Was ‘Rule of Law’ meant to be universal?

President’s Blog

Image Caption: Activists in New Delhi on August 18 hold placards during a protest against the release of men convicted of gangraping Bilkis Bano during the 2002 communal riots in Gujarat. | Money Sharma/AFP

Image Source: https://scroll.in/latest/1031196/release-of-bilkis-bano-case-convicts-will-have-chilling-effect-meghalaya-citizens-tell-president

Most viewers of television and readers of newspapers, not to speak of social media groups, would be aware of the Bilkis Bano case. Yet it is important to repeat the main developments in this case. An attitude of  ‘let’s forget and forgive’  can take democracy and justice nearer to the hell hole, where they are already heading.

The Bilkis Bano case is a harrowing tale underscoring the unspeakable horrors that took place in 2002. Bilkis Bano, pregnant at the time, was gangraped and her three-year-old daughter Saleha was among 14 killed by a mob on March 3, 2002, in Dahod during violence that broke out across Gujarat after the Sabarmati Express was attacked in Godhra and 59 passengers, mainly kar sevaks, were killed.

Recently, a few days before the 76^th Independence Day, 11 convicts accused of these horrors walked out of prison after the Gujarat government panel remitted life sentences awarded to them. (See Box 1 for key events since 2002)

While justice seemed to have grabbed a victory, after over 15 years in jail, one of the convicts, approached the Gujarat High Court seeking remission of his sentence. The High Court dismissed this plea while observing that the “appropriate government” to take a decision in the matter was Maharashtra, and not Gujarat. However, the Supreme Court, while rejecting the High Court’s view in the case held that the remission application had to be decided by the Gujarat Government as the offence took place in the State of Gujarat. Accordingly, the court directed the government of Gujarat, the accused itself, to look into the question of remission. The Gujarat government promptly awarded remission to the eleven convicts who had been sentenced to life imprisonment on charges of gang rape and murder.

Several questions have arisen in legal minds across the country regarding the legality of the remission. Readers should bear with me for listing all these questions.

Firstly, a fundamental tenet of legal jurisprudence is that the executive cannot change a court-issued sentence. What happened in this case?

Secondly, is the Gujarat Government, which itself is the accused, the “appropriate government” to grant remission?

Thirdly, is the Central Government’s concurrence necessary in cases of remissions by state government? Will that make any difference?

Fourthly, is the opinion of the presiding judge necessary?

And lastly, do past verdicts of the Supreme Court of India support such instances of remission?

Thankfully, I am not going to answer these questions here. Readers can heave a sigh of relief.

What I am going to take up for discussion here is the comment of the Former Supreme Court Judge Sujata Manohar, who was a member of the National Human Rights Commission (NHRC) when the body intervened in 2003 on behalf of Bilkis Bano. She termed the government’s decision to release 11 convicts in the gang rape and murder case from the 2002 Gujarat riots a “dilution of rule of law”.

Several human rights activists across the country have expressed the same sentiment. They have all felt that the decision to release the convicts by the government smacked of extreme arbitrariness, a creeping nightmarish trend in recent years. Even for the former Chief Justice, N.V. Ramana, had talked about the principle of Rule of Law while delivering the P.D. Desai Memorial Lecture on ‘Rule of Law’. (See Box-2 for details). The question that comes to our mind now is that: Are we living in the same colonial era?’ Is ‘Rule by Law’ still being confounded with ‘Rule of Law’?

In a society riddled with gross inequality and injustice, such as in India, 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 directed 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 story starts from the International Commission of Jurists (ICJ) which 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 ignored the human rights violations of the US while criticising human rights violations of the Soviet Union selectively, raised doubts about its declarations about the state being bound by law and its impartiality.

The ICJ is not alone in pointing to these deceptive attributes attached to the Rule of Law in the hands of an authoritarian government. 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.

Let me go back a bit further. In the early part of the 17^th century, when King James I claimed absolute power citing the principle of the ‘divine right of kings’. In the face of the rising mercantile and industrial interests which wanted supreme power in their hands, he asserted that sovereignty is vested in the king. 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’ was established, and is 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 of Law’ and the accompanying concepts of ”good government “ and ”defence of civil liberties”.

In this entire struggle, what became clear was that that there was 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. Supreme power was always in the hands of these two ruling classes but never in the hands of people. By the end of the 18^th 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 power.

The present Constitution of India clearly reposes sovereignty power in the hands of the President who will act on the advice of the Council of Ministers and will swear 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.

Modern day 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. But these have remained either work-in-progress or pretty words.

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.

But unfortunately, sovereignty is firmly in the hands of the executive in the present system of representative democracy. The legislature has become the conduit and the legitimising body for this executive. The less said about the judiciary, the better.

Given these facts, is ‘dilution of Rule of Law’ the issue or should we demand for mechanisms which can prevent the arbitrary exercise of power by the executive.