Events & Issues
New Delhi, 25 June 2020
Rule of Law Index
RANK UNDER PANDEMIC
By Dr S. Saraswathi
(Former Director, ICSSR, New Delhi)
The Supreme Court has asked the government to
treat a writ petition filed in the court seeking setting up of expert panels to
find ways of enhancing India’s rank in the Rule of Law Index as a
“representation” and respond within six months. For, it is not a judicial
issue, but a matter for government consideration.
In the Rule of Law Index 2020 prepared by the
World Justice Project (WJP), India is given 69th rank among 128
countries and jurisdictions – not even among first half in the list. WJP is an
independent, multi-disciplinary organisation working for promoting the Rule of
Law (ROL) worldwide. It is a quantitative assessment tool designed to provide a
detailed and comprehensive picture of the extent to which those who govern various
countries are bound to act according to laws and regulations and prescribed procedures
and adhere to the rule of law in practice. An independent judiciary, individual
freedoms, and free press are considered essential ingredients of ROL. Such an
index with inputs from several countries regarding their practices can be a
valuable guide to advance in the Rule of Law.
Effective Rule of Law prevents arbitrary
decisions, and can reduce corruption and protect people from injustices. Whether
it can combat poverty as claimed by its advocates may be disputed by welfare
theorists. But, it is to be accepted as the foundation for justice, equal opportunity
and peace underpinning development, and fundamental rights for all citizens. It
guarantees an accountable government that holds law as supreme.
Rule of Law is being discussed from the days
of Plato and Aristotle. As a political concept, it can be traced to 16th century
Britain as a right of subjects against the divine right of kings. Its originator
was Sir Edward Coke, Chief Justice in the reign of James I. To John Locke, freedom
in society means being subject only to laws made by a legislature that apply to
everyone equally. British jurist AV Dicey
popularised the concept of Rule of Law as the corner-stone of parliamentary
democracy. No man is punishable or can be lawfully made to suffer in body or
goods except for distinct breach of law, and no man is above law.
In 2006, eight sub-rules comprising ROL were
added by Lord Bingham in the House of Lords.
Besides holding law as supreme, equal and accessible, he included protection
of essential and basic human rights, and compliance with the obligations of
international law. He mentions that the executive must use powers given to them
reasonably in good faith or proper purpose, and
must not exceed the limits.
WJP defines the Rule of Law as a system in
which following four universal principles are ingrained -- accountability of
government and its officials and agents under the law; clear, publicised,
stable and fair laws that protect fundamental rights including security of
persons and property; accessible, efficient and fair process by which laws are
enacted, administered, and enforced; and delivery of justice by competent,
ethical, and independent representatives and neutrals in sufficient number and
having adequate resources and reflecting the make- up of the communities they serve.
Present day rulers may not be claiming any
divine right, but may have the power to misuse, bend and misinterpret laws. The
powerful in the government and opposition may tend to take law in their hands for
personal/group advantage, and apply them selectively.
Human rights, equality, transparency, participation
and cooperation may suffer due to the exigencies of situations. There are
myriad ways in which well meaning laws may be violated in practice. Individual
cases of violations can be rectified, but deliberate bending of rules, manipulations in procedures, constant use of loopholes
and abuse of discretionary powers make a mockery of the ROL.
Our country is governed by laws, legally
established institutions, lawfully framed procedures, and well laid
administrative regulations that are definite, publicised and common to all. Rulers
are also subject to law and not above. Rule of Law is one of the basic features
of the Constitution and an integral part of the principles of
governance. Independent judiciary is the hallmark of the ROL.
Under Rule of Law, all members of a society,
including the governing group, are considered equally subject to existing law
of the land the contents and processes of which are publicly disclosed.
Equality and openness are two essential characteristics of the Rule of Law. The
term is closely associated with “constitutionalism” – a political situation and
not any specific law.
ROL is not just a weapon against
unquestionable State domination or against the whims and fancies of the ruling
groups; it is also a shield protecting the civil society. It has grown in
various forms apart from legal and procedural codes like permitting judicial
activism, public interest litigation, suo
moto judicial intervention on press reports and so on thus making justice
more easily available and accessible to the citizens.
WJP index is based on the results of a survey
of over 130,000 households and 4,000 legal
practitioners and experts to measure how the Rule of Law is perceived and
experienced worldwide. Countries covered have different political and juridical
systems, economic standing, ethnic-social characteristics, historical
background, population complexion, and domestic and international problems. But,
these are not taken into account in the preparation of the index as in any such
global index which goes by scores given on the specific indicators used in the
project.
Denmark, Norway, Finland, Sweden,
Netherlands, Germany, New Zealand, Austria, Canada, and Estonia are the top 10
and Zimbabwe, Pakistan, Bolivia, Afghanistan, Mauritania, Cameroon, Egypt,
Democratic Republic of Congo, Cambodia, and Venezuela are the bottom 10
countries in the index repeating 2019 record. Noteworthy is the removal of the
US from top 20 and Spain getting elevation. France declined from 17 to 20 in
rank. The UK stands at rank 13.
On the whole, the global trend is found to be
declining in the past three years. Last year, the fall was in fundamental
rights, absence of corruption, and particularly on constraints on governmental
power. Civil justice shows most positive movement over previous year. Regulatory enforcement has improved.
In the context of COVID-19 pandemic, nations undergo
crisis after crisis not only in health sphere, but in many human activities,
necessitating quick decisions and prompt actions. Emergency situations do not wait for normal
decision-making processes. The government may have to have powers to deal with
extraordinary difficulties with extraordinary powers. But, the powers and
exercise of the powers have to be consistent with the rule of law meaning
without arbitrariness.
Several countries have to make several adjustments
and sacrifices relating to personal rights while fighting the life threatening pandemic.
They have touched some liberties, affected transparency, and curtailed freedom
of movements, etc., to some extent necessary for controlling the disease. The
question whether the pandemic may be used as an excuse for restrictions on
personal freedom and economic activities has arisen as a political issue in
some countries. The foundations of the ROL are strong enough in our country to
survive the threats from the pandemic which are temporary. ---INFA
(Copyright, India
News & Feature Alliance)
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