SINCE the beginning of Indian civil society, its affairs were regulated not by laws of state but by customary rules known as dharma. Dharma is what holds together or a code of duties for harmonious functioning of various divisions of society. Dharma shastras or smritis laid down rules for every caste and vocation, every relation in society, king and subject. Rule of law is also referred as Dharma Rajya in ancient Indian texts.
There is a popular saying in ancient Indian scriptures with regard to Rashtra Dharma i.e. duties towards the nation. It recognises the place of mother and motherland over and above a place in Heaven. In Rig Veda, there is clear instruction to keep motherland independent and under self-rule. Jana and gana i.e. people and republic have come under reference in Rig Veda. In Mahabharata, Dharmaraj Yudhishthira asked Bhishma the definition of a model democratic republic. Bhishma (Shantiparva 107.14) then stated that by arbitrary rules republics are destroyed.
In Artharva Veda (6.64.2) there is clear instruction to treat people as equal and sabhas (legislatures) and samitis (committees) should be open for every person. Unity of thought and equal fundamental rights for every citizen are also advocated therein. This is also the short definition of rule of law. There is clear reference in ancient Indian texts that for democratic republic, internal disturbances hold more importance than that of the external. Federal democratic republics find mention in the days of Kautilya, the founder and conceiver of Economics and its theories in India and Acharya Panini texts. In that period, groups formed by people’s representatives were called gana, which thereby assembled to form sabha (legislature) and samitis (committees).
Without the rule of law there can be no rule of higher law. Those who acknowledge a non-positive natural or other law, existing prior to the state and demanding respect for fundamental human rights, necessarily support the rule of law ideal. A tyrant unlimited by law is clearly not bound by human rights. There is no way, in any but an inconceivably small polity, for a majority vote of the community to decide every individual dispute. Only if the majority enacts general rules that can and will be faithfully applied by police and courts to individual cases there is any hope that the people can governed. Without the rule of law there can be no democracy of any substantial size. To the degree that stability is good; preserving the state is another reason to prefer the rule of law over the discretionary rule of political leaders. Because we care so much about the rule of law, we wish to see it effectively applied and enforced. Through mistake or ill will, individuals may not always observe the law if left unsupervised. Similarly, a president or a legislator, despite his or her oath to support the Constitution, may misinterpret or ignore that document in the pursuit of political results.
Non democratic dictators may well also impose their will through Constitutions and statutes. When law rules no extra legal commands are treated as obligatory. The relation between law and action is seen as one of obligation. In a nation governed by rule of law, actions and duties, administrative set-up, legal system and elected bodies all function as per their obligations.
In his visionary and inventive principles drafted as nation’s life-philosophy for Jan Sangh, now the BJP, Pt. Deendayal Upadhyaya conceived his ideas for good governance. As per his thoughts, India should be governed on the principles of Dharma Rajya which is a secular rule or a government governed by the rule of law.
The rule of law can be defined as a system in which the laws are public knowledge, are clear in meaning, and are applied equally to everyone. They enshrine and uphold the political and civil liberties that have gained status as universal human rights over the last half-century. The relationship between the rule of law and liberal democracy is profound. The rule of law makes possible individual rights, which are at the core of democracy. Democracy includes institutions and processes that, although beyond the immediate domain of the legal system, are rooted in it. Basic elements of a modern market economy such as property rights and contracts are founded on the law and require competent third-party enforcement. Without the rule of law, major economic institutions such as corporations, banks and labour unions would not function, and the government’s involvement in the economy-regulatory mechanisms, tax systems, customs structures, monetary policy and the like- would be unfair, inefficient and opaque.
The dictionary meaning of rule is dominant customs, standards, principles to which actions or procedures confirm. As per dictionary, the rule of law is the condition in which all members of society, including its rulers, accept the authority of the law or code of discipline observed by religious order, customary rules recognised by the society, order of a court.
According to a standard formulation laws are norms that are (a) general (b) public promulgated (c) not reactive (d) clear and understandable (e) logically consistent (f) feasible (g) stable over a period of time. The rule of law legitimates and thus stabilises governments.
The above mentioned values (human rights, democracy and freedom) are among the chief reasons that women and men are willing to tolerate and support being governed. A government that ignores the rule of law undercuts not only those three values but also its own existence.
A comparison of principles of rule of law in India with that of the values prevailing today in some countries and union’s would give an in-depth idea of our laws and its basic flaws.
The English legal tradition is celebrated for its unique and ancient contribution to the concept of the rule of law. Albert Venn Dicey a renowned English expert on rule of law meant here the absence of arbitrary power on the part of the government. The rule of law means in the first place “that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.” It also implies that “every person, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.”
The formal enshrinement of the rule of law in the European Union’s founding treaties should be understood in the political context of that time. Following the end of the cold war, European countries agreed to commit themselves to promoting human rights, democracy and the rule of law as the three fundamental principles on which the “new Europe” must be founded. The European Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
The framers of Indian Constitution were keen to preserve the democratic values of Indians which had attached highest importance in the struggle for freedom. They had before them precedent of the Government of India Act, 1935 whose detailed provisions were at that time, unfortunately, found suitable for adoption in the interest of continuity and certainty. The Preambles contains the structure of our Constitution and spells out the aspiration of the people to secure for all its citizens justice, liberty, equality and promote amongst the people a feeling of fraternity, ensuring dignity of individual and unity of the nation. In the statutory framework of India, one does unfortunately come across provisions which introduce or maintain certain amount of inequality between Government officers and ordinary citizens, which does not qualify to the Dicey’s second corollary to the rule of law. Further, subsequent 42nd Amendment Act of 1976, 1951 and 56 has made the Constitution definition of rule of law unfavourable to certain classes of citizens.
The recent class war between Meena and Gujjar caste in Rajasthan and the atrocities and trouble faced by Biharis in Assam and Maharashtra due to regionalism speaks about the basic flaw in the Indian legal system and its governance. It is also against the fraternity clause of the Constitution and is affecting the unity and integrity of this great nation.
(The writer is Executive Member of BJP’s National Trader Cell and can be contacted at [email protected])