Role of Courts in Upholding Rule of Law
Role of Courts in Upholding Rule of Law
Role of Courts in Upholding Rule of Law
‘ROLE OF COURTS
IN UPHOLDING
THE
RULE OF LAW’
A paper by
By
Hon’ble Justice A.V.Chandrashekar,
Judge,
High Court of Karnataka
2
people call it as an ‘unruly horse’.1 But the concept of rule of law is not a
and Lectures in Universities. One may not be able to precisely define rule
notion. It is worthy to note that in the 1996 Constitution of South Africa the
supremacy of the Constitution and the Rule of law have been declared as
values.
John Adams used the historic phrase “a government of laws and not
applicability should govern the conduct of people and law should be the
1
P.P.Rao, “ Rule of Law and Human Rights in India Today”, in Rule of Law and Human Rights in
India: Essays in Honour and Memory of Justice H.R.Khanna, edited by Dr.L.Malik, New Delhi,
Universal Law Publication, 2012, p.38
3
about the principles underlying the concept of rule of law and it has a
former Judge, Hon’ble Supreme Court of India, who has defined Rule of
belief in the human rights and human dignity throughout the globe.2
necessarily have the sanction of law.3 As such, the concept of Rule of Law
without the authority of law. It is always said that Rule of Law ensures
Rule of Law runs like a golden thread in the entire Indian Constitution.
bill of rights and this is more evident from the mandate of Articles 14, 19,
2
www.brandeis.edu/programmes/southaseanstudies/pdf visited on 2nd March
2014 at 7.30pm
3
M. P. Jain, Indian Constitutional Law, 6th ed Nagpur: Lexis Nexis Butterworths Wadhwa, 2010,
p.1081
4
Supra "ote 2
4
20, 21, 265 and 300-A. Article 14 ensures equality before the law or equal
protection of the laws and Article 19 mandates that the restrictions imposed
Supreme Court has specifically held that Rule of Law is a basic structure of
the Constitution and that this basic structure cannot be abolished even by a
5
AIR 1973 SC 1461
6
AIR 2007 SC 861
5
Supreme Court has once again reiterated the majesty of rule of law in
law and questioning the executive action of supporting Salwa Judum in the
concept which also takes within its ambit all human rights of all
a close link between the Rule of Law and human rights. 8 If rule of law is
7
(2011) 7 SCC 547
8
Supra "ote 3, p.8.
6
All of us know very well that in large parts of Europe which were
mysterious disappearances were writ large. Nazis in Germany did all these
under the laws made by the law makers. Therefore, the concept of Rule of
Law necessarily means only such laws which uphold the human rights and
Legislatures have the power to make laws but subject to the express
demarcation has been made about the matters on which the central
legislature and state legislatures could make laws. Any law that breaches
power.
It is said that the three organs of the State have powers and they are
separated. In reality, they are not powers but in its strict sense separation
of functions. There is a system of checks and balance since any law passed
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a law and similarly, Parliament has the power to impeach the President for
any executive action without the support of a valid law would be void more
judiciary does not treat laws which are vague or vague administrative
guidelines favorably.
independent judiciary to review the decisions of the other two organs of the
Constitution states that state shall not make any law which takes away or
Though the term “Rule of Law” is not expressly indicated in the text
provisions and the judicial decisions of the Apex Court. This rule of law is
which have posed threat to build a society based on strong rule of law
framework.
The concept of rule of law does not find its fulfillment by mere
law though enactment of law is, no doubt, essential. The concept of rule of
other global players play a dominant role, more particularly, due to the vast
resources they have and the several activities they undertake and functions
they perform. Their activities and functions have serious repercussions and
thus affect the basic human rights of the people in developing countries
rights.
10
B.Z. Tamanaha, On the Rule of Law: History, Politics, Theory, Cambridge: Cambridge
University Press,2004, p.101
9
the respect for the right to work, and the right to just working conditions
players are exempted from constraints, the Constitutional Courts will have
providing exemption, there should not be any arbitrariness and there cannot
be any scope for decision making without consultation or open debate with
are lost and serious damages are caused to people and property. Ours is
mutual respects. Rule of law is not one way traffic and it places restraints
reality in governance and in our lives, not only laws are required but laws
with good content are required and a rule of law culture is a dire necessity.
11
Dr.Justice Arijit Pasayat, “ Terrorism and Threat to The Rule of Law in India”, (2010) 6 SCC (J)
p,10.
10
Judiciary are expected to work within their own spheres. One organ should
not try to encroach the area of the other since the borders of each organ are
making decisions must be slow unless policy decisions have no regard for
in the decisions leading to confusion will come in the way of the rule of
law. This assumes importance as decisions of the Apex Court are virtually
are being filed before the Constitutional Courts and even Presidential
12
Lord Bingham, “ The Rule of Law”, Cambridge Law Journal,66(1),March 2007,p.70
11
references are made to the Apex Court seeking advice. One such latest
auction.13
1992 about the existence of an old temple structure in the disputed site at
Ayodhya.14 Thus, the authorities at the highest level who are expected to
take bold decisions at times abdicate their responsibility and thus shift their
inadequate; but still common man has great confidence in the institution of
judiciary right from the Courts at the cutting edge i.e., the Magistrate
13
(2012) 3 SCC 1
14
AIR 1995 SC 605
12
discretion vested in them under various statutes or under Articles 226 and
227 of the Constitution, as the case may be, and under Article 32, a power
much that there should not be any scope for anybody to feel that judiciary
three dimensions-
Article 32 and the writ jurisdiction under Article 226 with the High Courts.
With the advent of public interest litigation, Articles 32 and 226 have been
15
Justice K.G.Balakrishnan, “ How To Check The Erosion of The Rule of Law”, (2011) 1 SCC (J)
p.3
13
remedies such as “injunctions” and “stay orders” into what are essentially
provisions have paved way for striking down statute as a whole or striking
elected body and therefore, it is not accountable to the people. But by and
large, people in our country are satisfied with the Constitutional Courts
invoking the process of judicial review. Only caveat to be added is that, the
Judges should not use their personal discretion to direct action in areas in
protector of the Constitution and this scheme works smoothly as long as the
decisions of the Apex Court are binding on all the High Courts and Courts
rendered which have precedent value under Article 141 of the Constitution.
of the Constitutional Courts invoking Article 226 and Courts of the District
Constitution.
country are roughly about three (3) crores. Number of Courts in India is
tackle not only the disposal of cases but also mounting of arrears. In few
big States like Madhya Pradesh, Uttar Pradesh and Bihar, Criminal cases
15
Laboratories, there will be delay in criminal cases. Speedy and fair trial in
Malimath Report Committee Report. For the first time, the word “victim”
finds a place in the definition of clause 2(w) of Cr. P.C. Judges in the
been doing their best in imparting continuous legal education not only on
Constitutional Law and traditional and substantive and Procedure laws like
Personal laws, Transfer of Property Act, Specific Relief Act, Contract Act,
Evidence Act, Limitation Act, Indian Penal Code, Civil and Criminal
Procedure Code but also special laws like Arbitration & Conciliation Act,
Rights, Consumer Protection Act, Conflict of Laws, Direct and Indirect Tax
long journey till it is disposed off. Even a civil case on institution, takes on
an average 3-5 years in the trial Court, 2-4 years in the first appellate Court
and 3-4 years in the second appellate Court. The percentage of civil cases
comparatively lesser in the sense that most of the litigants will be satisfied
with the result in the original court. Hence disposal of civil and criminal
courts at the appellate level within a reasonable time will further enhance
Compensation Cases, cheque bounce cases u/S 138 of the N.I. Act and
compoundable criminal cases are being referred to Lok Adalaths and are
Authority with the Hon’ble Chief Justice of India as its Patron, has given
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call to organize Lok Adalaths on a large scale under the title “Mega Lok
Adalath” throughout the Country and they have been highly successful..
Hon’ble Apex Court has gone even to the extent of ruling that even
Resolution Mechanism.
The endeavor of the author of this article is that Courts also play
almost all the places where Courts function. Even various Legal Services
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which values the maintenance of the rule of Law. The Courts are an
Bibliography
Rao P. P., “ Rule of Law and Human Rights in India Today”, in Rule of
Law and Human Rights in India: Essays in Honour and Memory of Justice
H.R.Khanna, edited by Dr.L.Malik, NewDelhi,Universal Law
Publication,2012
Dr. Justice Pasayat Arijit, “Terrorism and Threat to the Rule of Law in
India”, (2010) 6 SCC (J)
www.brandeis.edu/programmes/southaseanstudies/pdf