By Dr S. Saraswathi
The Supreme Court has asked the government to treat a writ petition filed in the court seeking setting up of expert panels to find ways of enhancing India’s rank in the Rule of Law Index as a “representation” and respond within six months. For, it is not a judicial issue, but a matter for government consideration.
In the Rule of Law Index 2020 prepared by the World Justice Project (WJP), India is given 69th rank among 128 countries and jurisdictions – not even among first half in the list. WJP is an independent, multi-disciplinary organisation working for promoting the Rule of Law (ROL) worldwide. It is a quantitative assessment tool designed to provide a detailed and comprehensive picture of the extent to which those who govern various countries are bound to act according to laws and regulations and prescribed procedures and adhere to the rule of law in practice. An independent judiciary, individual freedoms, and free press are considered essential ingredients of ROL. Such an index with inputs from several countries regarding their practices can be a valuable guide to advance in the Rule of Law.
Effective Rule of Law prevents arbitrary decisions, and can reduce corruption and protect people from injustices. Whether it can combat poverty as claimed by its advocates may be disputed by welfare theorists. But, it is to be accepted as the foundation for justice, equal opportunity and peace underpinning development, and fundamental rights for all citizens. It guarantees an accountable government that holds law as supreme.
Rule of Law is being discussed from the days of Plato and Aristotle. As a political concept, it can be traced to 16th century Britain as a right of subjects against the divine right of kings. Its originator was Sir Edward Coke, Chief Justice in the reign of James I. To John Locke, freedom in society means being subject only to laws made by a legislature that apply to everyone equally. British jurist AV Dicey popularised the concept of Rule of Law as the corner-stone of parliamentary democracy. No man is punishable or can be lawfully made to suffer in body or goods except for distinct breach of law, and no man is above law.
In 2006, eight sub-rules comprising ROL were added by Lord Bingham in the House of Lords. Besides holding law as supreme, equal and accessible, he included protection of essential and basic human rights, and compliance with the obligations of international law. He mentions that the executive must use powers given to them reasonably in good faith or proper purpose, and must not exceed the limits.
WJP defines the Rule of Law as a system in which following four universal principles are ingrained — accountability of government and its officials and agents under the law; clear, publicised, stable and fair laws that protect fundamental rights including security of persons and property; accessible, efficient and fair process by which laws are enacted, administered, and enforced; and delivery of justice by competent, ethical, and independent representatives and neutrals in sufficient number and having adequate resources and reflecting the make- up of the communities they serve.
Present day rulers may not be claiming any divine right, but may have the power to misuse, bend and misinterpret laws. The powerful in the government and opposition may tend to take law in their hands for personal/group advantage, and apply them selectively.
Human rights, equality, transparency, participation and cooperation may suffer due to the exigencies of situations. There are myriad ways in which well meaning laws may be violated in practice. Individual cases of violations can be rectified, but deliberate bending of rules, manipulations in procedures, constant use of loopholes and abuse of discretionary powers make a mockery of the ROL.
Our country is governed by laws, legally established institutions, lawfully framed procedures, and well laid administrative regulations that are definite, publicised and common to all. Rulers are also subject to law and not above. Rule of Law is one of the basic features of the Constitution and an integral part of the principles of governance. Independent judiciary is the hallmark of the ROL.
Under Rule of Law, all members of a society, including the governing group, are considered equally subject to existing law of the land the contents and processes of which are publicly disclosed. Equality and openness are two essential characteristics of the Rule of Law. The term is closely associated with “constitutionalism” – a political situation and not any specific law.
ROL is not just a weapon against unquestionable State domination or against the whims and fancies of the ruling groups; it is also a shield protecting the civil society. It has grown in various forms apart from legal and procedural codes like permitting judicial activism, public interest litigation, suo moto judicial intervention on press reports and so on thus making justice more easily available and accessible to the citizens.
WJP index is based on the results of a survey of over 130,000 households and 4,000 legal practitioners and experts to measure how the Rule of Law is perceived and experienced worldwide. Countries covered have different political and juridical systems, economic standing, ethnic-social characteristics, historical background, population complexion, and domestic and international problems. But, these are not taken into account in the preparation of the index as in any such global index which goes by scores given on the specific indicators used in the project.
Denmark, Norway, Finland, Sweden, Netherlands, Germany, New Zealand, Austria, Canada, and Estonia are the top 10 and Zimbabwe, Pakistan, Bolivia, Afghanistan, Mauritania, Cameroon, Egypt, Democratic Republic of Congo, Cambodia, and Venezuela are the bottom 10 countries in the index repeating 2019 record. Noteworthy is the removal of the US from top 20 and Spain getting elevation. France declined from 17 to 20 in rank. The UK stands at rank 13.
On the whole, the global trend is found to be declining in the past three years. Last year, the fall was in fundamental rights, absence of corruption, and particularly on constraints on governmental power. Civil justice shows most positive movement over previous year. Regulatory enforcement has improved.
In the context of COVID-19 pandemic, nations undergo crisis after crisis not only in health sphere, but in many human activities, necessitating quick decisions and prompt actions. Emergency situations do not wait for normal decision-making processes. The government may have to have powers to deal with extraordinary difficulties with extraordinary powers. But, the powers and exercise of the powers have to be consistent with the rule of law meaning without arbitrariness.
Several countries have to make several adjustments and sacrifices relating to personal rights while fighting the life threatening pandemic. They have touched some liberties, affected transparency, and curtailed freedom of movements, etc., to some extent necessary for controlling the disease. The question whether the pandemic may be used as an excuse for restrictions on personal freedom and economic activities has arisen as a political issue in some countries. The foundations of the ROL are strong enough in our country to survive the threats from the pandemic which are temporary. —INFA
(The writer is Former Director, ICSSR, New Delhi)