Raipur: 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.’
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.
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”.
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’.
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.