Soli Sorabjee Lectures

RULE OF LAW A MORAL IMPERATIVE FOR

THE CIVILISED WORLD

Soli J SorabjeeFormer Attorney General for India

[Lecture at NLSIU Bangalore05th April 2014]

The concept of the Rule of Law has different facets and has meant different things to different people at different times. It has evoked sharply divergent reactions. To some legal historians it is ‘the unqualified human good’. Others characterize Rule of Law as “a device that enables the shrewd, the calculating, and the wealthy to manipulate its form to their own advantage”. Professor Brian Tamanaha has described Rule of Law as “an exceedingly elusive notion giving rise to a rampant divergence of understandings and analogous to the notion of the Good in the sense that everyone is for it, but have contrasting convictions about what it is”. Probably that is what prompted the constitutional historian, Sir Ivor Jennings, to characterize Rule of Law as ‘an unruly horse’.

It may be difficult to define Rule of Law with scientific precision but it cannot be dismissed as an elusive notion or as an unruly horse. Rule of Law is not a meaningless

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ritualistic legal slogan endlessly chanted at seminars and university lectures. Rule of Law in essence embodies a lofty concept. It denotes commitment to certain principles and values.

An essential principle of Rule of Law is that every executive action, if it is to operate to the prejudice of any person must have legislative authority to support it. An echo of this principle is found in the ancient case of Entick v. Garrington decided in 1765. Two messengers of the King had broken into Entick’s house and seized his papers in pursuance of warrants issued by the Secretary of State. In the action brought by Entick for trespass the Secretary of State conceded that no specific legal authority, either in the common law or in statute, permitted him to issue the warrants. His defence was that the warrants were necessary in order to protect the interests of the state and that similar warrants had been used in the past without question. These arguments were rejected. In a seminal ruling the Court held that government needed specific legal authority to arrest people and claims of state necessity were insufficient. Since the general warrants were illegal and void the King’s messengers could be sued for trespass. This principle has been generally accepted in Britain.

The same principle was reiterated in 1931 by Lord Atkin, in the celebrated judgment of the Privy Council in the

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case of Eshugbayi Eleko, when it declared that “no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of Justice”. Although there is no mention of the Rule of Law in the Privy Council opinion it laid the seeds for the future development of the doctrine of Rule of Law.

The vital importance of the Rule of Law in safeguarding the fundamental liberties of a person is well brought out in an anecdote attributed to Voltaire, the great French thinker. Voltaire was imprisoned for a piece of writing he did not write, whose author he did not know and whose sentiments he did not share. His imprisonment was on account of the arbitrary whim and caprice of the ruling authorities in France. When he escaped and came to London his first observation was “here I breathe the air of freedom because in this country men are ruled by law, not by whim and caprice, in other words not by arbitrary rule”.

Thus when John Adams used the historic phrase, “a government of laws and not of men”, he was not indulging in a rhetorical flourish. He was emphasizing that law containing rules of general applicability and not individual whimsicality, should govern the conduct and affairs of people.


There is an instructive passage in Robert Bolt’s play ‘A Man for all Seasons’ which portrays the character of Sir Thomas More. It pertains to an incident when Sir Thomas More was urged by his daughter Margaret and his son-in-law Roper to arrest a man whom they regarded as evil. Margaret said, “Father, that man’s bad.” More replied, “There is no law against that.” And Roper said, “There is God’s law.” More then said, “Then God can arrest him. I know what’s legal, not what’s right and I will stick to what is legal. I am not God. The currents and eddies of right and wrong which you find such plain sailing, I cannot navigate. I am not a voyager.” Roper would not be appeased and he leveled the charge that More would even give the devil his due. More said, “Yes, what would you do? Cut a bridge road through the law to get even after the devil?” Roper retorted, “I’d cut down every law in England to do that.” And that prompted More to say, “Oh! And when the last law was down and the devil turned round on you, where would you hide, Roper? This country is planted thick with laws from coast to coast, man’s laws, not God’s, and if you cut them down, do you really think you can stand upright in the winds that would blow then? Yes, I’d give the devil the benefit of law for my own safety’s sake.”

Joseph P Lash in his biographical essay on the US Supreme Court judge Felix Frankfurter states that in 1962 the Australian Ambassador to the United States, Sir Howard


Beale persuaded Frankfurter to go with him and his wife to see Robert Bolt’s play. When More counters Roper with the statement I have quoted. Frankfurter could not contain himself and kept whispering in the dark “That is the point, that’s it, that’s it!” That indeed is the essential message and rationale of the Rule of Law. Alas, it is constantly disregarded.

It needs to be emphasised that there is nothing western or eastern or northern or southern about the underlying principle of Rule of Law. It has a global reach and dimension. Rule of Law symbolizes the quest of civilized democratic societies’, be they eastern or western, to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence. In the words of the great Justice Vivian Bose of our Supreme Court, Rule of Law, “is the heritage of all mankind because its underlying rationale is belief in the human rights and human dignity of all individuals everywhere in the world.”

Rule of Law provides a potent antidote to executive lawlessness. It is a salutary reminder that wherever law ends, tyranny begins. Thanks to the prevalence of Rule of Law no administrator or official can arrest or detain a person unless there is legislative authority for such action. Again a Police Commissioner or any other public


functionary cannot ban a meeting or the staging of a play or the screening of a movie by passing a departmental order or circular which is not backed by law. Likewise no person can be deprived of his property without the authority of law. Rule of Law ensures certainty and predictability as opposed to whimsicality and arbitrariness so that people are able to regulate their behaviour according to a published standard against which to measure and judge the legality of official action. Experience testifies that absence of Rule of Law leads to executive high handedness and arbitrariness and emergence of Police Raj.

Rule of Law runs like a golden thread in our Constitution. Part III of the Constitution guarantees certain fundamental rights. For example, Article 14 states “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. No fundamental right in the Constitution is absolute. Reasonable restrictions can be imposed on the exercise of the various fundamental rights guaranteed under Article 19 but the primary requirement is that the restriction must be prescribed by law, not by administrative non-statutory instructions or circulars. Consequently freedom of speech and expression and freedom of the press cannot be restricted save by enacted law. Again, no tax can be levied or collected except by authority of law (Article 265). Article


300A stipulates that no person can be deprived of his property save by authority of law.

In its unique decision in the case of Keshavananda Bharati our Supreme Court ruled in April 1973 that even a constitutional amendment can be struck down as unconstitutional if it abrogated any essential features of the Constitution and it is significant that the Court considered Rule of Law as one of the essential features of the Constitution. In a subsequent Nine bench decision in January 2007 in the case of I.R. Coelho vs. State of Tamil Nadu Rule of Law is regarded as part of the basic structure of the Constitution. Consequently Rule of Law cannot be abolished even by a constitutional amendment. This manifests the high status accorded to the Rule of Law in Indian constitutional jurisprudence. And, mind you, that is not merely in theory. In practice our Supreme Court has vigorously enforced the Rule of Law.

A remarkable instance is the invalidation of a constitutional amendment by the Supreme Court in its judgment in the case of Indira Gandhi v. Raj Narain delivered on 17th November 1995. Let me provide some background facts of this judgment. Mrs. Indira Gandhi’s election was challenged by her political rival, the feisty Raj Narain, in the Allahabad High Court on the ground of commission of certain alleged electoral malpractices. The


High Court invalidated Mrs. Gandhi’s election on that ground. An appeal was preferred to the Supreme Court by Mrs. Gandhi. In order to get over the High Court judgment Clauses 4 and 5 of Article 329-A were introduced in the Constitution by the Thirty Ninth Amendment of the Constitution on 10th August 1975. This was done during the operation of the spurious emergency which was foisted on the people of India. Clause 4 exempted the disputed election of Prime Minister Indira Gandhi from the restraints of all election laws and declared her election as valid notwithstanding any judgment of any court. Clause 5 further ordained that any appeal pending before the Supreme Court shall be disposed of on the assumption that the findings contained in the judgment under appeal against Mrs. Indira Gandhi never had any existence in the eye of the law and that the election declared void by the judgment of the High Court shall continue to be valid in all respects. It is incredible that such blatantly discriminatory and arbitrary provisions could be enacted in the Constitution of the democratic republic of India. But regrettably during the period of emergency democracy had suffered a temporary demise. These provisions which were assailed before the Supreme Court were described by Justice Chandrachud of the Supreme Court of India, as “calculated to damage or destroy the Rule of Law” and as “the very negation of the


Rule of Law”. The appeal of Mrs. Gandhi was however allowed on other grounds.

Our Supreme Court has ruled in more than one decision that any executive action prejudicial to a person must have the sanction of law. There are several instances where the Supreme Court of India has steadfastly enforced the Rule of Law. In a case before the Supreme Court arising from Punjab whose police officials known for their no nonsense approach had forcibly thrown out unauthorized occupants, trespassers in fact, from government premises. The Court struck down the action because the State was unable to point out at that time any legal authority to justify forcible eviction without recourse to a court of law. The Court was rightly not impressed by the State’s fervent plea that the persons who were forcibly evicted were rank trespassers and deserved no sympathy.

The Supreme Court enforced the Rule of Law in the case of Pakistani prisoners who had served their full term of imprisonment but were yet kept in jail by Indian authorities. The stand of the government was that Pakistani authorities had meted out the same treatment to Indian prisoners. The Court brushed aside that argument and observed that in India “we enforce the Rule of Law which applies to citizens and non-citizens alike”.


All this may appear strange to some people and is certainly irksome to administrators. But that is the price we have to pay for a democratic society based on the Rule of Law. And one litmus test of our belief in principles is to apply them to cases with which we have no sympathy at all.

Another major premise of the Rule of Law is that law shall be equal in its application. Thus there is an essential link between the Rule of Law and the principle of equality. The basic tenet of Rule of Law as articulated by the poet Thomas Fuller and adopted by courts is: “however high you may be the law is above you”. Therefore you may be the Prime Minister or the Speaker or the Imam or the Archbishop or the Sankaracharya or a judge or whoever, all are equally subject to the law of the land because “… in our democratic polity where the Rule of Law reigns no one – however highly placed he may be – can claim immunity, much less absolute immunity from the law”. According to our Supreme Court the doctrine of equality before the law is a necessary corollary to the high concept of Rule of Law.

What is the position when an enacted law confers discretionary powers on public officials? At one time under Dicey’s pervasive influence it was believed that wide discretionary powers were antithetical to the Rule of Law. But it was soon realised that discretionary powers are needed in administration especially in implementation of


socio-economic welfare measures. A play in the joints is required for effectuating socio-economic legislation. What Rule of Law frowns upon is the conferral of absolute unfettered discretion. Our Supreme Court in its decision in Jaisinghani’s case in 1967 ruled that “the first essential of the rule of law upon which our whole constitutional system is based is that discretion, when conferred upon executive authorities, must be confined within clearly defined limits”. The Court reaffirmed this position and ruled in 1975 in Khudiram’s case that “in a government under law, there can be no such thing as unfettered unreviewable discretion”. The Court referred to the famous statement of Justice Douglas of the US Supreme Court that “Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler … Absolute discretion is a ruthless master. Where discretion is absolute, man has always suffered”.

The concept of Rule of Law has received an expansive interpretation. In this context I would refer to the view of the International Commission of Jurists. At its conference in New Delhi in 1959 it declared that the Rule of Law “is not merely to safeguard and advance civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural condition under which his legitimate aspirations and human dignity may be realized”. Thus, Rule of Law is a dynamic concept, which


takes within its ambit all human rights which are indivisible and are interdependent.

Does the concept of Rule of Law find its fulfillment by the mere enactment of a law, or is it also concerned with the content and quality of the law? Enactment of a law is no doubt essential but is that sufficient? Rule of Law must not be confused with Rule by law. Otherwise Rule of Law would become an instrument of oppression and give legitimacy to laws grossly violative of basic human rights. The crux of the matter is that there is a certain core component without which a government cannot really be said to be based on the Rule of Law. That core component is respect for the basic human rights of the people and for human dignity. Otherwise commission of atrocities and gross violation of human rights could be justified by pointing to the mere existence of a law. On this interpretation, Rule of Law would also purportedly justify racially discriminatory legislation of the kind which was enacted during the apartheid regime in South Africa or infliction of torture or cruel and unusual punishment pursuant to a law which permitted it.

The horrific violations of human rights which happened in large parts of Europe which were under subjugation of the tyrannical Nazi regime were purportedly pursuant to laws passed by the regime. We witnessed the midnight


knock on the door, the mysterious disappearances, confessions extracted by torture, concentration camps and the gas chambers. In Nazi Germany the problem was not about lack of laws. Most of the actions of the Nazi State were pursuant to laws made by the regime. However these laws were patently violative of human rights. A formalistic narrow concept of the Rule of Law which leads to that interpretation and consequences must be rejected.

It is significant that the Universal Declaration of Human Rights 1948, described by Mrs. Eleanor Roosevelt as the Magna Carta of mankind, declares in its Preamble that it is essential that human rights should be protected by the Rule of Law.

Andrew Le Sueur and Maurice Sunkin in the excellent treatise on Public Law have aptly summarized the main ideas associated with the Rule of Law as follows:

(1) Compliance with the law: like citizens, government and public bodies must act in accordance with the law and must have legal authority for actions which impinge on the rights of others.

(2) The requirement of rationality::The rule of law implies rule by reason rather than arbitrary power or whim. In order to comply with the rule of law,


decisions must be properly and logically reasoned in accordance with sound argument.

(3) The rule of law and fundamental rights: the rule of law requires the protection of the fundamental rights of citizens against government.

Therefore when we speak of law, it must satisfy at least the prerequisite that it guarantees basic human rights and human dignity and ensures their implementation by due process through an independent judiciary exercising power of judicial review. Absent these requirements Rule of Law would become a shallow slogan. In the memorable words of Lord Justice Stephen Sedley of the Court of Appeal in UK “the irreducible content of the rule of law is a safety net of human rights protected by an independent legal system”. I would like to stress that to enforce the Rule of Law an independent judiciary is a must. India has been fortunate in having a judiciary which has except for occasional aberrations proved to be a good judicial sentinel and protected the human rights of the people. Without an independent judiciary, Rule of Law is meaningless and human rights are mere high-sounding moral platitudes.

I would like to mention about the scourge of terrorism from which India has suffered over the years culminating in the terrorist attacks in Mumbai in November 2008. There is no question that terrorism needs to be fought rigorously and


relentlessly. However anti-terrorist laws must not contain provisions which destroy or impair basic human rights. A law, which permits killing of persons suspected to be terrorists or which enables their indefinite detention in the absolute discretion of the executive is destructive of the Rule of Law. Fake encounters and ‘encounter specialists’ have no place in a government professedly based on the Rule of Law. The purported justification that there is a ‘grave emergency’ to fight the ‘war on terror’, overlooks the basic fact that the end does not justify the means. This was an article of faith with the Father of our Nation, Mahatma Gandhi. A State in a free democratic society cannot have recourse to measures which violate the very essence of the Rule of Law. In the memorable words of Justice Stevens of the US Supreme Court, “if this nation is to remain true to its ideals it must not wield the tools of tyrants even to resist an assault by the forces of tyranny”. In this context we should always remember the wise words of Justice Brandies in his judgment in Olmstead vs. United States : “Crime is contagious. If the government becomes a law-breaker, it breeds contempt for law; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means is to declare that the government may commit crimes in order to secure the conviction of a criminal would bring terrible retribution”.


Our Supreme Court in its celebrated decision in D.K. Basu v. State of West Bengal ruled that “custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. … It cannot be said that a citizen ‘sheds off’ his fundamental right to life the moment a policeman arrests him. Nor can it be said that the right to life of a citizen can be put in ‘abeyance’ on his arrest. … If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchy. No civilized nation can permit that to happen. The Supreme Court as the custodian and protector of the fundamental and the basic human rights of the citizens cannot wish away the problem. … State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to terrorism. That would be bad for the State, the community and above all for the Rule of Law”.


It must be remembered that the Rule of Law is not a one way traffic. It places restraints both on governments and individuals. If the underlying principles of Rule of Law are to become a reality in governance as also in our lives no doubt laws are necessary but they alone are not sufficient. In addition fostering of the Rule of Law culture is imperative. The only true foundation on which the Rule of Law can rest is its willing acceptance by the people until it becomes part of their own way of life. Therefore we should strive to instill the Rule of Law temperament, Rule of Law culture at home, in schools and colleges. We should strive for the universalization of its basic principles. Our effort should be to constantly aim at the expansion of the Rule of Law to make it a dynamic concept which not merely places constraints on exercise of official power but facilitates and empowers progressive measures in the area of socio-economic rights of the people. That indeed is the moral imperative for the Civilized World. You may well ask why? The answer, recalling the words of Justice Vivian Bose, is that “Because we believe in human worth and dignity. Because, on analysis and reflection, it is the only sane way to live at peace and amity with our neighbours in this complex world. Because it is the only sane way to live in an ordered society”.

I for one eagerly look forward to the day when the quintessential principles of the Rule of Law, namely the


protection and promotion of all human rights and human dignity of all human beings is universally accepted. My ardent hope is that in a world torn by violent sectarian and religious strife Rule of Law with its capacious dynamic content becomes the secular religion of all nations based on tolerance and mutual respect. That no doubt appears Utopian. May be. But remember that progress is the realisation of Utopias. We must earnestly strive to realize this Utopia which is a moral imperative for the civilized world.

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Soli Sorabjee Lectures