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What Does 'Rule Of Law' Really Mean In India?

04/12/2015 10:05 AM IST | Updated 15/07/2016 8:25 AM IST
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India is ambitious and this can be substantiated by the foreign policy of the country. There are efforts to attract investments in India by showcasing brand India (Digital India, Invest India etc) and the potential the country possesses. It is also a fact that the state governments are also focusing on ease of doing business, targeting foreign and domestic investments on a major scale. The state of Uttar Pradesh for example, is pitched as "Ummidon ka Pradesh" (land of hope). Expectations are at an all time high but the real question is whether India is prepared and whether internal factors in the country are supporting or hampering these efforts. What also needs to be addressed is whether there is a need for a holistic approach rather than merely easing out regulations.

For the past many weeks, the focus of media has been the incident that took place in Dadri, Uttar Pradesh (Ummidon ka Pradesh) which is just 40km from the national capital. A Muslim man was lynched to death and his family attacked because of (false) rumours that they had stored beef in their house. Adding to the misery of victim's family, the police investigation took an appalling turn when they initially prioritised conducting a forensic examination of the meat rather than investigating the criminal act. Again, is this an isolated incident?

[T]he principle of Rule of Law is embedded in India but sadly the term is often used (and overused) in rhetoric and political arguments.

Other states like Karnataka, Haryana, Maharashtra, Gujarat are all in the race for investments. Here, Karnataka recently witnessed an incident where religious intolerance led to the murder of a former university professor; Haryana has khap panchayats running parallel courts; Maharashtra is trying to drive away migrant labours, Gujarat is affected by a Patel agitation whose leader declared that killing police personnel was a better alternative than suicide. Another example is Delhi police (under the central government) giving a declaration before the High Court that deploying more police personnel in the state is a costly affair and that they are observing austerity. This is the same state which is also called India's rape capital based on the National Crime Records Bureau data.

With this background let us examine the position of India in the ROL (Rule of Law) Index. India was ranked 59th in the ROL Index, 2015, released by the World Justice Project (WLP). A total of 102 countries were reviewed, and Denmark was ranked first and Venezuela was ranked the last. India's immediate neighbours: Nepal, Sri Lanka, Bangladesh and Pakistan were ranked 48, 58, 93 and 98 respectively. But then, what is ROL and how is it relevant to 21st-century India?

The United Nations' Universal Declaration of Human Rights mentions in the Preamble that "human rights should be protected by the rule of law," although this is the only mention of ROL in UDHR. Practitioners of ROL consider it primarily as a measure of democracy. They also look into the institutional aspects that are necessary to operate ROL towards reforms. This would imply ROL as both solution and measure. The United Nations and WLP's ROL indicators are mainly associated with the absence of corruption, open government, fundamental human rights, access to justice and clear regulatory framework.

Rule of Law is a seemingly obvious principle, which would, in a narrow construct, translate to primacy of law, where it embodies the idea of sovereignty of law, obedience to law and judicial independence; thus forming the basis for constitutionalism. There are also contrary views where ROL is seen as a redundant principle, which has lost its relevance. Professor Judith Shklar considered ROL to be a thing of the past as it lost its meaning because of "ideological misuse" and "overuse".

The concept of ROL is not a new phenomenon, and can be traced back to Aristotle, Montesquieu, the Magna Carta, Federalist Papers etc. In his collection Gnomologia, Thomas Fuller (1817), mentions, "Be you never so high, the Law is above you." Lord Denning, later in Goriet v Union of Postal Workers reiterated this maxim, thus highlighting the important position of ROL.

One of the earlier and most influential figures who popularised the principle of ROL was Professor A V Dicey, though his theory has been criticised heavily. Dicey's conception of ROL was based on three views: the reign of regular law, as against arbitrary power; equality before the law; and that the Constitution is a result (defined and enforced by courts) and not a source of individual rights.

The Centre's and state governments' wish to attract foreign investments is directly linked with the necessity to strengthen Rule of Law in the country.

The ambit of ROL has also expanded through the years. An academic inquiry reveals it to be a contentious principle (as noted by Jeremy Waldron) as there are different meanings and usages associated with it in both legal and political philosophy. The definition of ROL itself could mean a number of different things. Professor Joseph Raz puts the concept of ROL within two parameters, i.e., people should obey the law and should be guided by law. The ROL definition is classified into "formal" (thin) definition and "substantive" (thick) definition. The thin definition focuses on procedures for formulating rules, where as the thick definition focuses on protecting rights and thus encompasses democracy, liberty, fundamental/ human rights, governance etc. Though both these definitions are subject to debate, the essence and importance of it is never undermined.

In the Indian context, the term "ROL" is absent in the text of India's Constitution, but again, it is not seen as an abstract concept in this nation. The concept of ROL has received immense attention from the Supreme Court of India in its various judgments. In ADM Jabalpur (1976) the Court declared that the Constitution in itself is ROL and that no one can rise above the Constitutional ROL. The Court had declared (in Arundhati Roy, 2002 and Pratap Singh, 1964, for example) that the Constitution has its foundation in the concept of ROL and that it enshrines and guarantees ROL. In Indira Nehru Gandhi (1975) and subsequent cases, the court even held that ROL is a "basic feature" of Constitution. This would imply that the Constitution and constitutional guarantees are well grounded in the principle of ROL.

One can conclude that the principle of Rule of Law is embedded in India but sadly the term is often used (and overused) in rhetoric and political arguments. Though ROL is kept alive in public discourses, its revival is something that has been generally overlooked. A recap of the news headlines of the past few months in India would show a callous approach to ROL. Disregard and disrespect to law has somewhat become the norm in certain parts of the country. These incidents are not just cause for concern but also reflective of the country's condition.

The seriousness of the issues is apparent when they, along with the country data of India, are placed in contrast with ROL indicators as mentioned above. Here, the minimum requirement is a strong justice system and people having access to it. ROL is directly linked to the stability and progress of a country. ROL helps achieve predictability and certainty in the relations between the government and the people (and between the people) and provides security. It also keeps a check on the arbitrary exercise of power. These are the factors which in turn facilitate economic growth. Therefore, the Centre's and state governments' wish to attract foreign investments is directly linked with the necessity to strengthen ROL in the country.

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