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Law in a democracy

RULE OF LAW IN A FREE SOCIETY: N. R. Madhava Menon — Editor; The Nehru Centre, Mumbai and Oxford University Press, YMCA Library Building, Jai Singh Road, New Delhi-110001. Rs. 495.

This is a collection of 11 essays, based on a lecture series organised by the Nehru Centre, Mumbai. The authors are amongst the most distinguished names in our country in the field of law and governance: from legal academia, N. R. Madhava Menon, who is also the editor of the volume, and B.S. Chimni ; from the Bench, former Chief Justices of India M.N. Venkatachaliah, J.S. Verma and former Supreme Court Judge K. T. Thomas; from the Bar, Soli Sorabjee and Goolam Vahanvati; f rom the political leadership — and also from the Bar — P. Chidambaram; from the administrative service, N. Vittal; and from the police service, V.K. Saraf and Prakash Singh.

That there is high praise for the Rule of Law in this book should come as no surprise. Everyone loves the Rule of Law — even the Chinese, who had initially waged an acrimonious war of prepositions in which they pitted their “Rule by Law” against the (Western) “Rule of Law”, have now thrown in the towel. A February 2008 “White Paper on China’s Rule of Law”, issued by the State Council of China (China’s highest executive body), says, for example, “As the crystallization of human wisdom…the Chinese people… know well the significance and value of the rule of law, and thus cherish the fruits they have achieved in building China into a country under the rule of law…” Closer home, even Sharad Pawar loves the Rule of Law! In his foreword to this volume (as Chairman of the Nehru Centre, Mumbai) Pawar declares that “strict adherence to the principles of the Rule of Law alone will put India on the path of progress...” (emphasis added) Who said our political leaders lack a sense of humour?

The concept of the Rule of Law — drawing from the Magna Carta of 1215 — has been a powerful idea that has disciplined power, bending it to justice. The concept has increasingly added ethical content to governance, requiring not only that the state should be fair and obey rules of natural justice, but also that it should comply with peremptory, non-derogatory norms of human rights law. Unlike the ancient Indian principle of dharma — which imposed an obligation on the ruler but vested no rights in the ruled — the idea of the Rule of Law has provided fertile ground for the growth of entrenched rights enforceable against the ruler. Yet, what makes it possible today for an M.N. Venkatachaliah on the one hand, and a Sharad Pawar or the State Council of China on the other, to simultaneously embrace the Rule of Law is its amorphous meaning and its uncertain impact on democracy and social change. In the words of Soli Sorabjee, it “has meant different things to different people at different times” and it has been put to “indiscriminate, promiscuous use.” On the whole, views about the Rule of Law in this book are somewhat dated and uncritical. Except perhaps for Justice M. N. Venkatachaliah who warns that “at the altar of this great principle of the Rule of Law important social goals [should not be] sacrificed” and Chimni who points out that the Rule of Law “would not necessarily translate into justice for the poor, marginal and oppressed sections of the world,” the essays do not adequately take note of contemporary scholarly interrogation of today’s social impact of this idea.

For example, Frank Upham, in Mythmaking in the Rule of Law Orthodoxy (Carnegie Paper, October, 2003), argues that a “new rule of law orthodoxy linking formalist legal regimes and economic development ignores the empirical evidence and is ultimately counterproductive.” Stephen Golub argues in Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative (2003) that “the international aid field of law and development focuses too much on law, lawyers and state institutions, and too little on development, the poor and civil society.” Robin West, in “Re-Imagining Justice: Progressive Interpretations of Formal Equality, Rights, and the Rule of Law” criticises the rule of law for having become overly associated with the idea of limited government and social conservatism. Ahmed White, in a 2001 article “Rule Of Law And The Limits Of Sovereignty: The Private Prison In Jurisprudential Perspective” (2001) raises the issue whether the “sovereign-power limiting” approach of the Rule of Law could, in a democratic society, be counter-majoritarian, limiting fundamental social and economic change; “reinforcing the aspirations and self-images of contemporary Anglo-American society and free-market finance capitalism, norms of the western human rights agenda, and a constitutional order that usually is similar to the American model.” What is needed is a more meaningful debate on how the idea of the Rule of Law should be shaped in the Indian context to better serve — rather than counter — the social revolution that is the goal of our Constitution.

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