General Studies

Polity & Governance-Rule of Law

Rule of Law

Why in news?

Recently, Chief Justice of India delivered a lecture on Rule of Law and he advocated that, “the story of ‘Rule of Law’ is nothing but the story of civilization of humans.”

What is Rule of Law?

  • According to V. Dicey, the rule of law means the absolute supremacy or predominance of the regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness or even of wide discretionary.
  • Only a State that is governed by law imbibing ideals of justice and equity can be said to have the ‘Rule of Law’. According to Dicey, Rule of law contain three principles:
  • The origins of the Rule of Law theory can be traced back to the Ancient Romans during the formation of the first republic; it has since been championed by several medieval thinkers in Europe such as Hobbes, John Locke, and Rousseau through the social contract theory.
  • Indian philosophers such as Chanakya have also espoused the rule of law theory by maintaining the state is governed, not by the ruler or the nominated representatives of the people but by the law. The expression ‘Rule of Law’ has been derived from the French phrase ‘la principle de legalite’, i.e., a government based on the principles of law.

Key Principles that emphasize the Rule of Law

  • Laws must be clear and accessible: Laws are expected to be obeyed and for that people at least ought to know what the laws are. Hence, laws need to be worded in simple & unambiguous language.
  • Equality before the law: Important aspects of equality before law are having equal access to justice & ensuring Gender Equality. Equal access to justice forms the bedrock of the Rule of Law.
  • Right to participate in the creation and refinement of laws: The very essence of a democracy is that its citizenry has a role to play, whether directly or indirectly, in the laws that govern them. In India, it is done through elections, where the people get to exercise their universal adult franchise to elect the people who form part of the Parliament which enacts laws.
  • Strong independent judiciary: The judiciary is the primary organ which is tasked with ensuring that the laws which are enacted are in line with the Constitution. So, judicial review of laws is one of the main functions of the judiciary.

What are the challenges in implementation of Rule of Law?

1. Challenges rooted in laws and legislative framework:

Archaic Laws: Laws which are obsolete, redundant, repetitive, and irrelevant to the current times, make the legal process long, expensive, and time-consuming.

Multiplicity of laws: The multiplicity and complexity of laws make compliance, deterrence, and effective enforcement difficult if not impossible. The result is circumvention by citizens and businesses, making them vulnerable to harassment from state functionaries.

Criminalization of Politics: The proportion of elected candidates with criminal cases, which stood at 15% in the year 2009, rose up to 17% in 2014 election and has further gone up to an excruciating 19% in 2019 election in India as reported by the Association for Democratic Reforms (ADR).

2. Challenges rooted in implementation of legislations:

Administrative Challenges: Colonial-era laws, deep politicization, and an over-centralized hierarchy have also burdened the police.

Law as a tool of oppression: Using law for oppression illustrates a tear in the fabric of constitutionalism and the rule of law in India.

For example, sedition case registered against senior journalist Vinod Dua for criticising the government’s handling of the Covid-19 lockdown indicates rule by law rather than rule of law.

3. Challenges rooted in upholding justice:

Overburdened Judicial System: Pending court cases have continued to rise gradually over the past year, straining the already overburdened judicial system. India now has almost 4 crore pending cases in the Supreme Court, high courts and the numerous subordinate courts.

Influence of social media: The new media tools have enormous amplifying ability and hence judges should not be swayed by the emotional pitch of public opinion either, which is getting amplified through social media platforms.

Lack of access to justice: Lack of access to justice for vulnerable sections due to poverty, illiteracy violates fundamental aspect of natural justice.

What can be done to overcome these challenges?

1. Repeal Archaic Laws: The revising, repealing, and updating of old laws are sorely needed—and greater precision in the drafting of replacement language is essential.

For example, legislative consolidation and simplification is the model established by the Financial Sector Legislative Reforms Commission.

2. Safeguards against misuse of Laws: Proper legal and concrete evidence has to be there to prevent misuse of law and there should be close scrutiny at every level. Different agencies of state should ensure that due process of law is applied while dealing with various cases under legislations like UAPA, etc.

3. Curbing Criminalization of Politics: As recommended by the Law Commission of India’s report on Electoral Disqualifications, by effecting disqualification of tainted politicians at the stage of framing of charges, with adequate safeguards, the spread of criminalization of politics may be curbed.

4. Use of Information technology (IT) solutions: The use of technology for tracking and monitoring cases and in providing relevant information to make justice litigant friendly.

Electronic filing of cases: e-Courts are a welcome step in this direction, as they give case status and case history of all the pending cases across High courts and Subordinate courts bringing ease of access to information.

5. The Economic Survey 2018-19 has suggested formation of Indian Courts and Tribunal Services to provide administrative support functions needed by the judiciary and identify process inefficiencies and advise the judiciary on legal reforms.

Questions that could be asked in exam:

Question 1. What are the main aspects of rule of law. Elucidate.

Question 2. What is the rule of law? Discuss the underlining challenges in establishing the ‘rule of law’.

Question 3. How do you see the recent lecture by Chief Justice of India, where he said,  “the story of ‘Rule of Law’ is nothing but the story of civilization of humans.”

Question 4. Critically examine the role of executive and judiciary in maintaining the rule of law.

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