Rule of law should not be confused with rule by law
By Soli J Sorabjee | Published: 22nd September 2013 07:02 AM |
Rule of Law owing to its indiscriminate use at seminars and lectures has meant different things to different people at different times. Probably that is what exasperated Sir Ivor Jennings, the famous constitutional historian, to characterise Rule of Law as ‘an unruly horse’. I thoroughly disagree with this description because if we properly understand and appreciate its essence, Rule of Law can be a noble steed with a good jockey in the saddle. Hence there is a need for clarity on the subject.
First and foremost, Rule of Law should not be equated with law and order. Breakdown of law and order is a temporary phenomenon. Breakdown of Rule of Law means collapse of good governance and breakdown of constitutional machinery in a State. Remember that Rule of Law is not a legalistic slogan. It symbolises an enlightened civilised society’s quest to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence.
An essential component of the Rule of Law is that exercise of governmental powers prejudicial to a person must have the sanction of law. Consequently, the holding of a public meeting or staging of a dramatic performance cannot be prohibited by an executive order without the sanction of law. Again, a play or a book cannot be banned by an administrative circular without the backing of a law. When John Adams used the historic phrase, “a government of laws and not of men”, he was not indulging in a rhetorical flourish but was flatly repudiating the idea of rule by fiat or firman, by individual whim and caprice. He was emphasising what Burke had earlier said that law and arbitrariness are sworn enemies.
A basic tenet of the Rule of Law is: However high you may be, the law is above you. You may be the Prime Minister or the Speaker or the Imam or the Archbishop or a judge or the Sankaracharya or whoever, all are equally subject to the law. That imparts the element of non-discrimination in the concept of the Rule of Law.
Rule of Law is essential for the protection of human rights. The Universal Declaration of Human Rights, 1948, the Magna Carta of Mankind, in its third Preamble mentions that human rights should be protected by the Rule of Law. In its pathbreaking judgment in Keshavanand Bharti’s case, our Supreme Court ruled that there are certain essential features of the Constitution which cannot be amended by Parliament even if it possesses the requisite majority. In its list of essential features is included the Rule of Law.
It is important not to confuse Rule of Law with rule by law. The existence of a law is necessary but that is not sufficient. The law must have a certain core component which guarantees the basic human rights and the human dignity of every person. Nazi Germany put Jews in concentration camps and thereafter sent them to the gas chambers. The justification offered was that there was a law which empowered such acts to be done. But that was rule by law, not Rule of Law. During the apartheid regime in South Africa, repressive and racially discriminatory laws against the black majority were sought to be justified on the basis of enacted laws. It is a heresy that mere existence of a law would permit gross violation of human rights at the altar of the Rule of Law.
Above all, it must be remembered that there is nothing western or eastern or northern or southern about the lofty concept of the Rule of Law. It has a global reach and global dimension. In the memorable words of late Justice Vivian Bose of our Supreme Court, Rule of Law, “is the heritage of all mankind” because its ultimate rationale is belief in the human rights and human dignity of all individuals everywhere in the world.
Sorabjee is a former Attorney General of India