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The Crumbling Rule Of Law In India

Prerna Dhoop & Vandana Dhoop 19 Oct 2020 11:42 PM

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10/21/2020 The Crumbling Rule Of Law In India

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[1]
The Government of India needs a rm reminder of what Justice K.K. Mathew said:

"The rule of law is not like a twinkling star up above the constitution, it is very much a terrestrial
concept which has its habitat within the four corners of the constitution."

Human rights activists, lawyers, journalists, academicians and even independent agencies have

faced widespread criticism, intimidation and violence for exposing the breakdown of rule of law in

India. Unfortunately, these acts of harassment are mostly, either state sponsored or in the

alternative, have received its ex post facto approval. Even the European Parliament's Sub-

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Committee on Human Rights Chair Marie Arena has recently expressed great concern over the

deterioration of rule of law situation in India.

Also Read - Getting To Yes – An Understanding And Summation

At this juncture, it is pertinent to dissect the theoretical concept of rule of law and understand its

constituent elements in order to assess the prevailing rule of law situation in India. The modern

concept of rule of law has three basic aspects: formal, procedural and substantive as re ected in

the works of famous philosophers and thinkers.

The Greeks believed that the rule of law was a precursor to the establishment of a prosperous and

just society. Even, Herodotus had asserted that, "[G]reeks although free were not free in everything:

they had a master namely the law." Aristotle argued that while a perfect world justice would not

need laws at all however, in an imperfect world like today's India, justice can only exist if the mutual

relations between the state and citizens are regulated by law. However, being extremely pragmatic,

he could also foresee a scenario where despite the existence of fair and just laws in a country, an

arbitrary and unjust government would purposefully not implement them.

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For example, by outrightly rejecting the tribal and other forest dwelling communities' ownership

claims and consequently, transferring the agency and power over forest land and its produce to the

forest department o cials, the government is systematically diluting the Scheduled Tribes and

Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 thereby depriving them of

their rights to their ancestral land, life and livelihood. Maladministration, chaos and havoc have

resulted from the government's intentional ignorance and insensitivity towards the close symbiotic

relationship that prevails in a forest ecosystem among the ora, fauna and human dwellers.

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To ll the gap that exists between the rule of law and its actual implementation by the government,

the Romans stressed on a well functioning legal system characterised by accessible and impartial

courts. Cicero glori ed the rule of law in the following words: "It is far greater shame, in a state

which rests upon law, that there should be a departure from law. For the law is the bond which

secures our privileges in the commonwealth, the foundation of our liberty, the fountain head of

justice…the state without law would be like the human body without mind..the magistrates who

administer the law, the judges who interpret it- all of us, in short-obey the law in order that we may

be free."

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Shockingly, the special CBI court in Lucknow completely disregarded newspaper clippings, video

cassettes, tapes, printed material, speeches, and witness testimonies and acquitted 32 BJP and

VHP leaders in the Babri Masjid demolition case, almost 28 years after the December 6, 1992

incident, for lack of 'credible evidence'. As citizens we can only hope and wish that in the Hathras

rape case, the victim's dying declaration is considered as 'relevant fact' and not discarded by the

government's investigating agencies.

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The Magna Carta of 1215, the spiritual and legal ancestor of the modern concept of rule of law

propounded the notion that no person, including the sovereign is above the law and that all persons

shall be secure from the arbitrary exercise of governmental powers. John Locke cautioned that a

government's legitimacy does not solely depend on the popular consent rather, he emphasised that

in order for the government to achieve legitimacy in the eyes of the populace all its powers must be

"directed to no other end but the peace, safety and public good of the people".

Paying little heed to the widespread demands for referring the labour bill to parliamentary

committees for in depth scrutiny of issues affecting the Indian labour, the government passed the

bill through a mere voice vote. Providing a farcical social security scheme for unorganised labour

force; making it far easier for industrial establishments to re workers; and restricting their rights to

strike and collective bargaining seemingly, the government is on an anti-labour frenzy. Further, the

government's decision to roll back the Question Hour from the Monsoon session of the Parliament,

directly injures the rule of law in India.

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British jurist A.V. Dicey formulated a unique understanding of the rule of law by linking it with the

principle of legal equality. He stated in unequivocal terms that "no man is above the law and every

man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to

the jurisdiction of the ordinary tribunals." As such, when the Prime Minister's Citizen Assistance and

Relief in Emergency Situations (PM CARES) Fund's name, composition, control, usage of emblem,

government domain name- everything signi es that it is a 'public authority' then why is it being

treated differently and kept outside the purview of the Right to Information Act, 2005.

Austrian philosopher Frederich Hayek opined that in a rule of law society human freedoms are of

utmost importance such that restrictions on individual freedom are prescribed and de ned before

hand and the state implements the restrictions very sparingly. But the recent arrest of an

octogenarian Catholic priest Father Stan Swamy who suffers from Parkinson's disease, on charges

of sedition for his work as a human rights defender is a direct attack on individual freedoms.

Further, the ouster of Amnesty International from the country has left a deep dent in the India's

human rights jurisprudence and practice.

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Adding the substantive requirement to the formal and procedural facets of the concept, Prof. (Dr.)

Upendra Baxi observed: "rule of law is always and everywhere a terrain of peoples' struggle

incrementally to make power accountable, governance just, and state ethical…The Indian rule of law

stands here normatively conceived not just as a sword against State domination and violation and

historic civil society norms and practices but also as a shield empowering an encyclopaedic regime

of 'progressive' state intervention in the life of civil society." Ironically, instead of protecting the right

to housing of the poor amidst the Covid pandemic, the Supreme Court of India in August 2020,

ordered for the removal of 48,000 jhuggi jhopdis (hutments) built along the railway tracks in Delhi.

The concept of rule of law runs like a golden thread through the entire fabric of the Constitution of
[2]
India, 1950. In Additional District Magistrate, Jabalpur v. Shivakant Shukla and Others, Justice H.

R. Khanna observed that,"rule of law is the antithesis of arbitrariness. It is identi ed with the liberty

of the individual. It seeks to maintain a balance between the opposing notions of individual liberty

and public order. In every State the problem arises of reconciling human rights with the

requirements of public interest. Such harmonising can only be attained by the existence of

independent courts which can hold the balance between citizen and State and compel

Governments to conform to the law". The recent allegations raised against a sitting Supreme Court

Judge, Justice N.V.Ramana of collusion with the ex-Chief Minister of Andhra Pradesh, N.

Chandrababu Naidu, has the potential to undermine the citizenry's faith in the Supreme Court as the

ultimate arbiter of the rule of law in India.

Collating the various meanings and characteristics of the concept of rule of law collected across

continents and civilisations, the three overlapping aspects of the concept may be summed up as

follows: the principle of neutrality requires that restrictions on human freedoms should only be

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imposed by law, not on the basis of the personal whims or arbitrary decisions of government

o cials. The principle of universality demands that government action should be subject to strict

regulation and legal scrutiny such that public servants must be held accountable for erring in their

legal duties. Lastly, the principle of good governance requires the government to work towards

actualising the constitutional promise of rule of law.

However, with the constant and multifaceted attacks on the rule of law practice in India evidently,

the government cares little!

Views are personal only.

(Prerna Dhoop is a human rights lawyer based in Kolkata.Vandana Dhoop is an independent

research consultant)

[1]
Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr. (1975) Supp. SCC 1

[2]
(1976) 2 SCC 521; AIR 1976 SC 1207

TAGS RULE OF LAW  SC/ST ATTROCITIES ACT  BABRI DEMOLITION  RAM JANAM BHOOMI CASE 

PROCEDURAL LAW  JUSTICE 

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