THE RULE OF LAW VS THE RULE BY LAW

                                                                                                                       ———- Chief Justice N.V. Ramana

• Our struggle for independence marked our journey towards the establishment of a state defined by the “Rule of Law”.
• There was a need to give a guarantee for the laws to be framed with a human face for the benefit of the masses. A framework was needed to ensure this. The framework that forms the binding link between law and justice in this country is what “We the people” gave to ourselves in the form of the Constitution.

• The framers envisaged the Constitution which not only took care of the prevailing conditions but would also continue and be relevant for all times to come.  Therefore Constitution is conceived as a living document whose contents evolve over the years, as the Courts deal with new situations and question and interpret the Constitution in the light of the same.
• The Constitution embodies within itself the concept of Rule of Law and the same can be witnessed from our Preamble, the Fundamental Rights, the Directive Principles of State Policy, the Separation of Powers, etc.
• By situating the concept of Rule of Law at the confluence of three important values – human dignity, democracy, and justice, our founding fathers showed the path for the rest of the world too.

v  Judges should not be swayed by the emotional pitch of public opinion, which is getting amplified through social media platforms. Judges have to be mindful of the fact that the noise thus amplified is not necessarily reflective of what is right and what the majority believes in.

v  Social media is incapable of distinguishing between right and wrong, good and bad, and the real and fake. Therefore, media trials cannot be a guiding factor in deciding cases. It is therefore extremely vital to function independently and withstand all external aids and pressures.

v  The ultimate responsibility of a judge is to uphold the Constitution and the laws. Reason, reasonableness, and protection of human dignity are the values that will serve us well.

• The “Rule of Law” demands expertise, experience, and commitment. Lawyers should perform their duties with integrity and diligence. We need social virtue rather than economically self-interested behaviour.
• Historically, lawyers have a rich tradition of social activism demonstrated by the number of lawyers who participated in the Indian freedom struggle.
• We need now to rebuild and recreate a tradition of civic professionalism. We need a professional ideology about social responsibility.
•  Both young and senior counsels should extend a helping hand to those in need of justice. Extending ease of access to justice is no less a social justice.

• To advance the “Rule of Law” we primarily need to create a society where “Rule of Law” is respected and cherished.
• Only when the citizens believe that they have fair and equal access to justice, can we have sustainable, just, inclusive, and peaceful societies.
• Citizens can strengthen the “Rule of Law” by being knowledgeable about it and by applying it to their daily conduct and pushing for justice when needed.

• When laws are expected to be obeyed, the people at least ought to know what the laws are.
•  Law should be worded in simple, unambiguous language.

•   In India, we are constantly striving to make legislations and judgments accessible to the general public by translating them into various Indian languages.

•  An important aspect of “equality before the law” is having equal “access to justice”.
• Access to justice forms the bedrock of the “Rule of Law”.

•   This guarantee of equal justice will be rendered meaningless if the vulnerable sections are unable to enjoy their rights because of their poverty or illiteracy or any other kind of weakness.
•  There is a need for legal empowerment of women. It not only enables them to advocate for their rights and needs in society but also increases their visibility in the legal reform process.

• The very essence of a democracy is that its citizenry has a role to play, whether directly or indirectly, in the laws that govern them.

•  In the seventeen national general elections held so far, the people have changed the ruling party or combination of parties eight times, which accounts for nearly 50 per cent of the number of general elections.
• Despite large-scale inequalities, illiteracy, backwardness, poverty, and alleged ignorance, the people of independent India have proved themselves to be intelligent and up to the task. The masses have performed their duties reasonably well.

• The judiciary is the primary organ that is tasked with ensuring that the laws which are enacted are in line with the Constitution. Judicial review is one of the main functions of the judiciary.

• The Supreme Court has held this function to be a part of the basic structure of the Constitution, which means that the Parliament cannot curtail the same.
•  But the responsibility of safeguarding constitutionalism lies not just on the Courts. All the three organs of the State, i.e., the executive, legislature, and the judiciary, are equal repositories of Constitutional trust.
• The role of the judiciary and scope of judicial action is limited, as it only pertains to facts placed before it. This limitation calls for other organs to assume responsibilities of upholding Constitutional values and ensuring justice in the first place, with the judiciary acting as an important check.

• The origins of the Rule of Law theory can be traced back to the Ancient Romans during the formation of the first republic.
•   Plato has written that if rule of law is under the supervision of any law then it doesn’t have any value and the concept of state will get collapsed. Aristotle has written that law should be the final sovereign of the state.
•  It has since been championed by several thinkers in Europe such as Hobbs, Locke, and Rousseau through the social contract theory.

• The term “rule of law” comes from the French phrase “la Principe de legality,” which translates to “government based on legal principles.” It is based on the Latin phrase “Lex is Rex,” which translates to “Law is King.”

•  It is based on the Latin term ‘Rex is Lex’ which means ‘King is Law’.

• The Rule of Law was first originated by Sir Edward Coke, the Chief Justice in England at the time of King James I. Coke was the first person to criticize the maxims of Divine Concept. He strongly believed that the King should also be under the Rule of Law.
• According to him, “Rule of Law” means the absence of arbitrary power on the part of the Government.

•  In his battle against the Church and common law judges, King James I of England triumphed, twisting the phrase ‘Lex is Rex’ to ‘Rex is Lex.’

• The state should act as per the “Rule of Law” which is the foundation of any constitution.

•   The state acts as per what it this as lawful rather than what the “Rule of Law” says like invoking section 144 without its necessity.