Rule of Law
by H.R. Khanna *
Cite as : (1977) 4 SCC (Jour) 7
I deem it a privilege to have been asked to speak on the rule of law.
Ever since the beginning of civilisation, two conflicting viewpoints, rule of men or rule of law, have competed for acceptance. Although each school of thought has not lacked in its votaries, in the aggregate the thinking has been in favour of the rule of law. On occasions we have slipped back into government by will only to return again sadder and wiser to the rule of law when hard facts of human nature demonstrated the selfishness and egotism of man and the truth of the dictum that power corrupts and absolute power corrupts absolutely. Rule of law is now the accepted norm in all civilised societies. Even if there have been deviations from the rule of law, such deviations have been covert and disguised, for no government in a civilised country is prepared to accept the ignominy of governing without the rule of law.
The content of rule of law varies from country to country, but everywhere it is identified with the liberty of the individual. It seeks to strike a balance between the opposing notions of individual liberty and public order. The question of reconciling individual rights with the requirements of public interest has always posed a vexed problem. Such reconciling and harmonising can be attained by adherence to the rule of law and by the existence of independent courts which can hold the balance between the citizen and the State and compel both to conform to law.
Respect for law and respect for government have a mutual relationship. Erosion of one necessarily has its effect on the other. Government under law means that the power to govern shall be exercised only under conditions laid down in the Constitution and the laws approved by the people or their representatives. Law thus emerges as a norm limiting the application of power by the government over the citizens or by citizens over their fellow citizens. Government under law seeks the establishment of an ordered community in which the individual aware of his rights and duties comprehends the area of activity within which as a responsible and intelligent person he may freely fashion his life secure from interference from either the government or other citizens.
For true efflorescence of the rule of law we need a climate of democracy. Rule of men, as distinguished from rule of law, has normally paved the way to authoritiarianism and dictatorship. Experience tells us that unfettered power vested in individuals, however well intentioned they might initially be, has ultimately turned them into dictators and despots, unresponsive to the public opinion and scornful to the public feeling. There is, it may be stated, a direct nexus between democracy and the rule of law. It is also plain that without rule of law there can be no proper dispensation of justice. Inter-relationship between democracy and the proper administration of justice has accordingly come to stay. Man's love of justice makes democracy possible, but man's inclination to injustice makes democracy necessary. It is, therefore, no wonder that independence of courts has been found irksome by tin gods of dictatorship. Rule of law postulates recognition of civil rights and liberties. Such rights and liberties which are essential attributes of democratic societies, have always been frowned upon by dictatorships. It is indeed a truism to say that the strength of democratic institutions in a country can be measured by the extent of the prevalence of civil rights and liberties enforceable through the courts of law.
One vital index of the rule of law is that no one shall be deprived of his life or liberty without the authority of law. This indeed can be regarded as the touchstone of the rule of law. Recently, we passed through a period of eclipse of certain basic values, values which we had cherished since the days of the struggle for independence, values which are a part of the common heritage of mankind in a civilised world. Amongst those values are the rule of law which necessarily postulates that no one shall be deprived of his life or liberty without the authority of law. These values also include certain freedoms like freedom from fear as also the freedom of expression which comprises within itself the freedom to dissent and the freedom of the Press. The eclipse of those values cast a shadow over our national life and we are all wondering as to when the lights would be aglow again. And in March this year we saw the upsurge of mass feeling against the erosion of the cherished values.
It has been said that despite its inconsistencies, its crudities, its delays and its weaknesses, law still embodies so much of the results of that disposition as we can collectively impose. Without it we cannot live; only with it can we insure the future which by right is ours. The best of man's hopes are enmeshed in its process; when it fails they must fail; the measure in which it can reconcile our passions, our wills, our conflicts, is the measure of our opportunity to find ourselves. Man may be a little lower than the angels, he has not yet shaken off the brute and the brute within is apt to break loose on occasions. To curb and control that brute and to prevent the degeneration of society into a state of tooth and claw, we need the rule of law. We also need the rule of law for punishing deviations and lapses from the code of conduct and standards of behaviour which the community speaking through its representatives has prescribed as the law of the land.
If there are three prime requisites for the rules of law, they are a strong Bar, an independent judiciary and an enlightened public opinion. There can, indeed, be no greater indication of the decay in the rule of law than a docile Bar, a subservient judiciary and a society with a choked or coarsened conscience. Fearlessness became a part of or heritage since the days of the struggle for independence when Mahatma Gandhi carried on a relentless campaign to banish fear out of our hearts. Fear dwarfs human personality, turns even heroes into men of clay and prevents efflorescence of higher values of life. Fear likewise stifles the conscience and dries up springs of idealism. When fear stalks the land its attendants are servile sycophancy, rank opportunism and nauseating charlatanism and the casualties are the noble impulse of the mind. Where fear is justice cannot be. Under the shadow of fear a court becomes an instrument of power, a so-called trial is a punitive expedition, a ceremonial executionits victims are a Joan of Arc or a Galileo.
And while talking of independence of courts, I must remove a misconception. Independence of court does not necessarily mean deciding a case against the State. Sometimes a notion prevails that the more a Judge decides cases against the State, the more independent he is. This is a wholly misleading notion and the sooner it is dispelled the better it is for the health of the community. It is also wrong to believe that in every dispute between the citizen and the State, the State is in the wrong and the citizen in the right. Every government in a welfare State has to undertake a number of measures with a view to bring about socio-economic reforms. While taking those measures, the activity of the State must in the nature of things impinge upon the private rights of individuals. The modern approach is that the welfare of the community must have primacy over the private rights of the individual. The individual whose rights are so impinged upon is bound to challenge the measures adopted by the government. If the courts in their zest to show independence, judging independence by the above test, were to strike down all measures of the government it would be stultifying and setting at naught all schemes to bring about socio-economic reforms. We, therefore, should not take a lopsided view of the independence of the judiciary. Independence means dispensation of justice without fear or favour. Independence postulates keeping the scales even in any legal combat between the rich and the poor, the mighty and the weak, the State and the citizen. As much injustice can be done by keeping the scales weighted in favour of citizen and against the State, as it can be by keeping the scales weighted in favour of the State and against the citizen. It is for that reason that we need persons on the Bench who can weigh things in the balance with supreme impartiality, who are undaunted by any consideration except that of justice, justice absolute, justice pure and unalloyed, whom nothing can sway, neither mob frenzy nor the views of the powers that be, persons with resolute hearts, persons whose allegiance is to justice and to nothing else. Timidity of mind ill goes together with the office of a Judge. Weak characters cannot be good Judges.
Effront to the rule of law can take many forms. I have already referred to the period when words like sanctity of life and liberty sounded like a distant cry. Rule of law also suffers when prisoners and those under arrest are subjected to humiliation. If somebody be guilty of an offence, he should be sent up for trial and on conviction made to pay the penalty prescribed by law. But prisoners and those under arrest too are human beings and it certainly constitutes an onslaught on the rule of law to subject them to indignity and humiliation beyond what is inherent in the very act of their arrest and prosecution or conviction. Any talk of human rights and civil liberties would sound hollow and meaningless if we countenance measures as are violative of basic human dignity which is possessed by every person on account of his being human. Attempt to bring in personal likes and dislikes of individuals in the enforcement of laws is obnoxious to the rule of law.
Question then arises as to whether under the garb of rule of law are we not ushering in judicial oligarchy in place of executive supremacy. To put it in other words, if the executive supremacy results in elimination of fetters on executive fiats, does not rule of law result in vesting the courts with immense powers of uncontrolled nature. The question thus turns on the point as to whether Judges are absolutely free to decide the maters that come up before them in any way or are there any limitations subject to which the will of the Judges masquerading as judicial discretion can be exercised. The answer to this was given by Justice Cardozo when he said that the Judge, even when he is free, is not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or goodness. He is to draw inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in social life. Wide enough in all conscience is the field of discretion that remains.
To repeat what was said by me on an earlier occasion, Judges are men, not disembodied spirits, they respond to human emotions. The great tides and currents which engulf the rest of mankind, in the words of Cardozo, do not turn aside in their course and pass the Judges idly by. Yet, notwithstanding the human factor, the courts operate in a setting that forces responsibility upon them. Judges are bound within walls, lines, and limits that are often unseen by the laymanwalls, lines, and limits built from the heritage of the law; the impact of the cases as they have come down through the years; the regard for precedent, the self-imposed practice of judicial restraint, in brief, the tradition of the law. It is also an essential requisite for a Judge to acquire a certain amount of detachment and discernment, so that he is not carried away by popular catchwords and shibboleths. We must always beware of the danger which underlies the disposition to take the immediate for the eternal, the transitory for the permanent and the ephemeral for the timeless. This necessarily calls for a determined resistance to the hypothecation of the thinking process. It also postulates a free trade in ideas. It has been the tradition for the Press, the Bar and the enlightened sections of the community to make a vital and significant contribution in the carrying on of this trade. No one can underrate the importance of this trade for the health and growth of the society. To put it in the words of a great master, when men have realised that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideasthat the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Catholicity of outlook, freedom of thought and a broad spirit of tolerance has been the tradition of India since ancient times. In few other countries has there been such fusion of different schools of thought, religious beliefs and cultural streams.
So far as the Judges of the higher courts are concerned, their office demands that they be historian and prophet rolled into one, for law is not only as the past has shaped it in judgments already rendered but as the future ought to shape it in cases yet to come. Law necessarily has to carry within it the impress of the past tradition, the capacity to respond to the needs of the present and enough resilience to cope with demands of the future. A code of law, especially in the social fields, is not a document for fastidious dialectics; properly drafted and rightly implemented it can be the means of the ordering of the life of a people. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. In times like our own when deep changes are taking place in the convictions of man, it is not as the completed revelation that, in the words of Learned Hand, the living successors of the past law makers can most truly show their reverence for law or continue the tradition which they affect to regard. Only as an articulate organ of the half understood aspirations of living men; constantly recasting and adapting existing forms, bringing to the highlight of expression the dumb impulses of the present, can they continue in the course of the ancestors whom they revere.
Law, if it is to prove an effective instrument of social utility, must respond to and find an answer to the felt necessities of the time. It cannot seek refuge in a vacuum of abstractions. No amount of verbal praise and encomium for the rule of law by some votaries of law and intellectual theorists would win respect of the mass of people of the rule of law unless in its actual working the rule of law satisfies the quest for justice in concrete terms. The courts through whom the authority of law speaks and enforces itself must earn reverence through the test of truth. In the final analysis, the people are the Judge of Judges, and every trial is a trial of our judicial system. Delay in the disposal of cases is a standing stigma on our judicial system. Not only ordinary cases but even those which call for prompt and speedy disposal linger on in courts for years. This understandably creates disenchantment and causes anguish to all those who knock at the door of the courts to seek prompt relief. Justice delayed in a large number of cases is as good or bad as justice denied. Where is the justice if a young wife or husband seeks matrimonial relief and gets it after ten or fifteen years by which time the period of youth becomes a matter of the past. Of what avail is the acquittal of a person who has to spend years as an undertrial prisoner in jail. Instances like these can be multiplied ad infinitum. All over the world today the trend is to have one right of appeal on question of fact and the right of second appeal only on substantial question of law. It is a mistake to suppose that provision for too many appeals leads to greater justice. There is no guarantee that if a decision is reversed in appeal, the decision of the court of appeal is necessarily correct and that reversed in appeal is incorrect. I have no doubt that if right of appeal were provided from the judgment of the highest court of the land, a number of its decisions would be reversed in appeal. The Supreme Court, it has been said, is not final because it is infallible; it is infallible because it is final.
Thoughts of great men of law are not windfalls of inspiration. They are the product of years of contemplation and brooding. It was said of great Judge that the anguish which preceded his decisions was apparent, for again and again, like Jacob, he had to wrestle with the angel all through the night; and he wrote his opinions with his very blood. But when once his mind came to rest, he was as inflexible as he had been uncertain before.
Rule of law does not depend merely upon the courts and the law enforcement agencies. Rule of law needs a general climate of order and discipline. It postulates an attitude of mind according to which the bulk of population is inclined to obey the law and act in accordance with it irrespective of the fact whether the law enforcement agencies are on the watch. An atmosphere of indiscipline strikes at the very basis of the rule of law. Today we find forces of indiscipline raising their ugly head in universities and education institutions. There is also industrial unrest with strikes and lock outs and consequent loss in industrial production. Indiscipline has likewise marred other fields of life. All these factors impinge upon the general law and order situation. It would be tragedy if an impression comes to prevail that without some repressive measures, we cannot ensure discipline in public life.
We must not also lose sight of the fact that all rights are conditioned upon the existence of duties. For every right there is a corresponding duty. A nation wherein people are conscious only of their rights and not of their duties would soon find itself in a state of anarchy. Some nations have made express provisions for the duties of people in their constitutions. For example, Article 12 of the Japanese Constitution provides that the freedom and rights guaranteed to the people by this Constitution shall be maintained by the constant endeavour of the people, who shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilising them for the public welfare. Likewise, according to Article 18 of the West German Constitution, whoever abuses freedom of expression of opinion, in particular freedom of the press, freedom of teaching, freedom of assembly, freedom of association, the secrecy of mail, posts and telecommunications, ownership, or the right of asylum in order to combat the free democratic basic order, shall forfeit these basic rights. Even where there are no express provisions, it is an implicit assumption of every Constitution that the liberties conferred upon the people shall not be abused. Those who love liberty, they must also ensure the maintenance of conditions which are vital for the preservation of liberty.
Now that a new government has come into power, I would repeat what was said long ago in British Parliament by Lord Brougham, because those words have an equal relevance today in our country. Said the noble Lord:
"It was the boast of Augustus that he found Rome of brick and left it of marble. But how much nobler will be our sovereign's boast when he shall have it to say that he found law dear and left it cheap; found it a sealed book, left it a living letter; found it the patrimony of the rich, left in the inheritance of the poor; found it the two-edged sword of craft and oppression, left it the staff of honesty and the shield of innocence."