Defining the ‘rule of law’: India’s narrative to the idea of Justice

​​​Devarshi Sen Deka

The idea of the ‘rule of law’ has many different dimensions in various jurisprudences, but this idea of the ‘rule of law’ is strictly defined in the context of the Constitution of India and the nation- state of India. The idea of a constitution was first born in the year 1895. This thought process of a written constitution was envisioned by Lokmanya Balgangodhar Tilak. He termed it as the “The Constitution of India Bill 1895”. The ‘rule of law’ and the invariable attainment of independence for a nation from the colonial master have to be weighed in as to determine what was lost and what was gained for India, and its parable of defining the Constitution and the idea of justice. India has a parliamentary form of governance, where We the People with inflexible reasoning have exercised their powers to implement new amendments or a law to redress their issues. The model for the governance of India was inspired by the British system of parliamentary democracy, but the Constituent Assembly thought it as otherwise. Therefore, the intersection between the ‘rule of law’ and the Indian state has to be only perused by the Judiciary. What this parable of intersection leads to people’s emancipation for more liberty and freedom. As, Amartya Sen has described ‘democracy’ through reasoned public discussions. He has also reiterated his idea of justice, through the means of ‘freedom’. His understanding is that if a person is allowed to have more choices of opportunities to enhance his life, then his freedom is to be counted in the creation of a just society. Whether the intersection has provided ‘freedom’ for the People of India is a question, which has a never-ending debate and philosophical dialogue.

India’s constitution has often been cited and said that it is the ‘rule of law’ where there are established guidelines for governance in her own social limitations. The idea of ‘freedom’ for a creation of a ‘just society’ depends wholly upon the Courts of India. A just society could only enhance freedom. It is in the case of Budhan Singh vs Babi Bux (AIR1980) the Apex Court had established an important principle in construing ‘suggested construction of a statute’. The Supreme Court had pronounced that “ …where the suggested construction of the statute operated harshly, courts in India would assume that the apparent or suggested meaning of the statute was not the one intended by the lawmakers-the reason being that it was contrary to Justice.” The idea of justice can seldomly be understood under Article 147 of the Constitution of India, where the principles of individual opportunities (like guaranteeing and securing citizens of India with freedom of expression, belief, faith, worship, adequate measures eliminating inequalities of caste and gender) allowed the Constituent Assembly to draft binding guidelines for the government to enact laws with the principles as a torchlight. The Constituent Assembly had processed a manner in which the government should be guided with strong ideas of justice. The ideas of Constituent Assembly has their ideas preserved by the courts. This continuing process is the outcome of the independence of the judiciary. In Article 142 (1), it states that the Supreme Court has the right ‘ to pass such decree or make such order as is necessary for doing complete justice in any cause or manner.’

The Constitution of India is a living document. The Apex Court has preserved the sanctity of it. The Constitution itself allows the ‘rule of law’ to progress through the Apex Court, the guardian of India, and has been preserved by the judges (only on rare occasions). So, is the ‘rule of law’ is a means to justice or just society? The answer to the question is that as Amartya Sen beautifully raised that in order to attain a just society, it has to have practical reasoning, which includes the ‘ways of judging how to reduce injustice and advance justice, rather than aiming only at the characterization of perfect just societies’. The Constitution has its progression with new amendments to fit into the shoes of the contemporary needs of the We the People. The Preamble of the Constitution establishes Justice its nature.

The ‘rule of law ‘ always includes judges. Judges dissents and comments leave an impeccable impression upon the society of India. The Indian judiciary has been called into my accounts to question itself as to whether it should uphold the right of the state or the individual’s rights? The Judges sometimes go beyond the literal intention of the Constitution, but to adept itself into a new time as if the Constitution is written today. “The rule of law” shall ever be changing, and the apparatuses may vary in order to introspect even if it is required to achieve Justice; reasoning should always play at the centre of the issue, and which the People know about it through dialogues.

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Devarshi Sen Deka

A socio-economic and legal critic from third world approach to international law.