By Sarkaritel July 30, 2015 11:10


Global Rule of Law


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)

By Sarkaritel July 30, 2015 11:10