The rule of law and the concept of human rights and freedom are coexistent and they are inextricably interwoven. The promotion and vindication of human rights is dependent on observance of rule of law to be nourished and nurtured by the State and civil society. However high you may be, the law is above you.
The rule of law, individual liberty and human rights are co-existentand inseparable. The protection and vindication of human rights is entirely dependent on rule of law. If there is decline, erosion and infraction of rule of law, the human rights will be at a stake. Rule of law should not be equated with law and order.
Breakdown of law and order is a temporary feature. Breakdown of rule of law would mean the collapse of good governance and may tend to breakdown of Constitutional machinery in a State. It symbolizes an enlightened society’s quest to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence.
Therefore Edmund Burke had rightly said that law and arbitrariness are sworn enemies. The basic tenet of the rule of law is however high you may be, the law is above you.
That imparts the element of non-discrimination to the concept of the rule of law. It is gratifying to note that in the preamble of our Constitution, one of the basic features is ‘rule of law’ which has been upheld by the apex court in the famous Keshavanand Bharati’s case, popularly known as Fundamental Rights case. Therefore, the law must have necessary component of basic human rights and dignity of every person. It has a global reach and dimension.
The fundamental rights of the citizens and the Directive Principles of State Policy have been enshrined in the Constitution. Although rights in Part-IV are in the nature of socio-economic rights, nevertheless they are fundamental for the governance of the country. The Supreme Court in many judgments has given primacy to the directive principles.
Rights without corresponding duties and obligations on the part of citizens will make these rights meaningless. Duties of the citizen towards State and civil society will strengthen the majesty of rule of law. This would pave the way for a just and egalitarian social order based on the principles of liberty, equality, fraternity and protection of human rights.
law is the expression of the general will of the society. It regulates human conduct, his activities and his relationship with fellowmen, State and civil society. law makes a man disciplined. Pandit Nehru has said rule of law runs close to the rule of life. It is worthy of mention that courts of law while settling and deciding cases of the parties are also guided by the principles of natural justice, equity, good conscience and fair play, besides adopting due procedure laid down under the law.
There has been perceptible change in the arena of legal system and of late, cases are decided by way of alternative methods like mediation, conciliation, arbitration and through the instrumentality of lok Adalat which is called compendiously, alternative dispute resolution (ADR) mechanism. Significantly, another projectile has been added to the justice delivery system and now cases are decided at the grass-root level without reference to the court by way of pre-litigation settlement.
It is gratifying that human elements have been infused into the arena of administration of justice and these are applied in appropriate cases by the court of law and more particularly in cases involving labour /industrial disputes, matrimonial cases, motor accident claims and workman compensation cases etc.
Right to free legal aid and assistance to an indigent person and other entitled categories of persons at the State’s cost has become a part of the fundamental right under the mandate of Article 39(A) read with Article 14. This has helped greatly to operate a legal system based on equality before law and equal protection to
the laws.
Similarly, right to speedy trial has become a part of fundamental right and the Supreme Court in number of judgments has laid down the law in this regard to take up trial on fast track basis.
It is heartening that Article-21 of the Constitution speaks in laudable terms that “no person shall be deprived of his life and personal liberty except according to the procedure established by law”. The ambit and reach of the word “life and liberty”, employed in Article-21 has now an expanding horizon touching all aspects of human life for a dignified existence.
It has reminded the executive and legislature to discharge their Constitutional obligations in protecting rights of citizens and in particular to uphold human rights. In a land mark judgment in Maneka Gandhi’s passport impounding case, the Supreme Court ruled that a person can be deprived of his life or personal liberty if two conditions are complied with. First there must be a law and secondly, there must a procedure prescribed by that law, provided that the procedure is just, fair and reasonable.
The court while over-ruling its earlier decision on the subject, in the case of AK Gopalan widened the scope of the word ‘personal liberty’ employed in Article-21 of the Constitution.
The expression ‘personal liberty’ in Article-21 is of widest amplitude and it covers a variety of rights which would go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and are given additional protection under Article-19.
The court laid great emphasis on the procedural safeguardsso as to satisfy the requirement of natural justice.
In this backdrop for safeguarding human rights, the preamble to Universal Declaration of Human Rights has declared emphatically that
“it is essential if man is not to be compelled to have recourse as a last resort to rebellion against tyranny and oppression that human rights should be protected by rule of law”. Therefore, “the right to life”, to be protected from physical violence and torture, the right to equal treatment before law and freedom of speech and assembly are some of the basic human rights.
This area demands strong individual approach and mandates that no Government is allowed to interfere in the private life of its citizens.
lord Atkin has said “in accordance with British Jurisprudence, no member of the executive can interfere with the liberty or property of a British subject except on condition that he can support the legality of his action before a court of Justice.” In our Constitution, the writ jurisdiction conferred on High Courts act as safety valves for the protection of human rights, whenever encroached upon by the legislature or executive.
In view of the in-built safeguards in our Constitutional system the Supreme Court stands like a sentinel, to protect the life and liberty of the millions. In the process it is maintaining balance of power amongst the three organs of the State i.e. legislature, Executive and Judiciary.
After the case of Maneka Gandhi, the Supreme Court had expanded the frontiers of human rights, acquiring immense power of judicial review of administrative action and legislative measures in its anxiety to vindicate and uphold the rights of the individual.
In the famous judge’s transfer case of SP Gupta, the Supreme Court held “the power of judicial review which has been conceded by the Constitution to the judiciary is the safest possible safeguard not only to ensure independence of judiciary but also to prevent it from the vagaries of the executives”.
Now Article-21 has emerged as the Indian version of the American concept of ‘due process of law’ and has become the source of many substantive rights and procedural safeguards to the people.
The word personal liberty has been given a very wide interpretation, covering a variety of rights and its deprivation shall be only according to procedure established by law, but the procedure has to be fair, just and reasonable. In the case of S Jaisinghani, the Supreme
Court emphasized that ‘absence of arbitrary power is the first essential of rule of law upon which Indian Constitutional system is based’.
The court while speaking on the golden thread of rule of law in the case of AK Kraipak said, “the rule of law pervades over the entire field of administration and every organ of the State is regulated by rule of law.
The concept of rule of law would lose its vitality, if the instrumentalities of the State are not charged with the duty of discharging their function in a fair and just manner”.
Concluding, law has become an instrument of social engineering which contains elements of progress and social solidarity. Ours is a democratic polity based on rule of law and respect for human rights.
Therefore, law has not only been a restraining force but has positive contents to serve societal needs. Before parting, it would be appropriate to close up with the sage advice of Chief Justice John Marshal of United States Supreme Court.
He said: “We must never forget that it is a Constitution we are expounding .. intended to endure for ages to come and consequently to be adapted to the various crisis of human affairs. Thus, Constitutional values are relevant for all times but each age has to apply them to its needs, in the light of its own perception and judgment.”
(The writer is a former Special Judge, CBI, Bhubaneswar and a former Professor of law, lal BahadurShashtri National Academy of Administration, Mussoorie)