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New Delhi, 28 July 2015
Global Rule of
Law
INDIA’S DISMAL PERFORMANCE
By Dr S Saraswathi
(Former Director,
ICSSR, New Delhi)
The world recently celebrated 800 years of Magna Carta, the
charter which opened the Rule of Law (ROL) in England. This is an excellent
context to survey our performance on various parameters of this basic principle
governing freedom, equality, and justice for all citizens.
The present century, in continuation of the last, represents
popular aspirations all over the world for freedom, development, democracy, and
human rights. The principle of ROL has expanded steadily from the concept of
replacing arbitrariness in governance by adoption of prescribed law and
regulations towards a system of various rights and ethical commitment to public
life. It is much wider than a formal legal order. A British judge once remarked
that observance of ROL “is the nearest we can get to a universal secular
religion”. So wide is its connotation.
The World Justice Project (WJP), a US based non-profit organisation
founded in 2006, has just released its 5th annual
report on the Global Rule of Law Index 2015 which reveals how the ROL is
experienced by the citizens in various countries around the world. This report
has covered 102 countries and has drawn its findings from a survey of around
100,000 respondents taken from three big cities in each country. Experts were
also included along with common citizens in the survey. WJP professes to
provide original, impartial data on people’s experience of the ROL.
India’s performance may be considered as
“below average” as it ranks 59 in the list of 102. It is placed below some of
our neighbours – Nepal at
No.48 and Sri Lanka
at No.58. But, in the South Asian Region
of six countries, India
is ranked No. 3. Among the group of 25 lower middle-income countries, India stands at
No.10. Denmark
holds the first rank closely followed by many European countries.
The index assesses the performance of these countries in
eight categories – constraints on government powers, absence of corruption,
open government, fundamental rights, order and security, regulatory
enforcement, civil justice, and criminal justice. Each category applies several
indicators for assessment comprising 47 sub-factors. In each country, three big
cities are surveyed and in each city, 1,000 common citizens and some local
legal experts were included.
India has fared well in criminal justice
holding 44th rank globally and first rank among South Asian
countries. But, its dismal performance in civil justice in holding 88th
rank globally and 19th in South Asia
is really a cause for concern.
The Constitution is acknowledged as the supreme law of the
land in democracies. It creates the authorities and entrust them the power to make
and enforce laws. The authority of the Constitution applies to all authorities
of the government and all citizens and no one has immunity that is not
conferred by law upon him/her. This is the starting point of Rule of Law or
Supremacy of Law. From this has developed other elements of this foundational
idea of democracy.
Under the impact of historical developments and progressive political
ideals, the meaning of Rule of Law is no longer confined to building legal
institutions, and framing codes or establishing judicial courts and prescribing
legal procedures. All these are still important and indispensable ingredients
of ROL which, however, keeps extending its frontiers on all sides. Today, ROL
is not just a juridical principle.
Performance on the Rule of Law includes the extent and
quality of its practice. It exists only when and where it is practised.
Therefore, attainment of the goals is an essential aspect of the presence of Rule
of Law. The more the gap between the legal position and the actual situation,
the lower is the rank in the index.
In the present order, these goals comprise ensuring legal
equality, law and order, predictable and efficient justice, respect for human
rights, and subordination of the political authority to the law of the land.
The global index now released by the WJP follows four basic principles – accountability
of government and other agencies under law; a system of clear, publicized, stable and just
law and its even application; accessible and efficient process of enactment of
laws; and timely delivery of justice by competent officials and independent and
neutral representatives.
Effective ROL is the hallmark of “good governance”. Its
impact is said to be unlimited extending to different directions like reducing
corruption, combating poverty and disease, and protecting people from various
kinds of injustices. The WJP report states that where the ROL is weak,
medicines fail to reach health centres, criminal violence goes unchecked, laws
are applied unequally across societies, and foreign investments are held back.
On the positive side, ROL is the very foundation for peace
and harmony, opportunity and equity in development, and for universal human
rights. Rule of Law signifies a responsible and accountable government. It
fosters trust and confidence between authorities and citizens, and between
citizens of different countries.
ROL has replaced “discretion” in many areas. Where
discretion is necessary and allowed, it has to be exercised on the basis of
justice. Discretion does not mean
arbitrariness or the will of an individual however big he/she may be. It should
be based on reason, on some real justification.
Corruption, nepotism, injustice, deprivation and other such
social maladies are direct outcome of lack of ROL and/or failure to implement
ROL. They flourish wherever there is lack of transparency.
ROL today has grown transnational and as a globalizing
notion. It is embedded in the principles of global social policy and
regulations. It is expected to govern trade relations and political groupings.
India is noted for a good legal and
judicial system. Unfortunately, Indian politics has promoted corruption,
nepotism and misuse of official machinery in such a way as to dilute its Rule
of Law. Judicial delay strikes at the roots of the ROL.
Ideologically, democracy and ROL are said to be good
partners each reinforcing the other. Democracy, no doubt, provides safeguards
against anarchy and arbitrariness. But, in practice, democratic institutions
are sometimes used to subvert law and legal procedure. Parliamentary majority,
for instance, has helped declaration of Internal Emergency in 1975. Electoral
system has unleashed money power and muscle power which are antithetical to the
goals of Rule of Law. Judicial delay and the cost of going through litigations
have effectively undermined the value of ROL firmly established on paper.
In India,
ethical standards in legal profession are not high in popular perception. Majority of civil disputes particularly are
settled outside the court and not necessarily in accordance with legal rights
and obligations. Continuance of khap panchayats
and their crude judicial decisions despite several strictures from the law
courts take the ROL backwards.
One may argue that global ranking system ignores unique
local conditions of various countries and generally goes against developing
nations. It may be true to some extent, but cannot be the reason to ignore the
findings. Indeed, reports in our daily newspapers are enough to expose the
shortcomings of our legal system, law enforcement machinery, and judicial
system to awaken us to the urgent need for comprehensive reforms. ---INFA
(Copyright,
India News and Feature Alliance)
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