LEGAL EVOLUTION: THE RULE OF LAW IN HISTORICAL CONTEXT AND CONTEMPORARY PRACTICE BY - DEBANJAN CHATTOPADHYAY & PURBALI SENGUPTA
LEGAL EVOLUTION: THE RULE OF LAW IN HISTORICAL CONTEXT AND
CONTEMPORARY PRACTICE
AUTHORED BY - DEBANJAN CHATTOPADHYAY
& PURBALI SENGUPTA
Abstract
The rule of law is a
foundational principle ensuring that all individuals and institutions are
accountable to laws that are publicly promulgated, equally enforced, and
independently adjudicated. This research explores the evolution,
implementation, and challenges of the rule of law globally, with a particular
focus on India.
Globally, the rule of
law is a cornerstone of democratic governance and human rights. Its
implementation varies widely, influenced by historical, cultural, and
socio-political factors. In developed nations, strong legal frameworks,
independent judiciaries, and robust enforcement mechanisms typically
characterize adherence to the rule of law. Conversely, developing countries
often grapple with corruption, weak institutions, and inadequate legal
frameworks, hindering effective implementation. India presents a unique case
study due to its complex legal history and socio-economic diversity. The Indian
Constitution enshrines the rule of law, with an independent judiciary and
comprehensive legal codes. However, India faces significant challenges such as
judicial backlog, corruption, and disparities in access to justice. Recent
reforms and judicial activism have aimed at strengthening the rule of law, yet
issues persist.
This research employs
a comparative analysis, examining case studies from various countries to
highlight best practices and pitfalls. It also analyses data from global
indices on rule of law, such as the World Justice Project, to assess India's
position relative to other nations. Through this comprehensive examination, the
research aims to provide insights into enhancing the rule of law in India and
other developing nations, emphasizing the need for judicial reforms,
anti-corruption measures, and greater legal awareness among citizens.
I.
HISTORY OF RULE OF LAW
Rule of law is the law,
which is publicly promulgated, enforced and is independently adjudicated where
everyone i.e., the individuals, institutions and the government are subject to
the law. It ensures that justice is provided to the individuals and is done in
such a manner that laws are transparent, just and are uniformly applied.
Further, it ensures that the legal processes are just and fair, provides
justice to the people and no one is above the law which means law Supreme. This
is essential for democracy and functioning of the society.
It can be further
understood by an example, when a driver, regardless of his occupation, caste,
status receives a ticket from the traffic police officer for speeding up his
vehicle. After, issuing such a ticket, the driver has the right to go to the
court and contest it. This process is applicable for everyone which ensures
that the law is equal and applied fairly. It can also be understood by another
example, where a government official is accused of embezzling public funds.
Despite the accused person is having a powerful position, the case will be
investigated and is to be tried in a court of law where the process needs to be
followed. The trail which is to be conducted is transparent where there is no
biasness. During the trial, if the accused person is found guilty, then he
shall be sentenced according to the law, just like any other ordinary citizen
would be subjected to. Hence, no one is superior to the law and legal
principles are consistently and impartially enforced.
A. Historical background behind rule of law
The history of Rule of
Law originated from the ancient civilizations. The Code of Hamurabi i.e., c.
1754 BCE, is one of the oldest written legal codes which was established in
Babylon. It set out laws and corresponding punishments, emphasizes the idea
that the king is not above law. The Rule of Law also has its origin from its
ancient Egypt and Greece. Greek philosophers like Plato and Aristotle developed
the notion of the Rule of Law. For instance, Aristotle distinguished between
the Rule of Law and Rule of Men arguing that laws should govern.
In the medieval period,
in England, the Magna Carta established the principle that the King was subject
to the law and not above it. It was signed by the King John of England in 1215.
It further introduced ideas like due process and habeas corpus, which became
fundamental to the development of the Rule of Law. It is the cornerstone in the
history of the Rule of Law. It laid the foundation for modern constitutional
and legal systems that emphasizes the protection of individual rights and the
limitation of governmental power.
In the Early Modern period, philosophers
like John Locke and Montesquieu expanded on the idea, advocating for the
separation of powers and checks and balances to prevent tyranny.
Locke’s idea on natural rights and
Montesquieu’s on the separation of power deeply influenced modern democratic
thought.
B. Rule of law in ancient India
The Rule of Law begins
with the ancient Hindu and Buddhist legal traditions through Islamic law and
further evolves during the British Colonial Rule before reaching in the Modern
legal framework. It reflects that the country’s socio-political and cultural
evolution. In the ancient India, the concept of dharma was central to the legal
and moral code. The Vedas are the oldest sacred texts of Hinduism which laid
the foundations for social and legal order. Whereas Dharmashastras and
Manusmriti talked about the duties, rights and laws prescribed governing
personal and social conduct. The King was considered the upholder of Dharma.
His duty was to ensure justice and protect his subjects. He was guided by the
principles of Dharma and was advised by the Brahmins. Later, in the Mauryan
Empire between 322 BCE – 185 BCE, Arthashastra came into picture which was
written by Kautilya (Chanakya). It emphasized the importance of a legal
framework for the governance and justice to the people. He advocated for a
strong centralized administration where the king was advised by a council of
ministers.
In the Medieval period,
the Gupta Period is referred to as the Golden Age of Law where the
administration of law was sophisticated and well-structured. The Hindu legal
traditions flourished, and the Kind continued to be the protector of Dharma.
Furthermore, the advent of Islamic rule brought significant changes. The Sharia
or the Islamic Law was introduced with the existing local laws. This judicial
system was a blend of Islamic jurisprudence and the local customs. Further
during this period, the Ain-i-Akbari compiled by Abu’l-Fazl under Akbar,
documented administrative practices, legal procedures, and the role of justice
in governance. Akbar’s policy aimed at ensuring justice and harmony among his
diverse subjects.
In the colonial period,
initially, the British East India Company allowed local customs and laws to
prevail but gradually it introduced English common law principles. The company
courts operated alongside indigenous legal systems. The Regulating Act of 1773
marked the beginning of the legal administration in British India, establishing
a Supreme Court in Calcutta and laying the foundation for the British legal
system in India. Later, the Pitt’s India Act of 1784 strengthened the
regulatory framework and oversight of the East India Company’s administration.
The British undertook expensive legal codifications which established
comprehensive codes for criminal, civil, and procedural law. Some of those
were: - Indian Penal Code, 1860 which was drafted by Lord Macaulay, this act
standardized the criminal law across British India. Secondly, Indian Contract
Act, 1872 which provided a framework for contracts and obligations. Thirdly,
Indian Evidence Act, 1872 which standardized the law of evidence. Fourthly,
Transfer of Property Act, 1882 which regulated property transactions. Fifthly,
High Courts Act, 1861, this act was established for the High Courts in Bombay,
Calcutta and Madras which became the highest courts of appeal and played a
crucial role in shaping the legal landscape. Lastly, Indian Councils Act, 1892
and 1909, both the acts introduced reforms that allowed for greater Indian
participation in legislative councils, laying the groundwork for future
democratic governance.
In the Post –
Independence period, the adoption of Constitution of India, 1950 marked a new
era. The Constitution is the Supreme Law which established India as a
sovereign, socialist, secular and democratic republic. Part III of the
Constitution gives fundamental rights to all the citizens, including the right
to Equality (Article 14), the right to freedom (Article 19), the right to life
and personal liberty (Article 21). These rights can be enforced by the courts
for ensuring protection against arbitrariness. Furthermore, the Part IV of the
Constitution outlines the Directive Principles of State Policy which aims to
create social and economic for a just society.
II.
JURISTS VIEW IN RULE OF LAW
A. Aristotle
Aristotle's concept of
the rule of law, as explored through various research papers, remains a
significant foundation in the study of political philosophy and jurisprudence.
Aristotle's idea that laws, rather than individuals, should govern is a
fundamental aspect of his political theory. He argues that “it is more proper
that law should govern than any one of the citizens.”[1] According to Aristotle, laws are expressions
of reason and common agreement, superior to the whims of individual rulers.
This principle is fundamental for ensuring stability, predictability, and
fairness in governance[2]. Aristotle’s division of justice into
distributive and corrective forms highlights the role of law in ensuring
fairness. Distributive justice pertains to the fair allocation of resources,
while corrective justice addresses the rectification of wrongs. Research
indicates that the rule of law is crucial for both types of justice, as it
provides consistent standards for adjudication and resource distribution.
Without established laws, justice becomes arbitrary and inconsistent[3]. Central to Aristotle’s advocacy for the rule
of law is his belief in the supremacy of reason. Laws represent rational
deliberation aimed at the common good, unlike individual rulers who might be
swayed by personal biases. Research supports this view, suggesting that legal
systems rooted in rational principles are more effective in achieving justice
and stability.
Aristotle’s concept
related to mixed government and the rule of law. Aristotle did not endorse a
single form of government but favoured a mixed system combining elements of
monarchy, aristocracy, and democracy. He believed that such a system would
balance the strengths and weaknesses of each form[4] .
For this mixed government to function well, it must operate under the rule of
law. This prevents the concentration of power and ensures accountability,
reducing the risk of tyranny. According to Aristotle, the ultimate aim of rule
of law is to promote the common good. Laws should be designed to benefit the
entire community rather than specific individuals or groups[5]. This aligns with Aristotle’s teleological
approach, where the purpose of the state and its laws is to create conditions
conducive to human flourishing (eudaimonia). Research highlights that laws
which aim at the common good contribute to societal stability and individual
well-being. He also emphasized the role of education and the cultivation of
virtue in upholding the rule of law. He believed that laws alone are
insufficient; citizens must also be virtuous and well-educated[6]. Despite the foundational nature of
Aristotle’s ideas, they have limitations and have faced criticism. One
significant limitation is his acceptance of hierarchical structures, such as
slavery and the subordination of women, which conflict with modern notions of
justice and equality[7] .
Critics argue that his vision of the rule of law is constrained by his cultural
and historical context, limiting its applicability to contemporary democratic
societies. Aristotle’s ideas on the rule of law have profoundly influenced
modern democratic theory. The principle that laws should govern a state rather
than individuals is a cornerstone of contemporary democratic systems[8]. Modern interpretations of the rule of law
emphasize equality before the law, the protection of individual rights, and the
accountability of government officials, which resonate with Aristotle’s
principles, albeit in a more inclusive manner.
Hence, it can be said
that his theory underscores the importance of governance based on rational laws
aimed at the common good, rather than arbitrary rule by individuals. While his
views were shaped, the fundamental principles he articulated continue to
resonate in modern discussions about justice, governance, and the role of law
in society. The rule of law, as Aristotle envisioned it, remains a critical
element of any just and stable political system, ensuring that power is
exercised in a fair and predictable manner, ultimately promoting the well-being
and flourishing of all citizens.
B. Montesquieu
Montesquieu, a prominent
Enlightenment thinker, is best known for his work The Spirit of the Laws, in
which he discusses the rule of law extensively. His ideas have significantly
influenced modern political thought, particularly the development of
constitutional law and the principle of separation of powers. Montesquieu's
rule of law is predicated on the idea that laws should be supreme over the
actions of individuals, including rulers. He argued that "law in general
is human reason" and that the laws must be appropriate to the people for
whom they are framed, reflecting their customs, climate, and circumstances[9]. This principle ensures that laws are not
arbitrary but grounded in reason and tailored to societal needs.
One of Montesquieu's most
influential contributions is the doctrine of the separation of powers, which he
believed was essential for preserving liberty and ensuring the rule of law.
Montesquieu asserted that government should be divided into three branches:
legislative, executive, and judicial, each with distinct functions and checks
on the others. This framework prevents any single entity from gaining absolute
power, thereby safeguarding individual freedoms and promoting justice[10]. According to scholars, this division helps
prevent tyranny and abuse of power, as it creates a system of checks and
balances. Furthermore, the separation of powers encourages a more equitable
distribution of authority, ensuring that laws are enforced fairly and
impartially. Montesquieu believed that the rule of law should aim at the common
good, and laws must reflect the general will of the people. He argued that laws
should be designed to promote public welfare and should be consistent with the
principles of justice and equality. This idea resonates with the concept of
legal positivism, which asserts that the legitimacy of laws derives from their
alignment with societal values and norms.
Studies indicate that when laws are perceived as just and equitable,
there is greater compliance and less need for coercive enforcement[11]. This underscores Montesquieu’s argument that
the rule of law should be based on principles that resonate with the populace
and promote their collective well-being.
Montesquieu also
emphasized the influence of climate and geography on the nature of laws. He
posited that different regions require different legal frameworks because the
social and environmental conditions vary significantly[12]. This view reflects a pragmatic approach to
lawmaking, acknowledging that one-size-fits-all solutions are often
ineffective.
Contemporary research
supports this perspective, highlighting how environmental factors shape legal
systems and governance structures. Studies have found that regions with diverse
climatic and geographic conditions often develop distinct legal traditions that
address their unique challenges[13]. This aligns with Montesquieu's assertion that
effective laws must consider the specific circumstances of the people they
govern.
Montesquieu further
believed that the rule of law is essential for ensuring both freedom and
security. He argued that laws should protect individuals from arbitrary rule
and provide a framework within which freedom can flourish. This balance between
freedom and security is crucial for a stable and just society. Legal scholars
argue that laws must protect individual rights while also ensuring public
safety and order. When laws achieve this balance, they enhance public trust and
cooperation, fostering a more cohesive and resilient society. While Montesquieu's
ideas have been highly influential, they are not without criticism. Some
scholars argue that his views on the influence of climate and geography are
overly deterministic and can lead to cultural stereotyping[14]. Additionally, his emphasis on the separation
of powers has been critiqued for potentially leading to gridlock and
inefficiency in government. However, these criticisms do not diminish the
significance of Montesquieu's contributions to the concept of the rule of law.
Instead, they highlight the need for a nuanced and context-specific application
of his principles.
Montesquieu's ideas about
the rule of law continue to influence modern legal and political systems. The
principle of separation of powers is a cornerstone of many democratic constitutions,
ensuring that power is distributed and that government actions are subject to
legal constraints[15]. Moreover, the emphasis on laws reflecting the
common good and being tailored to specific societal conditions remains relevant
in contemporary legal discourse.
C. Dicey
A.V. Dicey, a prominent
British constitutional theorist, is best known for his work on the rule of law
as articulated in Introduction to the Study of the Law of the Constitution.
Dicey’s conceptualization of the rule of law has had a lasting impact on legal
and political thought, particularly in the context of constitutional law and
the development of democratic governance. Dicey’s rule of law is based on three
fundamental principles: the supremacy of law, the equality of all before the
law, and the protection of individual liberties. Dicey argued that no one is
above the law, and the law must apply equally to all individuals, including
government officials. This view emphasizes that the law should govern a nation,
not arbitrary decisions by rulers[16].
Dicey’s principle of the
supremacy of law means that the constitution is not an arbitrary or unilateral
expression of power but is grounded in law that is applicable and enforceable.
This contrasts with the concept of a constitution that might be subject to
changes by political decisions or executive orders.
Dicey’s view on the
supremacy of law posits that all actions by government officials must be based
on legal authority, and any action taken without legal backing is considered
ultra vires and thus unlawful. This perspective ensures that the government
operates within the confines of established laws and cannot act beyond its
legal powers[17]. Research on Dicey’s theory highlights its
importance in maintaining legal order and accountability. For instance, studies
show that the supremacy of law is crucial for preventing abuses of power and
ensuring that government actions are justified and transparent. Furthermore,
this principle is integral to the concept of judicial review, where courts have
the authority to review and nullify unlawful government actions[18].
Dicey also emphasized the
principle of equality before the law, which asserts that all individuals,
regardless of their status or position, should be treated equally by the legal
system. This principle is fundamental to the rule of law, as it ensures that
justice is administered impartially and without bias. Studies demonstrate that
equal application of the law helps in maintaining social stability and
promoting justice[19]. Moreover, equality before the law serves as a
check against discriminatory practices and helps uphold fundamental human
rights.
The protection of
individual liberties is a central tenet of Dicey’s rule of law. Dicey argued
that the law should safeguard individual freedoms and rights from arbitrary
interference by the state[20]. This protection is achieved through the
enforcement of legal norms that uphold civil liberties and ensure that any
limitations on individual freedoms are justified and proportionate.
While Dicey’s rule of law
has been highly influential, it has also faced criticism. Some scholars argue
that Dicey’s conception of the rule of law is too rigid and does not adequately
account for the complexities of modern governance. For example, Dicey’s focus
on the formal aspects of legality may overlook the substantive requirements of
justice and equity in contemporary legal systems[21]. Moreover, Dicey’s rule of law has been
critiqued for its limited consideration of the role of international law and
human rights norms in shaping domestic legal systems. In an increasingly
globalized world, the integration of international legal standards and human
rights considerations has become more prominent in discussions about the rule
of law.
Despite these criticisms,
Dicey’s rule of law remains a foundational concept in legal and political
theory. His emphasis on the supremacy of law, equality before the law, and
protection of individual liberties continues to inform contemporary discussions
about constitutionalism and democratic governance[22]. Modern legal systems often incorporate
Dicey’s principles while also adapting to new challenges and incorporating
international legal norms.
For example, contemporary
legal systems may integrate human rights protections and international legal
standards into their frameworks, reflecting an evolution of Dicey’s principles
in response to global developments. Additionally, the principle of judicial
review remains a key feature of democratic governance, ensuring that government
actions comply with established legal norms.
III.
REVISUALISING RULE OF LAW IN THE
CONTEMPORARY WORLD
After the treaty of Westphalia
was successful to stop the thirty years of war in 1648, it is said that an
international structure composed of a hierarchy of emperor, kings, princes, and
cities was dramatically replaced with one composed of many formally independent
and formally equal states. The nation state was established as a solution the
chaos that had followed the breakup of the medieval order when religious and
trade schemes had overflowed across traditional boundaries and submerged them.
Although the then nation states were highly authoritarian and their theoretical
champion writers like Jean Bodin, Jean Jacques Burlamaqui, Thomas Hobbes
applauded and justified them for that particular specified reason. They also
stated that “Life was poor, nasty, brutish and short” due to civil war,
banditry or religious zealotry, at that particular span of time a rational man
would not think twice to submit without complaint to a government strong enough
to keep the peace by whatever means necessary.
Now in the contemporary
era, the principles and practices behind the scenes of the operations of the
rule of law are reasonably well digestible in national legal systems having a
jurisdictionally defined, democratic and constitutional foundation. But their perfectness
tends to fracture in the fragmentation, fluidity and consistency of global
inter interrelationships. To define new and appropriate meaning to an ‘international
rule of law’, therefore, requires that we reconsider and reapply its principal
ethical and institutional underpinnings in this new context. Given the polycentric
nature of the global political, economic and legal order, it is not an easy
task. Yet it is one that needs urgently to be undertaken. In its landmark
report, the United Nations Commission on Global Governance stated the
importance of considering the rule of law in the international arena in the
strongest terms:
“The rule of law has been
a critical civilising influence in every free society. It distinguishes a
democratic from a tyrannical society; it secures liberty and justice against
repression; it elevates equality above dominion; it empowers the weak against
the unjust claims of the strong. Its restraints, no less than the moral precepts
it asserts, are essential to the well-being of society, both collectively and
to individuals within it. Respect for the rule of law is thus a basic
neighbourhood value. And one that is certainly needed in the emerging global
neighbourhood.”[23]
This statement puts its
light into the idea of the rule of law, ideas of justice and fairness that some
thinkers may with some legitimacy claims do not belong there.[24] However,
it emphasizes the critical significance of translating both the rationale and
value of the doctrine to the global arena. While there are, and always will be,
different opinions regarding the content of the core values behind the idea of
the rule of law, in the international arena.
A.
Rule of Law in the eyes of Tom Bingham
Bingham identified the
core of the existing principle of the rule of law by stating that “all persons
and authorities within the state, whether public or private, should be bound by
and entitled to the benefit of laws publicly made, taking effect (generally) in
the future and publicly administered in the courts.” After that he acknowledged
that this principle, so stated, was not comprehensive and not universally applicable.
Thereafter Bingham gave us eight principles of the rule of law but there is
nothing magical about it. He also left space for other thinkers to come up and
serve their own principles in this particular subject matter. But besides this
he also mentioned that, he thinks, it is necessary to go behind the very general
principle he has stated to try and identify what the rule of law really means
to us, here and now.[25]
Bingham talked about the
accessibility of law, in his opinion in order to establish a so called proper
rule of law in a greater or broader point of view to make it a successful rule
of law, the laws must be accessible by the citizens of the states in order to
maintain the rule of law the citizens
have to know that what they are not to or what they are entitled to by the laws
of the state otherwise they cannot claim their rights and perform their obligation.
Also, he mentioned that for the successful conduct of trade, investment and
business it needed to be operated by a body of accessible legal rules governing
commercial rights and obligations. To do a business where a man involves large sums
of his hard-earned money, it is necessary that the country’s rights and
obligations are not vague. This was elaborated in more detail by Lord
Mansfield, who is generally regarded as the father of English commercial law,
around 250 years ago when he said: ‘The daily negotiations and property of
merchants ought not to depend upon subtleties and niceties; but upon rules
easily learned and easily retained, because they are the dictates of common
sense, drawn from the truth of the case.” In the same vein he said: “In all
mercantile transactions the great object should be certainty: and therefore, it
is of more consequence that a rule should be certain, than whether the rule is
established one way or the other. Because speculators [meaning investors and businessmen]
then know what ground to go upon.”[26]
a) The clash between Fuller, Joseph Raz
and Tom Bingham regarding the aspects of “Rule of Law”
It is generally accepted
that Lon Fuller’s 8 principles[27]
or the set requirements to be considered as Rule of Law gets the hold of the
true essence of the “Rule of Law”. Some of the great thinkers like Sir Joseph
Raz[28],
had supported this formal aspect promulgated by Lon Fuller but some people were
also against the notion, in between them who are of a different point of view
than Lon Fuller one special candidate was Sir Thomas Bingham. Before getting
into such an interesting conversation let’s see the 8 excellences set by Lon
Fuller which a Law of the state must have in order to be considered as “Rule of
Law”, the 8 excellences of law namely: -
i.
Generality
ii.
Publicity
iii.
Prospectivity
iv.
Intelligibility
v.
Consistency
vi.
Practicability
vii.
Stability
viii.
Congruence
i.
Generality – Fuller
stated that Laws must be general for all the citizens of that particular state
having an established “Rule of Law”. By this Fuller wanted to direct that
specified rules shall be there for prohibiting or permitting certain kinds of
behaviours.
ii.
Publicity -
Fuller mentioned that if it is a properly established Rule of Law then the laws
of the state must be accessible by the people of that particular state.
iii.
Prospectivity
– By this criterion Fuller wanted to focus on “how individuals ought to behave
in the future rather than prohibiting behaviour that occurred in the past.
iv.
Intelligibility
– Intelligibility states about the Clarity of law, that laws shall not be
ambiguous and easily understandable by the normal citizens.
v.
Consistency –
Fuller established that laws must be consistent to each other rather than
contradicting each other. Laws shall be non-contradictory.
vi.
Practicability
– Generally Practicability is what makes sense, so basically Fuller meant that
the laws must be sensible, and it must not ask the impossible.
vii.
Stability – By this particular criterion Fuller wanted to direct that
laws shall not change frequently, and the demands laws make on the citizens
should remain relatively constant.
viii.
Congruence – “Congruence requires Lawmakers to pass only laws that will
be enforced and require officials to enforce no more than is required by the
laws. Judges should not interpret statutes based on their personal preferences
and police should only arrest individuals they believe to have acted
illegally.”[29]
After discussing these
specific themes produced by Lon Fuller, Sir Joseph Raz has supported him in
order to discussing the true essence of “Rule of Law”, In support of Lon Fuller
if we quote him, he stated that –
“Lon Fuller' has claimed
that the principles of the rule of law which he enumerated are essential for
the existence of law. This claim if true is crucial to our understanding not
only of the rule of law but also of the relation of law and morality. I have
been treating the rule of law as an ideal, as a standard to which the law ought
to conform but which it can and sometimes does violate most radically and
systematically. Fuller, while allowing that deviations from the ideal of the
rule of law can occur, denies that they can be radical or total. A legal system
must of necessity conform to the rule of law to a certain degree, he claims.
From this claim he concludes that there is an essential link between law and
morality. Law is necessarily moral, at least in some respects.”[30]
But this support and the
entire theme discussed by Lon Fuller and Joseph Raz was challenged by Sir
Thomas Bingham by introducing a whole new aspect of the “Rule of Law” which is
the substantive aspect of the “Rule of Law”. Bingham came with direct
contradiction with the thinkings of Lon Fuller and Joseph Raz. Bingham
criticized Sir Joseph’s approach to the rule of law, Bingham pointed out that,
a “Rule of Law” is not truly a “Rule of Law” until it includes the substantive
aspect in it. Basically, by the substantive aspect Bingham meant mainly the
human rights of the citizens of the state. In his opinion the inclusion of the
substantive aspect in the rule of law brings in its true essence. While
criticizing Sir Lon Fuller and Sir Joseph Raz’s approach to describe rule of
law, Bingham gave the example of the apartheid government of South Africa. The Apartheid
Government can be defined in the way of ‘racial segregation’, this particular
abusive and discriminatory legislation was sanctioned by law and was widely
practiced in South Africa before 1948. But when the national party, led by
Daniel F. Malan gained force that year, it extended the policy and gave name
Apartheid often called “separate development” since the 1960s. This apartheid
government had separated all south Africans either as ‘Bantu’ which means all
black Africans and ‘Coloured’ which are of mixed race and ‘whites’. This
government had enacted a legislation named “Group Areas Act 1950” by which
members of other races were barred from living, operating businesses or owning
land in them which led to thousands of coloureds, blacks and Indians being
removed from the areas classified for whit occupation.[31]
By giving this example
Bingham criticized the approach of Sir Joseph Raz and Sir Lon Fuller by stating
the fact that the 8 criterions which were given by Fuller in order to establish
the validity of “Rule od Law” of a
particular state was not totally correct
because the laws made by the Apartheid government of South Africa had all of
this criterions in them but still they
were discriminatory and abusive towards a group of people out there then
Bingham introduced a whole new aspect of “Rule of law” which he named the
substantive aspect which includes certain basic human rights in it. Then
Bingham criticized the laws of the apartheid government of South Africa by
stating –
“The abhorrent laws of
apartheid South Africa were constitutionally impeccable, so indeed were some
off the appalling laws of Hitler’s Germany. We must therefore distinguish
between constitutionality and the rule of law. Constitutionality is a vital
ingredient of rue of law, but not always, nor in every country, definitive of
it.”[32]
Bingham first intervened
constitution through rule of law which is of a great significance. He mentioned
that in modern day social structure if a state does not have the substantive
aspect of rue of law that cannot be considered as a proper rule of law established
state. He meant the rule of law must go by hand in hand with the constitution
of that particular state and should not discriminate or abuse any citizens of
the state and should treat every citizen equally and justifiably. This is how
Bingham established a notion to make the “Rule of Law” to go with the flow of
time in our society, in the human society.
IV.
THE ENLIGHTENMENT OF RULE OF LAW IN INDIA
Andre Beteille who is a
sociologist and a known critical commentator on the theory of “rule of law” has
commented in his populist interpretation and mobilization of democracy that
Indian scholars have not paid enough attention to the demand for following
scrupulously rules and procedures. Beteille is a thinker who gives us the
insights about the constitutionalist approach into democracy. Democracy is
interrelated with the procedural aspects, but our society is more faced towards
“Our society is for life to be regulated by the persons not their rules.”[33]
The view of Iravati Karve that Indian civilisation has been shaped by
principles of accretion (accretion means, there is continuous accumulation of
rules without eliminating the older rules.), “ When we add new rules , we do
not necessarily discard old rules, so that the old rules becomes crowded with
obsolete anachronistic and inconsistent rules. In India the administration by
impersonal rules resists systematization because that demands continuous
elimination of old and anachronistic rule”[34].
On the other hand,
Upendra Baxi appreciated the existing legal infrastructures which creates
hurdle for the realisation of the normative promises made by the Constitution
of India. In his words, “the constitution and the law have generally strong
redistributive thrust”, yet “the orientation of the major institutions of India
Legal system is towards maintenance and even aggravation status quo. The legal
institutions generally decelerate and even prevent the inherent dynamism of the
constitutional aspirants towards just a social order”[35].
In the words of Rajeev Dhavan, “There was never any great dissonance between
Nehru’s developmental plan for the Indian people and the positivist theory of
law that the British had bequeathed to the courts of independent India. The
fact that constituent assembly had scripted a judicially enforceable Bill of
Rights into the text of constitution did not disturb the positive credentials
of the Indian Law. The fundamental rights guaranteed to the citizen of had been
perceived as essentially ‘legal rights’ granted by super statute: each one of
the rights had been hedged in by limitations and was interpreted like any other
statute”[36].
India currently is being
ruled by a coalition of parties which is namely ‘National Democratic Alliance’
and it’s leading democratic party is Bharatiya Janata Party which is highly
enthusiastic about Hindu Fundamentalist forces. The rise of the democracy in
the Indian Political system has led to the demise of one-party dominance system
in India’s political and electoral scenario. The ruling coalition that is NDA (National Democratic Alliance) has
established the constitution review committee
to review the constitution that is mainly made out for looking into “
salient issues in the area of governance and primarily federalism reforms [
pertaining relation between the centre and states which is still characterized
by unfairness with regard to sharing of economic resources and political
power], attainment of political stability for the present and future, union
governments in an era of fractions coalitions.”[37]While
the main job of the constitution review committee is to look into the directive
principles of state policy and may, if needed convert them into the fundamental
rights provided by Indian Constitution , the main fear of the contemporary
Indian society is that , the ruling coalition, if, by any chance does anything for the benefit
of the political agendas and the party system which may hurt the basic
structure if the Indian Constitution.
In the opinion of Upendra
Baxi there is no need of a constitution review committee because constitution
had allowed numerous changes within it through amendments. But while
constitution allows to make changes in it but it does not allow to make a
change ‘of’ it; “changes of constitution are not allowed any scope by the
present Indian constitutionalism which denies legitimacy for its profound sub
version”[38].
The establishment of the
rule of law in India is a profound testament to the country’s commitment to
democratic governance and legal integrity. This principle, fundamental to
democratic societies, signifies that all individuals and institutions are
subject to and accountable under the law that is fairly applied and enforced.
This essay outlines the development and establishment of the rule of law in
India, highlighting historical contexts, constitutional provisions, judicial
interpretations, legislative and executive roles, and the challenges faced.
A. Historical Context
The rule of law was
introduced in India during the British colonial era, albeit within a framework
that was often skewed towards colonial interests. The British Raj implemented
various legal reforms, such as the Indian Penal Code of 1860 and the Civil
Procedure Code of 1908, which laid the groundwork for a structured legal system[39].
These laws reflected principles of justice and equality before the law,
although their application was often inconsistent and served colonial
interests.
B.
Post-Independence Framework
With the attainment of
independence in 1947, India embarked on a journey to establish a robust legal
system founded on democratic principles. The Indian Constitution, adopted on
January 26, 1950, was pivotal in embedding the rule of law into the fabric of Indian
governance. The Constitution not only established India as a sovereign,
democratic republic but also entrenched fundamental rights and legal principles
that safeguard justice and equality[40].
C.
Constitutional Provisions
The Constitution of India
enshrines the rule of law through various key provisions:
1. Article 14: This article guarantees
equality before the law and equal protection of the laws. It mandates that no
individual shall be discriminated against by the state based on religion, race,
caste, sex, or place of birth[41].
This provision underscores the principle that the law must apply equally to all
individuals, ensuring fairness and preventing arbitrary actions by the state.
2. Article 21: Article 21 protects the
right to life and personal liberty, stating that no person shall be deprived of
these rights except according to a procedure established by law. This provision
ensures that any deprivation of personal liberty must be in accordance with
legal procedures that are just and fair[42].
3. Article 32: Article 32 provides a
fundamental right to individuals to approach the Supreme Court directly for the
enforcement of their fundamental rights. This article is crucial for
maintaining the rule of law, as it allows citizens to seek judicial redress
against violations of their rights and ensures that the rule of law is upheld
through judicial review[43].
D.
Judicial Interpretation
The judiciary in India,
particularly the Supreme Court and High Courts, has played a pivotal role in
upholding and interpreting the rule of law. Landmark judgments have
significantly shaped the legal landscape:
In the case of “Kesavananda
Bharati v. State of Kerala (1973)” It was established that the "basic
structure doctrine," which holds that certain fundamental features of the
Constitution cannot be altered by amendments. This doctrine reinforces the
inviolability of core constitutional principles, including the rule of law[44].
Similarly, “Maneka
Gandhi v. Union of India (1978)” In this case, the Supreme Court expanded
the interpretation of Article 21 to include the right to a fair procedure. The
court held that any law that deprives an individual of their personal liberty
must not only be just, fair, and reasonable but must also follow due process[45].
These judgments reflect
the judiciary's role in not only interpreting laws but also ensuring that
legislative and executive actions comply with constitutional principles.
E.
Legislative and Executive Roles
In India, both the
legislative and executive branches play crucial roles in upholding the rule of
law:
a) Legislative actions: The Indian Parliament and state
legislatures are responsible for enacting laws that reflect the rule of law.
Laws must be created within the framework of the Constitution and should adhere
to principles of justice and equality. The legislative process includes
mechanisms for scrutiny and debate, ensuring that laws are subjected to
rigorous examination before enactment[46].
b) Executive actions: The executive branch, comprising the President, Prime
Minister, and various administrative agencies, must implement laws in
accordance with the Constitution. The executive is accountable for ensuring
that its actions and policies conform to legal standards. Administrative
decisions are subject to judicial review, ensuring compliance with the rule of
law[47].
F.
Challenges and Reforms
Despite the strong
constitutional and legal framework, India faces several challenges in fully
realizing the rule of law:
a) Judicial delays: The Indian
judicial system often suffers from significant delays in case adjudication,
which undermines timely justice. Reforms are being pursued to streamline
judicial processes and reduce case backlogs[48].
b) Corruption: Corruption within both the executive
and legislative branches poses a threat to the rule of law. Efforts to combat
corruption include legal reforms, anti-corruption agencies, and initiatives
aimed at increasing transparency and accountability[49].
c) Legal aid and access to justice: Access to justice remains uneven,
particularly for marginalized communities. Legal aid services and reforms are
being implemented to enhance access to legal resources and ensure that all
individuals can effectively seek and obtain justice[50].
d) Police reforms: The functioning of the police
force, which is crucial for law enforcement, has been a subject of scrutiny.
Reforms aimed at improving police accountability and effectiveness are
essential for ensuring that law enforcement aligns with the principles of
justice and fairness[51].
V.
CONCLUSION
The establishment of the
rule of law in India represents a fundamental aspect of its democratic
framework. The Indian Constitution provides a robust foundation for legal
principles, while judicial interpretations, legislative actions, and executive
functions play critical roles in upholding these principles. Despite challenges
such as judicial delays and corruption, ongoing reforms aim to strengthen the
rule of law and ensure that justice is accessible and equitable for all
citizens.
[1] Aristotle, Politics, trans.
Benjamin Jowett (Oxford: Clarendon Press, 1885), Book III, Part 16
[3]
Ober, J, 'Law and Political Theory in Classical Athens' in Michael
Gagarin and David Cohen (eds), The Cambridge Companion to Ancient Greek Law
(Cambridge: Cambridge University Press, 2005) 394
[4]
Lane, M S, 'Mixed Government, the Rule of Law, and the Idea of Balance'
in Marguerite Deslauriers and Pierre Destrée (eds), The Cambridge Companion to
Aristotle's Politics (Cambridge: Cambridge University Press, 2013) 228
[5]
Aristotle, Politics, Book III, Part 9
[6]
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(Chapel Hill: University of North Carolina Press, 1998) 78
[7]
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[8]
Finley, M I, Democracy Ancient and Modern (New Brunswick: Rutgers
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[9]
Montesquieu, The Spirit of the Laws (Cambridge University Press, 1989)
10 (Book I, Chapter 3)
[10] M.J.C. Vile, Constitutionalism and
the Separation of Powers (Liberty Fund, 1998) 67
[11]
H.L.A. Hart, The Concept of Law (Clarendon Press, 1994) 88
[12] Tom
R. Tyler, Why People Obey the Law (Princeton University Press, 2006) 112
[13] Montesquieu,
The Spirit of the Laws (Cambridge University Press, 1989) 212 (Book XVIII,
Chapter 11)
[14] Jared Diamond, Guns, Germs, and Steel: The
Fates of Human Societies (W.W. Norton & Company, 1997) 135
[15]
Thomas L. Pangle, Montesquieu’s Philosophy of Liberalism: A Commentary
on The Spirit of the Laws (University of Chicago Press, 1973) 78
[16] Jon Elster, Ulysses Unbound:
Studies in Rationality, Precommitment, and Constraints (Cambridge University
Press, 2000) 93
[17]
A.V. Dicey, Introduction to the Study of the Law of the Constitution
(Liberty Fund, 1982) 202
[19]
M. Elliott, Public Law (Oxford University Press, 2018) 98
[20]
T.R.S. Allan, Law, Liberty, and Justice: The Legal Foundations of
British Constitutionalism (Oxford University Press, 1993) 83
[21]
Dicey, Introduction to the Study of the Law of the Constitution (Liberty
Fund, 1982) 176
[22]
S. Unger, The Critical Legal Studies Movement (Harvard University Press,
1986) 60
[23] Commission on Global Governance,
Our Global Neighbourhood, Oxford: Oxford University Press, 1995, p.303.
[24] See: Dicey, A.V., An
Introduction to the Study of the Law of the Constitution, 10th edition,
London: MacMillan,1959, chapter4; Raz, J.
‘The Rule of Law and its Virtue’, p.195; Summers, R. ‘A Formal Theory of
the Rule of Law’, Ratio Juris, vol. 6, no. 2, July 1993, p. 127
[25] Tom Bingham “The Rule of Law”
2011, p. 47
[26] Vallejo v Wheeler (1774) 1 Crown
143, 153
[27] Fuller, Lon, Morality of Law,
rev. ed. (New Haven: Yale University Press.1969), p. 39
[28] Joseph Raz “The authority of
law: Essays on law and morality” 1979
[29] Colleen Murphy “Law and
Philosophy” 2005, p.241
[30] Joseph Raz “The Authority of
Law Essays on Law and morality” oxford university press 1979
[31] Britannica: Apartheid Social
Policy
[32] Bingham centre for the rule of
law: Annual Bingham Lecture 2017
[33] Andre Beteille, “Experience of
governance: A sociological View.” In R.K Darr (ed.) Governance and the IAS
(New Delhi Tata McGraw Hill 1999, p.200
[34] . Ibid,228
[35] Baxi (op. clt., 1982), p. 30.
[36] Dhavan (op. clt.,2000) p. 32.
[37] Upendra Baxi, “Kar seva of
Indian Constitution? Reflections on proposals for review of the Indian
Constitution.” Economic and
political weekly March 11, 2000, p.892
[38] Ibid, p. 891
[39] . Maitra, S. (2005). "The
Impact of British Rule on Indian Legal System." Economic and Political
Weekly, 40(1), 1-10.
[40] Constitution of India, 1950.
[41] Article 14, Constitution of India.
[42] Article 21, Constitution of India
[43]Article 32, Constitution of India.
[44] Kesavananda Bharati v. State of
Kerala (1973) 4 SCC 225.
[45] Maneka Gandhi v. Union of India
(1978) 1 SCC 248.
[46] Rajagopal, S. (2017). "The
Role of the Legislature and Executive in Upholding the Rule of Law in
India." Journal of Indian Law and Society, 8(1), 45-67.
[47] Ghosh, R. (2020). "Challenges
and Reforms in the Indian Legal System." International Journal of Law,
15(2), 85-101.
[48] Law Commission of India Reports on
judicial reforms.
[49] Central Vigilance Commission
Reports on anti-corruption.
[50] National Legal Services Authority
Reports on legal aid.