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Rule of Law By Joseph Raz: Application In India

Rule of Law is not a new concept. This idea was first recorded to have been conceived by Aristotle, way back in 350 BC. His work on the topic, in fact, is still considered influential. The trend continued with other eminent thinkers such as Sir John Fortescue, John Locke, Montesquieu, etc.[1] adding their thoughts, and contributing to the development of the concept.

The formal origin of the word is attributed to Sir Edward Coke, and is derived from French phase la principe de legalite’ which means the principle of legality.[2] In India, the concept has been traced as far back as the Upanishads, where it states that law is the king of kings. It is more powerful and rigid than the kings, and there is nothing higher than the law. The weak shall triumph over the strong and justice shall prevail by its powers.[3] This theory has further been espoused by Indian thinkers such as Chanakya as well, who maintained that the king should be governed by law.

The credit for developing the modern theory of Rule of Law, however, is given to British jurist A. V. Dicey. He expounded the theory in his book called Study of Law and Constitution. Dicey’s theory was based on three principles, commonly called the pillars: Supremacy of law, equality before the law and predominance of legal spirit. His ideas persist even today, though modern points of view have since emerged. Inherent in this theory is the idea that the British way of governance is a perfect example of rule of law.

However, Dicey was factually incorrect in this circumstance, since he completely ignored the Constitutional maxim the king can do no wrong, which effectively granted absolute privilege to the entire government by virtue of the Crown. He also ignored the statutes that granted discretionary powers to the government and outright ignored the growth of administrative law in Britain- which he claimed was against rule of law. All in all, Dicey’s theory was the reason the development of administrative law in the country began late in the day.[4]

Joseph Raz: An Introduction

Joseph Raz is an Israeli legal, moral and political philosopher. He is renowned for his conception of perfectionist liberalism and is also one of the most prominent advocates of legal positivism. He was a professor of legal philosophy at the University of Oxford Raz and is now a part-time professor of law at Columbia University Law School and at King's College London. He received the prestigious Tang Prize for rule of law in 2018.[5]

Raz’s Theory of Rule of Law

Joseph Raz gave his theory of rule of law in 1979 through his book The Authority of Law: Essays on Law and Morality. He draws heavily from FA Hayek’s work and analyses the concepts of law and morality in a similar fashion.

According to him, Hayek has formulated the most powerful ideal of rule of law, i.e., stripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge.[6]

Raz’s purpose, as he states in his book, is to analyze the ideal of the rule of law in the spirit of Hayek’s quoted statement, and to show why some of the conclusions he drew from it cannot be thus supported.[7]
In his work, Raz has enumerated some basic principles that emerge from a study of the idea of rule of law.

His eight principles may be enumerated as:

  1. All laws should be prospective, open, and clear
  2. Laws should be relatively stable
  3. The making of particular laws (particular legal orders) should be guided by open, stable, clear, and general rules
  4. The independence of the judiciary must be guaranteed
  5. The principles of natural justice must be observed
  6. The courts should have review powers over the implementation of the other principles
  7. The courts should be easily accessible
  8. The discretion of the crime-preventing agencies should not be allowed to pervert the law

Application of the Theory

  1. All laws should be prospective, open, and clear

    A law should not have retrospective action. One cannot be guided by a retroactive law as it did not exist at the time of action. This especially applies to criminal substantive law. Occasionally, it is known beforehand that a certain law will be enacted retrospectively. In such a situation, it would not be repugnant to the rule of law.

    The common law principle of ignorantia juris non excusat makes it a legal necessity for every person within India to have knowledge of the laws of the land – indeed, the courts do not consider ignorance of the law as a valid defence.[8]

    Therefore, the duty falls upon the state to notify the public of any enacted legislation. In India, a law is considered to be enacted once it is passed by Parliament and published in the Official Gazette.[9] The law must be open for all, easily accessible and adequately publicized. For the same reason, its meaning must also be clear. An ambiguous, vague, obscure, or imprecise law is likely to mislead or confuse at least some of those who read it.

    Example: Any and all amendments to substantive criminal law must have prospective action. This is so that an accused will not suffer increased punishment because of a change which occurred after he had committed the crime.

    However, the same does not apply to procedural criminal law, for the most part. A recent case sheds some light on the subject. In Mallikarjun v State of Karnataka,[10] the applicant was aggrieved by the fact that his appeal as victim was not allowed by the High Court on the grounds that the offence occurred prior to 31 December 2009 and the provision came into effect only from 1 Jan 2010. It was held that the right of appeal accrues at the time of delivery of judgement and hence the appeal should be allowed.
  2. Laws should be relatively stable

    For formal conceptions, having law is valuable because, regardless of the content of the law, legal rules that are properly framed, administered and adjudicated enable predictability of legal outcomes and people's reliance on the law, and hence serve people's autonomy interests.[11]
    The relative stability of law directly ties in with the procedures for amendment of the law. The easier the process, the more likely it is to be amended.

    Example: Like any other written Constitution, the Constitution of India also provides for its amendment in order to adjust itself to the changing conditions and needs. However, the procedure laid down for its amendment is neither as easy as in Britain nor as difficult as that of USA.[12] That is, the Indian Constitution is neither flexible nor rigid but a rather a fusion of both. Article 368 in Part XX of the Constitution describes the powers of Parliament to amend the Constitution and lays down the requisite procedure. It states that the Parliament may, in exercise of its constituent powers, amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure so laid down for the purpose. However, the Parliament cannot erode the basic structure of the Constitution by amending provisions which form part of it.[13]
  3. The making of particular laws (particular legal orders) should be guided by open, stable, clear, and general rules

    There must exist some stable, general rules to guide the making of laws. According to Raz, conformity with the rule of law is a matter of degree. It is morally valuable because, in serving the values of predictability and certainty, it reduces opportunities for arbitrary state action; and in doing so, it is capable of expressing respect for human dignity by taking seriously people's ability to plan their lives. He also argues that particular laws must be subject to general laws.[14]

    However, in the Indian scenario, it is a settled principle of law that the special law will prevail over general law. The scope of the Code of Civil Procedure, for instance, is such that where there is a conflict between the Code and a special law, the latter shall prevail (the Code being a general law). Where the special law is silent on a particular matter the Code applies, but consistently with the special enactment.

    Example: A recent case which dealt with the IT Act and IPC upheld this principle. In this case, the issue was whether the Appellant who has been discharged under Section 67 of the IT Act could be proceeded under Section 292 of IPC. The apex court held that the High Court had erred in its reasoning that though charge has not been made out under Section 67 of the IT Act, yet the Appellant could be proceeded Under Section 292 of IPC. The proceedings as such instituted against the appellant were quashed.[15]
  4. The independence of the judiciary must be guaranteed

    The concept of judicial independence is much more complicated and ambiguous than it seems. Judicial independence can be generally defined in terms of freedom – responsibility – to rule based on the facts and the law, and thus freedom from undue external restraints. This definition of judicial independence can accommodate both common law and civil law traditions.[16] Independence plays an important role in a system of governance, but it is reasonably compromised to some degree by concerns for judicial accountability.[17]

    Independence of the Judiciary is a salient feature of the Constitution of India.[18] This organ has often been named the custodian of citizens’ rights,[19] and in a federal system (such as India) it also acts as the balance-wheel by settling inter-governmental issues.[20] Separation of Executive from Judiciary is also dealt with under Art. 50, which is a Directive Principle of State Policy.

    Example: The basic principle of the right to a fair trial is that proceedings in any criminal case are to be conducted by a competent, independent and impartial court. In a criminal trial, offences are said to occur against the state rather than an individual. As such, the state functions as the prosecuting party and the investigating agency, the police, is but an agency of the state. It is therefore important that the judiciary is not burdened with executive influence and control, whether direct or indirect and is able to function in an impartial and fair manner.
  5. The principles of natural justice must be observed

    Natural justice is also known as common sense justice. Rules of natural justice are not in a codified form. These principles are imbedded or ingrained in the conscience of human beings. It supplies the omission made in codified law and helps in administration of justice. Natural justice is not only confined to fairness; it will take any shade and colour based on the context. Thus, natural justice apart from fairness also implies reasonableness, equity and equality. They are neither cast in a rigid mould nor can they be put in a legal straitjacket. These principles of nature are written in the heart of mankind – they are immutable, inviolable, and inalienable.[21]

    The principles of Natural Justice basically are of two kinds : i) no one should be condemned unheard (audi alteram partem), ii) no one should be a judge in his cause (nemo judex in cause sua). The principles of natural justice are fundamental aspects of the Constitution. Though they flow from Article 14 of the Constitution, the Supreme Court has held that these principles would exist even in the absence of such a provision.[22]

    Example: In India, the principles of natural justice are embedded in procedural law. One of the primary tenets for conducting a fair trial is compliance with the principles of natural justice. Another example is that of preventive detention. According to Article 22(5), the detainee is to be afforded "the earliest opportunity" of making a representation against the order of detention.
  6. The courts should have review powers over the implementation of the other principles

    Judicial Review is the power of the judiciary to interpret the Constitution and declare any law or order of the legislature and executive void, if it finds them in conflict the Constitution of India.[23]
    A democracy without some form of judicial review is considered deficient.

    Although the spread of judicial review of administrative law predates and does not track the same historicity of judicial review of legislation, the nexus between the two, and their cross-fertilization, has become evident. The European Court of Justice, tersely and compellingly, defined a central aspect of the very rule of law as requiring any legal act affecting the status of any legal actor as being potentially subject to review by a court. Where judicial review of an administration once obsessed with issues of intra and ultra vires and a weak form of rationality as criteria for substantive review, today both versions have placed proportionality as the central tool and characteristic of review.[24]

    Judicial review has two important functions, legitimizing government action and protecting the Constitution against undue encroachment by the government. It is a part of the basic structure of the Constitution of India.[25]

    Example: The biggest example of judicial review in India is the case of IC Golaknath v State of Punjab[26] wherein an eleven judge bench of the apex court, by a majority of 6 to 5, reversed its earlier decisions in Sajjan Singh[27] and Shankari Prasad[28] and declared that Parliament under Article 368 has no power to take away or abridge the Fundamental Rights contained in Part II of the Constitution.
  7. The courts should be easily accessible

    Everyone should be able to access the judicial machinery of the country as and when necessary. The central position of the courts within this machinery makes their easy access of paramount importance. Long delays, excessive costs, etc., may effectively turn the most enlightened law to a dead letter and frustrate one’s ability effectively to guide oneself by the law. Right to access justice[29] and right to speedy trial[30] are both fundamental rights under Article 14 and 21 of the Constitution of India. Legal aid is also one of the prominent methods through which attempts are being made to increase accessibility of the lay man to the courts.

    Example: Order XXXIII of the Civil Procedure Code is essentially a provision for providing legal aid to those who are unable to access justice due to high litigation costs. Legal Aid by itself is a topic for debate and deliberation in India, its need being recognized now more than ever. This provision under the Code also protects natural justice by enabling all citizens irrespective of caste, creed, occupation, economic background to stake claims in the court of law.
  8. The discretion of the crime-preventing agencies should not be allowed to pervert the law

    It is not just the court which, through judicial activism or otherwise, may pervert the law. The actions of the police and prosecuting agencies can also have a similar effect. For instance, allowing the prosecution to decide which cases to prosecute or which people to prosecute is highly unfair and goes against one of the very basic tenets of society today – the right to equality.[31] It is, of course, a well settled principle that discretion leads to arbitrariness, and arbitrariness stabs at the very heart of Article 14.[32]

    Example: When any offence has been committed, the police is bound by law to register the case by means of a First Information Report (FIR). Under section 154 of the Code of Criminal Procedure, in case the police officer in-charge refuses to register an FIR, the person so aggrieved may send the relevant information to the Superintendent of Police who will then proceed as needed.[33]

Conclusion
Rule of Law has undergone many trials in India. The shape and form that it has today is the product of many, many decisions taken by learned men over the years, and the path has not been straight. This essay has analysed the formal concept of Rule of Law as given by Joseph Raz. His eight principle virtues have been examined in light of the Indian scenario. What emerges is the fact that India does, for the most part, adhere to Raz’s ideal but somewhere the unique Indian character has shown through. The country has adapted and adopted the principles to suit its own purposes, forming a mixture that is unique – for better or worse.

End-Notes:
  1. Jeremy Waldron, The Rule of Law, The Stanford Encyclopedia of Philosophy, (last modified 1 July 2016); https://plato.stanford.edu/archives/fall2016/entries/rule-of-law
  2. Bhavani Kumar, Rule of Law in India,(last modified 16 Nov 2014); http://www.lawctopus.com/academike/rule-of-law-in-india/
  3. Varsha, Rule of Law in India & UK, (last visited 22 July 2019); http://www.legalserviceindia.com/article/l457-Rule-of-Law-in-India-&-UK.html
  4. MP Jain & SN Jain, Principles of Administrative Law 14 (Amita Dhanda, ed., 7th ed. 2017)
  5. Joseph Raz, https://sites.google.com/site/josephnraz/home (last revised 8 June 2019)
  6. Friedrich Hayek, The Road to Serfdom 54 (1944)
  7. Joseph Raz, The Authority of Law: Essays on Law and Morality 211 (1979) (Oxford Scholarship Online, 2012) (ebook)
  8. Oxford Reference, Ignorantia Juris Non Excusat (last visited: 24 Jul 2019) https://www.oxfordreference.com/
  9. Parliament of India: Rajya Sabha: Council of States, Legislative Functions of Rajya Sabha, (last visited: 24 Jul 2019), https://rajyasabha.nic.in/rsnew/legislation/introduction.asp
  10. Mallikarjun v State of Karnataka, Crim. Appl. No. 1281 of 2018, Supreme Court
  11. Jeremy Waldron, The Rule of Law and the Importance of Procedure, New York University Public Law and Legal Theory Working Papers, Paper 234 (2010), http://lsr.nellco.org/nyu~plltwp/234
  12. DD Basu, Introduction to the Constitution of India 177 (22nd ed., 2015)
  13. JN Pandey, The Constitutional Law of India 776 (49th ed., 2012)
  14. Aleardo Zanghellini, The Foundations of the Rule of Law 218, 28 Yale J.L. & Human. (2016)
  15. Sharat Babu Digumarti v Govt. of NCT of Delhi, Crim. Appl. No. 1222 of 2016
  16. Brian K. Landsberg, The Role of Judicial Independence, 331, 19 Pac. McGeorge Global Bus. & Dev. L.J. (2007)
  17. MP Singh, Securing the Independence of the Judiciary, 246 Ind. Intl & Comp. L. Rev. (2000)
  18. MP. Jain, Indian Constitutional Law 19 (7th ed, 2014)
  19. NC Chatterjee, The Judiciary and Civil Liberties, The High Court of Judicature at Allahabad, Centenary Celebration 1866-1966 (Vol-II) 4 (25 Nov 1966), http://www.allahabadhighcourt.in/
  20. Supra note 11
  21. Brijesh Kumar, Principles of Natural Justice, IJTR Journal July-September (1955)
  22. Union of India v Tulsiram Patel, (1985) 3 SCC 398
  23. Ashutosh Srivastava & Puja Srivastava, Judicial Review in India: An Analysis, (2014) https://ssrn.com/abstract=2705279
  24. Doreen Lustig & JHH Weiler, Judicial Review in the Contemporary World—Retrospective and Prospective, Intl. J. Const. L. 315 (Vol. 16:2, 2018)
  25. Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461; L. Chandra Kumar v Union of India, AIR 1997 SC 1125; Waman Rao v Union of India, AIR 1981 SC 271; Minerva Mills Ltd. v Union of India AIR
  26. 1980 SC 1789; Indira Nehru Gandhi v Raj Narnia 1975 AIR 865.
  27. IC Golaknath v State of Punjab, 1967 AIR 1643
  28. Sajjan Singh v State of Rajasthan, AIR 1965 SC 845
  29. Shankari Prasad v Union of India, AIR 1951 SC 458
  30. Anita Kushwaha v Pushap Sudan Transfer Petition, (C) No. 1343 of 2008
  31. Hussainara Khatoon (No. 1) v Home Secretary, State of Bihar, AIR 1979 SC 1360.
  32. India Const. Article 14
  33. Maneka Gandhi v Union of India, 1978 AIR 597
  34. RV Kelkar, Lecture on Criminal Procedure 66 (KN Chandrasekharan Pillai, ed., 6th ed., 2017)

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