Whither the Rule of Law?

Justice (Retd) Aloysius S. Aguiar Justice (Retd) Aloysius S. Aguiar
19 Sep 2022
Over the last few years ‘Free India’ has been witnessing a decline in the Rule of Law; and one seems to get the impression that we are reliving the dark days of the Emergency when fear of loss of Life, Liberty and property stalked the land.

“Indian democracy is safe as it is governed by the Rule of Law.” The recent statement of the Chief Justice of India, U.U. Lalit, who has a rather short tenure as the CJI, coming soon after his Bench’s order granting Interim Bail to the Human Rights Activist, Teesta Setalvad, and hauling up the Delhi High Court for the delay in taking up the hearing of her Bail Application, is reassuring.

The alacrity, however, with which Teesta was arrested by the Anti-Terrorist Squad (ATS) without following due process and thrown into prison immediately after the same Supreme Court, albeit a different Bench, made some damning ‘Observations’ about Teesta’s involvement in forgery and criminal conspiracy pertaining to the 2002 Gujarat riots; and the deliberate delay in having her Bail Application heard, resulting in her unjustified incarceration for over two months, is disconcerting.

The Chief Justice’s Bench hearing Teesta’s Bail Application pertinently noted that the police complaint against Setalvad did not cite anything more than what the Supreme Court Bench said in their verdict in the Zakia Jafri case. Teesta’s arrest and incarceration for over two months without the due process of law is one among several other glaring instances of unlawful detention causing the citizenry to raise serious concerns about the existence of the Rule of Law in the Country.

The concept of the Rule of Law has evolved over the centuries and can trace its origins to the Magna Carta, or the Great Charter that was extracted by the Barons from King John of England at Runnymede, a meadow by the river Thames, near Windsor, on 15th June 1215. It was to make peace between the unpopular King and a group of rebel barons. Among other rights conceded by the king, the Charter promised protection of the barons from illegal imprisonment and access to swift justice.

The Great Charter of Liberties or the Magna Carta Liberatum was the first and most enduring Statement of Rights of ‘Freeborn Englishmen’. The Charter is revered for its protection against arbitrary imprisonment and seizure of property without due process of law. It established the Principle that everyone is subject to the Law, even the King, and guarantees the rights of individuals, the right to Justice and the right to a fair trial. The Magna Carta established the Rule of law.

By declaring the Sovereign to be subject to the Rule of Law and documenting the liberties held by ‘Freemen’, the Magna Carta provided the foundation of individual rights in Anglo-American jurisprudence. Thomas Jefferson in his Declaration of the American Independence 1776, declared: “We hold these truths to be self evident: that all men are treated equal; that they are endowed by the Creator with certain inalienable rights; that among these are Life, Liberty and the pursuit of happiness.”

Ten years after the Declaration of the American Independence, the French Revolution echoed Thomas Jefferson with its cry of ‘Liberty, Equality and Fraternity.

On 26th November 1949, We the People of India gave ourselves a Constitution making India a Sovereign Democratic Republic; and on that day Dr. Ambedkar, one of the main Architects of the Constitution, reverberated the words of Thomas Jefferson’s Declaration of the American Independence, 1776.

Free India had, by and large, enjoyed the Liberties and Freedoms that freemen enjoyed under the Magna  Carta till these Rights came to be severely curtailed during the ‘Emergency’ declared by then Prime Minister Indira Gandhi. 

The Proclamation of the Emergency was issued under Article 352 (1) of the Constitution on the ground that the security of the State was threatened by ‘internal disturbances’. As a consequence, the basic freedoms guaranteed by Article 19, including freedom of expression and freedom of the Press, got suspended under Article 358.

On 27th June 1975, a Presidential Order was issued under Article 359 suspending the right to move any Court for the enforcement of the Fundamental Rights under Articles 14, 21 and 22 of the Constitution. 

By the Constitution (38th Amendment) Act 1975 and the Constitution (42nd Amendment) Act 1976, the powers of the Judiciary were severely curtailed. Judicial Review was sought to be excluded in various ways, such as Declaration of Emergency and President’s Rule in the States and transfer of ‘inconvenient’ Judges from one State to another. In effect the Rule of Law stood suspended.

Sadly, even the Supreme Court gave legitimacy to the emergency powers assumed by the Government by its judgment in ADM Jabalpur holding “during an emergency, an Order of Detention, even if proved to have been passed ‘malafide,’ could not be challenged in a Court”.

In some subsequent judgments too, the Supreme Court held ‘even the conditions of detention, howsoever inhuman, irrational and without authority of Law, cannot be redressed by the Courts’.

Justice H.R. Khanna delivering the lone dissenting judgment in ADM Jabalpur encapsulated the essence of the Rule of Law, holding “the Rule of law is the antithesis of arbitrariness. The Rule of Law is the accepted norm in all civilised societies. Everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of Individual Liberty and Public Order.”

It was only after a new government was installed at the Centre that the Constitution (44th Amendment) Act 1978 came to be passed neutralizing the effect of the controversial decisions of the Emergency period. By the 44th Amendment Act, Article 21 which guarantees the Right to Life and Personal Liberty was made not liable to suspension, even in an Emergency. The Rule of Law was thus restored.

The Rule of law is not an abstract rule existing in a vacuum; its existence must be seen in the context of the social, civil, political, economic and even religious milieu in which we live.  The efficacy of the Rule of Law therefore inevitably gets tested when basic human rights are violated; when such rights are threatened and trampled upon by the powers that be; and by persons in dominant positions interested only in protecting their powers, and the structures of an unjust society in which they thrive.

There is a fundamental difference between the Law and the Rule of Law. While the Law which includes constitutionally guaranteed Rights prevails in normal times; it may be suspended in times of National disturbances. But the Rule of Law must prevail notwithstanding the emergent circumstances.  That is because the Law is not perfect; and it is only the Rule of Law exercised by an independent Judiciary that can ensure Justice to an Individual against the excesses of State Action.

Over the last few years ‘Free India’ has been witnessing a decline in the Rule of Law; and one seems to get the impression that we are reliving the dark days of the Emergency when fear of loss of Life, Liberty and property stalked the land. Several persons have been thrown into prison and kept incarcerated for years without trial on the specious plea of danger to the security of the State, their only crime. 

On the other hand, we find no action or very little action taken against the perpetrators of heinous crimes and other egregious acts affecting the basic human rights of their less fortunate brethren. The mob lynching of those suspected of dealing in cow meat and the call for genocide of a minority community by the leaders of the Dharam Sansad, are glaring examples of the law being administered with an uneven hand.

This becomes abundantly clear from the recent release from prison, on remittance of sentence, of the eleven persons convicted of the most heinous of human rights offences in the Bilkis Bano case. The Government has justified its action as having followed the due process of law as required under the relevant provisions of the Code of Criminal Procedure. 

The veneer of legality sought to be given to the process of remission of sentence to the eleven convicts, cannot blind one to the irony that the violators of basic human rights of others and perpetrators of the most heinous of crimes have been granted protection of their ‘Human Rights’ and set free by the law. Would it be surprising, therefore, if right thinking men and women ask the question: “whither the Rule of Law?”

(The writer is former Judge, Bombay High Court)

Indian democracy Teesta Setalvad Human Rights Activist Anti-Terrorist Squad Supreme Court 2002 Gujarat riots Zakia Jafri case Rule of Law Magna Carta Liberty Equality Fraternity Article 19 Fundamental Rights Law Free India minority community Dharam Sansad Bilkis Bano case Issue 39 2022 Online News Magazine Indian Currents

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