term of imprisonment but were still kept in jail. The government’s stand that Pakistani authorities had meted out the same treatment to Indian prisoners was brushed aside on the ground that, in India, “we enforce the rule of law, which applies to citizens and non-citizens alike”.
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Another basic tenet of rule of law as articulated by Thomas Fuller and adopted by the courts is “Be you ever so high the law is above you”. Therefore, no one, be he the prime minister, speaker, imam, archbishop, sankaracharya, judge or whoever, can claim immunity from the law.
Rule of law requires the enactment of a law, but that is not sufficient. Rule of law must not be confused with rule by law. Otherwise, rule of law would become an instrument of oppression and give legitimacy to the enacting of laws grossly violative of basic human rights as happened under the Nazi and Apartheid regimes. There is a certain core component without which a government cannot really be said to be based on rule of law — respect for basic human rights and dignity.
Over the years, India has suffered from the scourge of terrorism, which needs to be fought rigorously. However, anti-terror laws must not contain provisions that impair basic human rights. A law that permits the killing of suspected terrorists or enables indefinite detention without prior hearing in the absolute discretion of the executive is destructive of the rule of law. Fake encounters and “encounter specialists” have no place in a government professedly based on the rule of law.
A state in a free democratic society cannot have recourse to measures that violate the very essence of rule of law. In the words of Justice J.P. Stevens of the US Supreme Court, “if this nation is to remain true to its ideals, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny”.
That is the immaculate major premise of rule of law, which, in the words of the great Justice Vivian Bose, “is the only sane way to live at peace and amity with our neighbours in this complex world”. The true foundation on which rule of law can rest is its willing acceptance by people so that it becomes part of their own way of life. Therefore, we should strive to instil the rule of law temperament and culture at home and in educational institutions. The aim should be that rule of law becomes the secular religion of all nations based on tolerance and mutual respect.
The writer is a former attorney general of India.
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