Law is not needed because there are bad people in the world. Law is needed because people are people and sometimes they do bad things! Sometimes, they do such bad things that they have to be given some penalty for their bad behaviour.
So simply put, laws define what is ‘good’ and ‘bad’. And they define the penalty for ‘bad actions’. But what is critical to understand is that in India, as in most democracies, the definition of ‘good’ or ‘bad’ is based on certain universal human values and not on the basis of what one person or group of persons may think is bad or good. These universal human values are written down in the UN Declarations and also in our Constitution. These are the values of liberty, equality, justice and fraternity, backed up with a set of fundamental rights for all people. It is on this basis that laws in India are made.
Further, in our country, the authority of law pervades over everyone – all people and institutions – equally. This is the principle of the rule of law. It implies that every person is subject to the law, including lawmakers, government officials and the judiciary that interprets the law. The system of the rule of law is not dependent on who actually governs the country from time to time. Governments run by different political parties and leaders can come and go, but the rule of law is above all of them. Thus, it is said, “In India, we have rule of law, not rule of men”.
This is a simple explanation of the concept of the rule of law. However, for us as educationists, it is also critical to understand the theoretical application of the rule of law in India1. This is explained in different parts of our Constitution.
The principle of the rule of law is set down in the Preamble to the Constitution in that it lays down that the core objective of constituting India into a sovereign, socialist, secular, democratic republic is to secure equality, justice, dignity and freedom for all citizens.
Part III of the Constitution lays down the fundamental rights guaranteed to every citizen. These rights are strengthened by Articles 32 and 226 such that any citizen can directly approach the Supreme and High Courts in the case of any violation of their rights.
Thus, the Constitution holds foremost the human rights of all Indian citizens and directs that laws based on these rights will have supremacy over all people including the people who make and adminster the law. This is underlined by Article 13(1) which says that any law that is made by the Legislature has to conform with the Constitution or it can be declared invalid.
Article 21 provides further protection against arbitary action by the State.
Article 14 ensures that all citizens are equal and that no person shall be discrimiated against on the basis of sex, religion, race or place of birth.
Finally, the Constitution provides for separation of powers between Legislature, Executive and Judiciary such that Judiciary is independent of both the Legislature and Executive.
Successive court judgments have repeatedly emphasized the principle of the rule of law. Listed below are some key judgments that have clarified and highlighted this principle.
In Chief settlement Commissioner; Punjab vs. Om Prakash, it was observed by the Supreme Court: “In our constitutional system, the central and most characteristic feature is the concept of rule of law which means, in the present context, the authority of law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the matter into notice.”
In the case of Kesavananda Bharati vs. State of Kerala, the Supreme Court held that the rule of law is an essential part of the basic structure of the Constitution and as such cannot be amended by any Act of Parliament, thereby showing how the law is superior to all other authority of men.
How do we help students understand the rule of law?
A good exercise to help students understand the concept and need for the rule of law is as follows. This exercise is adapted from the Tragedy of Commons and used to explain interest groups, conflicts and need for the rule of law2.
Ask the participants to stand in a circle. Place different sized coloured paper balls in the centre of the circle. The number of balls should be three times greater than the total number of participants. Instruct the participants that when they are signaled, they have one minute to gather as many balls as they can from the circle. They can also grab the balls gathered by other participants. After a minute, observe that some participants will have collected an armful of balls, others may have not been able to gather any and some may have lost the balls they managed to collect. Ask the participants to show the balls they have collected and use that as the basis for a discussion about the ‘tragedy of commons’.
• What happened during the exercise? (Rushing, pushing, grabbing)
• Who gathered a greater number of balls and who did not? How? Why?
• What were you thinking while collecting the balls?
• How does this game relate to day-to-day life?
• Would it have helped if some rules would have been set before the game was played? What kind of rules would have helped?
• What would happen if only one or two people would have made the rules for all?
• What would happen if the rules would apply to only a few people and not all?
During the discussion, the facilitator can write down some of the rules that the participants have shared. After the discussion is complete, the facilitator can tease out the principles behind the rules e.g., equality, fairness, concern for each other, etc. These principles can be again written down on the board.
This exercise helps participants understand:
- When there are many people involved in any activity, some people’s interests will clash with others’ and some people can behave quite badly to serve their own interests.
- Since people can behave out of self-interest, laws cannot be made by one or few people.
- Laws have to be made on principles that are good for all. Those principles are like the principles on which the participants had based their rules. These principles are human values or principles.
- When law is applied to all people equally that system is called the rule of law.
Clarifying certain misconceptions around the rule of law
While it is amply clear then that the rule of law is a core principle of our Constitution, many times there is confusion around it. These misconceptions can be cleared with students through a few examples.
The rule of law and majority opinion
Sometimes the rule of law is confused with the rule of majority. For instance, let us consider this hypothetical case. Suppose all MPs decide that all women in India have to wear bindis. All of them (no exception) decide to pass such a law in Parliament. Will such a law be passed? NO. Because even if this proposal has full majority, it is against the constitutional principles of equality and freedom and therefore the rule of law will prevail, not the rule of majority.
Let us look at another hypothetical case. Let us assume that a rich and popular film personality has committed a crime. Then a poll is taken in the country and 90 per cent people vote that they believe he/she is innocent and all criminal charges against him/her should be dropped. Can the courts accept this popular view? NO. Because it is against principle of equality before law and therefore the rule of law will prevail, not the rule of majority.
The rule of law and community opinion
Sometimes the rule of law is confused with community opinion. For instance, let us look at a case where one member of a village/society decides to eat meat. All members of the village/society are vegetarian and they ask him to stop eating meat or they say they will stop talking to him. Can they do this? YES. Because all members have the freedom to talk to whoever they want to or not talk to whoever they don’t want to. But can they make him stop eating meat or ask him to leave the village or society? NO. Because it goes against the constitutional principle of freedom of that person to eat what he wants to eat and this principle applies to all people equally.
The rule of law and personal opinion
Sometimes the rule of law is confused with personal opinion. Let’s take another example. Suppose a person’s father is opposed to marrying any members of the family to people outside their religion. His personal opinion is that marrying outside their own religion is not right for various reasons. Now suppose one person from such a family wants to marry outside the religion. If he/she is of legal age to marry can he/she marry a person of his/her choice? Yes, he/she can. The father can explain his personal view, try and convince the person of that view but he cannot do anything illegal – threaten, take away legal rights or hurt in any way. He cannot say that since this is his personal view and family matter, he will not abide by the law. The rule of law applies to him and his son/daughter equally.
While the Constitution and its principles have been enforced nearly 70 years ago, our social life continues to be dominated by the norms and rules set by communities, religions and class. While the rule of law is a critical backbone of our entire governance system, it’s a struggle to challenge societal customs and people in authority. Further, the difficulties in accessing judicial systems make people wary of approaching courts and fighting for justice. In this scenario, it is critical to explain the concept and working of the rule of law to students so that they can understand and internalize it and question when it is not being implemented. This will help them, over time, accept and enforce it as a way of life.
2. Exercise credit – CORO Leadership Programme.