The Rule of Law is an Eurocentric concept that was used by the rising commercial and industrial interests from the 17th century onwards to seize sovereign power from the aristocracy. It has so far kept the multitude of people away from political power.
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When delivering the P.D. Desai memorial lecture on ‘Rule of Law’, the Chief Justice of India, N.V. Ramana made some important observations regarding the current political process, which require discussion and debate. The learned judge explained that he chose this topic because this is one topic which is never going to lose its sheen and relevance and its story is nothing but the story of civilisations.
In its most general sense, law is a tool of social control which is backed by the authority of the entity which has sovereignty in that country. Law is needed to render justice, but it can also be used to justify oppression in the hands of an autocratic authority. The judge too made this clear by saying that there are unjust laws and just laws
To illustrate this point, the CJI spoke about how the British colonialists enacted various laws to further their economic and political interests, at the cost of the people in the colonies. It was ‘Rule by Law’, rather than ‘Rule of Law’ according to him. The supreme power did not care whether these laws were just or legitimate as their only purpose was to serve the best interests of the colonial power. But the crux of the matter is that there is no difference between these two concepts. The ‘Rule of Law’ is indeed ‘Rule by Law’. The British colonial power used the Rule of Law to suppress both the masses of people in Britain as well as in the colonies, to safeguard the interests of the ruling elite.
In a society riddled with gross inequality and injustice, such as in India, the law is not applied impartially to the rich and poor. Today, the vast majority of people do not have access to courts or any other mechanism to defend themselves and assert their rights as human beings. This is reflected in the total absence of any constitutional guarantees for the right to employment, health, and free speech. That the Rule of Law is loaded against and wantonly used to suppress those who are unhappy with the current state of affairs is evident in the huge number of cases foisted on those who raised their voices in dissent. Under preventive detention laws such as UAPA the onus is on the victims to prove their innocence – so even the usual principles of justice are thrown to the winds here.
Therefore, before accepting the Rule of Law as the sine qua non of modern democracy, let us for a moment look at its recent history.
The International Commission of Jurists (ICJ) was established in 1953, at the end of World War II and the defeat of fascist Germany. In 1955, the ICJ held its first international Congress in Athens, Greece, at which it adopted “the Act of Athens”. The Act declared that the State is necessarily bound by the law and that governments must respect human rights under the Rule of Law. It also began to set out the special role of judges and lawyers in preserving the independence of their professions. But, the history of ICJ in the cold-war period when it acted as a tool of the US in criticising human rights violations of the Soviet Union selectively, raises doubts about its declarations about the state being bound by law and its impartiality.
CJI Ramana recalls that the ICJ convened in New Delhi in 1959 and issued the ‘Declaration of Delhi’, which affirmed the need for ‘a completely independent judiciary’. He says that the ICJ declared that the rule of law “is a dynamic concept which must be employed to safeguard and advance the civil and political rights of individual in a free society.”
In fact, the ICJ alone is not to be blamed by these deceptive attributes attached to the Rule of Law. Questions such as the State being bound by law and the independence of an institution of the State from the sovereign power were raised many centuries back. In the early part of the 17th century, when King James I claimed absolute power citing the principle of the ‘divine right of kings’ against the rising mercantile and industrial interests which wanted supreme power in their hands. The King pointed out that he cannot remain a sovereign power if he is subjected to the law of Parliament. At that time, the English Chief Justice Sir Edward Coke opposed the concept of the Royal Prerogative and argued that the king had no other prerogative other than the law allowed him. The struggle between the King and Parliament continued after James I and a system of ‘King in Parliament’ established, practiced till today in Britain. It is in this fight against the monarchy that the mercantile and industrial classes clutched at the idea of ‘Rule by Law’ and the accompanying concepts of ”good government “ and ”defence of civil liberties”.
In this entire struggle what became clear was that that there is a supreme power which is absolute and necessarily above law. The landed and commercial interests wanted this power for themselves and not for the people. But it was impossible for them to uproot aristocracy without the support of the vast multitude of people. Therefore, they took recourse to the concept of ‘Rule of Law’, a flimsy guarantee against arbitrary rule of the King.
In the period of 150 years after James I, the power of the aristocratic obsolescent forces waned. The power of the commercial and industrial interests increased. But both kept the people out of power. Sovereign power was always in the hands of these two ruling classes but never in the hands of people. By the end of the 18th century, mechanisms, and institutions such as the jails, security forces and the party system of government with periodic elections ensured that power always remained in the hands of the ruling elite. Periodic elections resolved the contradictions among the ruling elite while giving the illusion to the people that they had a say in selecting their rulers.
In 1947, the new rulers of India did not hesitate to gratefully accept this principle of Rule of Law from their erstwhile masters. Whatever was the contradiction between the Indian commercial interests and the British, the former recognised that it is the same method of rule they would need to follow to keep the common people away from holding sovereign power. The present Constitution of India clearly reposes this supreme power in the hands of the President who will act on the advise of the Council of Ministers and swears by the Rule of Law. Several judges, like the present CJI, have pointed out that this sovereign power should not be unrestrained, that it should be tempered by two other pillars of the present political process, the legislature and the judiciary. But it has got them into the same tangle as Justice Coke fell into and met with the same argument as the one which James I advanced, that if a sovereign power is restrained by law, it is no longer a sovereign power. In fact the concept of ‘Rule of Law’ has many times been ridiculed as a rule of lawyers and judges; but nevertheless, we should not for a moment forget that it is essentially RULE (over the people) BY (using the force of patently unjust) LAW.
It is in this light that Justice Ramana’s observations about the need for “a strong and independent judiciary” and that “the mere right to change the ruler, once every few years,, by itself, will not be a guarantee against tyranny” need to be examined.
Justice Ramana mentions that British jurists such as AV Dicey and Lord Bingham have given modern interpretations to the Rule of Law. They have delineated principles such as equality before law, equal access to justice, right of people to participate in the creation and refinement of laws, an independent judiciary and so on, which the CJI feels are absent today and need to be established. But he has not commented about the core idea of the Rule of Law, that of deprivation, of keeping common people away from holding sovereign power.
When India became independent in 1947, people had great aspirations that at last they will have a say in running the affairs of the country. But their dreams were given a big jolt when the founding fathers of the Indian Constitution declared that people were not yet ready to rule and that they should entrust governance to their elected representatives under a party system of democracy and Rule of Law borrowed from the very oppressors from whom the country was liberated.
The CJI comments that ‘For the judiciary to apply checks on governmental power and action, it has to have complete freedom. The judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the Rule of Law would become illusory’. But unfortunately, supreme power is firmly in the hands of the executive in the present system of representative democracy. This executive serves the ruling elite of the country consisting of the big monopolies and industrial houses. The legislature is only the conduit and the legitimising body for this executive. It provides a screen for the supreme power exercised by the executive in the interests of the economically most powerful interests and their elected representatives whom they have funded.
Given these facts it is not possible to agree with the CJI that ‘reverence for the Rule of Law is our best hope for survival as a free society and that ‘in order to advance the Rule of Law we primarily need to create a society where Rule of Law is respected and cherished’. In fact, through several struggles which the people have fought and are fighting over the decades – such as the fight of workers for their economic and political rights, the struggle against privatisation of publicly owned property which is being waged across the length and breadth of the country, the epic struggle of farmers against unjust agricultural laws, the numerous struggles of women for dignity and against violence – people are realising that they do not have control over their lives, they do not have sovereignty in their hands. It is time that the movement for people’s empowerment demands an end to the marginalisation of people and takes the initiative to herald a new period of true democracy where sovereign power lies in the hands of people. In this modern system of democracy and political process, people will have the right and appropriate mechanisms to initiate new legislation which serves their interests, to annul laws which violate the fundamental rights of people, and to ensure accountability of the institutions of the state.