The Vice President of India, Shri M. Hamid Ansari
has called for implementation of Dr. Ambedkar’s
three-point corrective – using constitutional methods of achieving social and
economic objectives, not laying our liberties at the feet of even a great man
and making our political democracy a social democracy as well – in order to
address the shortfalls that are corroding the edifice so diligently put in
place by the Founding Fathers of the Republic. He was addressing the 3rd
Convocation of Hidayatullah National Law University
(HNLU), Raipur, Chhattisgarh
today, which was attended by the Chief Justice of India, Shri
H.L. Dattu, the Chief Minister of Chhattisgarh,
Dr. Raman Singh, the Chief Justice of High Court of Chhattisgarh,
Shri Navin Sinha, the Higher Education Minister of Chhattisgarh,
Shri Prem Prakash Pandey, the Law Minister
of Chhattisgarh, Shri
Mahesh Gagda, the Vice Chancellor of HNLU, Dr. Sukh Pal Singh, the Registrar of HNLU, Dr. Deepak Kumar Srivastava and other dignitaries.
The Vice President said that the
Constitution of India embodies the modern concept of rule of law with the
establishment of a judicial system, which should be able to work impartially
and free from all influences, adding that the constitutional and juridical framework
were thus impeccable.
Questioning the extent to which we
as a polity are implementing the principles and procedures of rule of law in
actual practice, the Vice President said that both in terms of procedural
technicalities, and substantive content, there a sense of unease with regard to
the working of the rule of law.
The answer, the Vice President said,
is to be sought in the functioning, or mal-functioning, of the institutions of
the State. Quoting a United Nations Research Institute for Social Development
study, the Vice President said that the Parliament is increasingly becoming
ineffective in providing surveillance of the executive branch of the
government. With regard to the executive, the Vice President opined that the
balance between its political and professional components has been disturbed
and was evident in the functioning of the civil service and particularly of the
police. As for the judiciary, the Vice President said that while the traditional
public esteem for the judiciary has been reinforced by its activism in contrast
to the failure of the executive, particularly in expanding the ambit of rights,
lack of access to justice, the high cost of it, delays in the delivery of
justice, lack of a mechanism for accountability and allegations of corruption
have, together, given rise to doubts and added to the pervasive pessimism about
the efficacy of institutions. Another area of concern is the excessive zeal
reflected at times in pronouncements of members of the judiciary, he added.
Following is the text of
Vice President’s Convocational Address:
“I am happy to be here in Raipur
to address today’s convocation.
This University is named after a former Chief Justice
of India and an eminent jurist who, as Professor Upendra
Baxi put it, ‘lived the life of law and justice’ and
was ‘an effortless exemplar of judicial values.’
The aim of a law school, said an eminent American
judge of yesteryears, is not to make men smart but to make them wise in their
calling; ‘the main part of intellectual education,’ he added, ‘is not the
acquisition of facts, but learning how to make facts live.’
In a similar vein is Lord Denning’s advice to young
lawyers: ‘a lawyer without a background in history and literature is like a
mason whose only job is to fix brick upon brick, but with a strong background
of history and literature a lawyer is an architect who can visualize the entire
edifice that will endure for decades.’
II
Ours is a society that professes to live by laws and
legal education ultimately ensures the efficiency of the Justice Administration
system in the country. This day therefore marks an
important stage in the training of the young legal minds present here
Our founding fathers resolved to make India a
sovereign, democratic, republic with a view to secure to all its citizens
Justice, Liberty and Equality and thereby achieve Fraternity that would assure
the dignity of the individual and the unity and integrity of the Nation.
To this end, we adopted the Constitution of India as
the fundamental law of the land to guide us in all matters of legislative,
executive and judicial action. The Constitution, and the judicial structure emanating
from it, is premised on the concept of the Rule of Law.
As students of law, this audience is familiar with it
and many would have read and digested the standard texts prescribed in the
curricula of studies.
The term itself has deep roots in history but in its
modern form was specifically enunciated in late 19th century by the
British jurist Albert Dicey.
To him, the essentials of rule of law were (a) the
absolute supremacy of regular law (b) equality before the law (c) access to
justice and development of law by the judges on a case by case basis.
Echoing Dicey, John Rawls has stressed that there is
no offence without a law – nulla poena sine lege. This
requirement in turn demands that laws be known, that they be general, that
penal laws should not be retroactive to the disadvantage of those to whom they
apply, and finally, the legal system must respect the dictates of natural
justice, since ‘justice is the first virtue of institutions and the rights
secured by justice are not subject to political bargaining or to calculus of
social interests.’
In terms of the institutions of the State, the
classical approach to rule of law implies their functioning in terms of the
limits prescribed by the basic law of the land so that the possibility is
excluded, in Montesquieu’s words, of the enactment of
‘tyrannical laws’, or their execution in a tyrannical manner. This further
safeguarded by the judicial power discharging its functions independently of
the legislature and the executive.
Thus, the essence is that all authority is
subject to and constrained by law.
Over time and in different societies, these principles
have been challenged, amplified and modified.
Upendra Baxi has sought to read the
rule of law as going beyond a mere division of functions in modes of
governance. To him, it is the rule of good law and is as such reflective
of the struggle of a people ‘to make power accountable, governance just, and
state ethical’.
He opines that the Indian constitutional conception of
the rule of law links its four core notions: Rights, Development, Governance
and Justice.
III
The Constitution of India embodies the modern concept
of rule of law with the establishment of a judicial system, which should be
able to work impartially and free from all influences.
Its section on Fundamental Rights elucidates this in
some detail. These include, inter alia:
- Article 14 guarantees equality before law and
equal protection of laws;
- Article 15 prevents discrimination on ground of
religion, race, caste, sex or place of birth and provides for affirmative
action for socially and educationally backward classes of citizens and for
Scheduled Castes and Scheduled Tribes;
- Article 16 provides for equality of opportunity
in matters of public employment;
- Article 19 guarantees certain freedoms, including
those of speech and expression;
- Article 21 guarantees that no person shall be
deprived of his life or personal liberty except according to the procedure
established by law.
- Article 22 provides protection against arrest and
detention;
- Article 25 guarantees the right to freedom of
conscience and free profession, practice and propagation of religion;
- Article 29 protects the cultural and educational
rights of minorities;
- Article 32 guarantees the right to move the
Supreme Court of India to ensure the enforcement of fundamental rights
conferred on citizens under Part III of the Constitution.
Rule of Law, said the Supreme Court
in Dalmia Cement case of 1996, ‘is a potent
instrument of social justice to bring about equality in result’. In the Golakh Nath case, the meaning and
scope of rule of law under the Indian Constitution was expanded. It is now
regarded as a part of the basic structure of the Constitution and, therefore,
cannot be abrogated or curtailed even by the Parliament.
In the case of Bachan Singh
v. State of Punjab, the Court emphasized that rule of law excludes
arbitrariness and unreasonableness. To ensure this, it suggested that while it
is necessary to have a democratic legislature to make laws, its power should
not be unfettered, and that there should be an independent judiciary to protect
the citizens against the excesses of executive and legislative power.
In the Maneka Gandhi case,
the Supreme Court established the requirement of reasonableness and non-arbitrariness
of procedure in Article 21 through Article 14 and ruled that a law prescribing
a procedure for depriving a person of “personal liberty” will have to meet the
requirement of Article 21, and also of Article 19, as well as of Article 14.
The procedure must be “right, just and fair” and not “arbitrary, fanciful or
oppressive”. It should conform to the principles of “natural justice”.
IV
The constitutional and juridical framework is thus
impeccable, but it is relevant here to raise a question about the extent to
which we as a polity are implementing these principles and procedures in actual
practice?
One informed
commentator has noted that ‘the rule of law is still not sufficiently protected
in the Indian society’ and that challenges to it, ‘continue to undermines the
Indian democracy and pose grave threats to governance.’ Earlier, a senior law
officer of the Government addressed this problem candidly and sought answers to
specific questions:
• Have the constitutional organs of
the State - the Legislatures, the Executive and the Judiciary – discharged the
obligations placed on them by the Constitution?
• Have they functioned within the
limits set forth by the Constitution?
• What is the perception of the public
with regard to their functioning?
• To what extent is the perceived
erosion in their working the result of intra-institutional and
inter-institutional problem?
His answers
to these were unedifying:
(a) The Rule
of Law in India is under serious threat;
(b) There is
widespread popular disillusionment;
(c) There
are cancerous developments eating into the fabric of each institution and each
is destroying itself from within; and
(d) If these
trends are not arrested, they are bound to be destructive of the Indian State
in the long run.
In a similar vein but
commenting on the wider picture, civil society groups in the country and abroad
have observed that ‘the rule of law in India is in a downward spiral’ and that
the primary responsibility for it lies with the ‘delayed justice dispensation
system’.
It would thus appear
that both in terms of procedural technicalities, and substantive content, there
is a sense of unease with regard to the working of the rule of law.
Why has this happened?
The answer is to be
sought in the functioning, or mal-functioning, of the institutions of the State
that have led to this ‘cancerous development’.
An institution-wise
assessment would therefore be in order.
The United Nations
Research Institute for Social Development published in January 2006 a study of
‘The Indian Parliament as an Instrument of Accountability.’
It concluded that
Parliament is increasingly becoming ineffective in providing surveillance of
the executive branch of the government. One part of this is attributed to the behaviour pattern of the MPs and the wastage of time that
could otherwise be devoted to legislative duties and scrutiny of executive
action. Another reason is the increasing complexity of modern governance and
the resultant need for greater professionalism in legislative work.
The requisite
correctives are not forthcoming. As a result, ‘a hobbled legislative has ceded
ground not to the executive or external forces, but to the judiciary’.
In regard to the
executive, the balance between its political and professional components has
been disturbed. This is evident in the functioning of the civil service and
particularly of the police. Thus ‘the myth of authority’, on which the power of
the State depends, has been dented and resulted in what Mr. Fali
Nariman has called ‘executive under-reach.’
As for the judiciary,
the traditional public esteem for the judiciary has been reinforced by its
activism in contrast to the failure of the executive to apply correctives on
matters of concern. This is particularly true of its good work in expanding the
ambit of rights.
On the other hand, lack
of access to justice, the high cost of it, delays in the delivery of justice,
lack of a mechanism for accountability and allegations of corruption have,
together, given rise to doubts and added to the pervasive pessimism about the
efficacy of institutions. One law officer has also expressed concern over the
‘increasing disregard of the salutary doctrine of precedents’.
Another area of concern
is the excessive zeal reflected at times in pronouncements of members of the
judiciary. Some observers have asserted that ‘the Supreme Court has given up
any formal pretence to the doctrine of the separation of powers’. This is perceived
to upset, as a former Speaker of the Lok Sabha observed, ‘the fine constitutional balance and the
democratic functioning of the state as a whole’.
V
It is evident from the foregoing that our doctrinal
commitment to Rule of Law notwithstanding, the implementation of the principle
compels us to conclude that ‘the glass is half full’ and that the shortfalls
are corroding the edifice so diligently put in place by the Founding Fathers of
the Republic. The root cause for this shortfall is the absence of what Mr. Soli Sorabjee has recently called
‘the rule of law temperament and culture.’
Perhaps Dr. Ambedkar had a
premonition of the lurking dangers. In his concluding speech in the Constituent
Assembly in 1949, he cautioned fellow citizens about the pitfalls and offered a
three-point corrective that remains relevant:
· hold fast to constitutional methods of achieving our
social and economic objectives,
· not to lay their
liberties at the feet of even a great man, or to trust him with power which
enable him to subvert their institutions and,
· make our political democracy a social democracy as
well.
I thank you for inviting me here
today, urge you to implement Ambedkar’s correctives,
and wish you success and happiness.
Jai Hind”
***
KSD/BK