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On Wednesday, June 20, 2021, Justice PD Desai Memorial Lecture on Rule of Law by Hon'ble Chief Justice of India N. V. Ramana where he spoke at a virtual function.

The event started with Senior advocate Suresh N. Shelat, Gujarat High Court, delivering the welcome address, He welcomed various judges, former judges, lawyers, and academicians present for the event.

While introducing Chief Justice Ramana, Adv. Suresh Shelat highlighted a few notable contributions by him. He cited his supplementary opinion on a case related to RTI, judgement delivered in the Anuradha Bhasin case, related to internet shutdowns, and Dharampal case, amongst the others.

Addressing everyone present, Chief Justice started the session on Rule of Law. Acknowledging Justice Desai on his humanitarian efforts and a fierce less judge he started the session.

In the initial part of the session, he explored the meaning of law. He stated that;

“Law is a tool of social control, backed by the sovereign power”

While hinting at the double edginess of such a definition he stated that, such definition can be used, “Not only to render justice but also to justify oppression. Renowned scholars have argued that law cannot be classified as law unless it imbibes itself with ideals of justice and equity. An unjust law might not have same moral legitimacy of just law but it might still command the obedience of certain sections of society through determent of others.”

He further stated that,

“What is clear is both these thoughts highlight certain facets of what is meant by the term law. Any law backed by sovereign must be backed by ideas of justice. Only a state backed by such law can be said to have the rule of law.”

He used the example of pre-independence India to distinguish further. Taking into account the manner in which British enacted various laws to further their economic and political interest at the cost of the colonized, he stated that,

“The British used law as a tool for political repression, enforcing unequivocally on the parties. Different set of rules for British and Indians. It was an enterprise famous for rule by law instead of rule of law.  It aimed at controlling Indian subjects. Judiciary lost their significance, as they were administered keeping best interest of the colonial power rather than what was just or legal.”

He also mentioned the case of Raja Nand Kumar from 1775. The case, he mentioned is also infamously known as “judicial murder of Raja Nand Kumar”. “Raja Nand Kumar had accused the then, Governor General of Warren Hastings of receiving bribes. Shortly after he himself was found guilty of the charges of forgery. He was awarded capital punishment," mentioned Justice Ramana.

Noting the peculiarities of such a trial he noted the arbitrary treatment by the British. Instead of being tried by a local court he was tried by British court. Justice Ramana mentioned that, historians had later noted that Raja Nand Kumar payed the price of accusing Warren Hastings.

Going futher he stated that, “Around 150 years later, there was growing consciousness, there was growing about values of liberty, equality, justice and fraternity," he added.

“As part of persistent and organized independence campaign people were made aware about the unjust and oppressive laws of the colonizers.”

Citing Mahatma Gandhi’s famous trial during his tussle with the British government, Chief Justice quoted that:

“Little do realize that the Government established by law in British India is carried on for this exploitation of the masses. In ninety-nine cases out of hundred, justice has been denied to Indians as against Europeans in the courts of India."

He further added, “In my opinion, the administration of the law is thus prostituted, consciously or unconsciously, for the benefit of the exploiter.”

He further added how we as a country evolved from colonized subjects to imbibing the concept of rule of law. He stated that,

“Our struggle for independence marks our journey for establishment of a state defined by rule of law. The move from a colonial past to the present required a shift from the colonial idea of law, as established for their benefit.”

Chief Justice mentioning the importance of Constitution, the way it was framed, the principles it is based on and the nature of the Constitution, stated that

“Laws which are not clearly commenced but also embedded by a sense of justice. There was a need to give guarantee for the laws to be framed with human face for the benefit of the masses. A framework was needed. A framework that forms the binding link between law and justice in this country. That is what we the people give ourselves in form of the Constitution. Where the framers set out draft constitution, the existing social conditions played a crucial role.”

Chief Justice Raman stated that the new born country was faced with enormous challenges and,

“…the famers envisaged a document which not only took care of the prevailing conditions but would be relevant for all times to come. It is therefore conceived as a living document whose contents evolved for several years, as the courts deal with new situations and questions and interests.”

“The constitution embodies within itself rule of law. The same can be witnessed from our preamble, fundamental rights, direct principles of state policies, and separation of powers, etc. By situating concept of rule of the law at confluence at three important values: Human dignity, democracy and justice, our founding fathers showed the path for the rest of the world too.”

Highlighting the current situation of the pandemic, he stated that

“The entire world facing covid, at this juncture we have to ask that to what extent we have used the rule of law to protect our people.”

He also mentioned that the pandemic might be a curtain raiser to a larger crisis to come, and hence we need to anlayse what we did and where we went wrong.

On Rule of Law and principles

Chief Justice Ramana mentioned that there are many conceptions of rule of law which emerge from Dicey to Lord Bingham. Different formulations of principles informing the concept of rule of law have been made. He also stated that exploring them in entirety would be impossible in course of speech.

Although, he stated four relevant principles given the current events across the globe.

First Principle: Law must be clear and accessible

Stating that there can be no secret laws, he said that, “The fundamental point that laws are expected to be obeyed, people atleast ought to know what the laws are.”

Another implications of the first principle he further states were that, the laws “… should be worded in simple, unambiguous language. In furtherance to above principle in India, we are constantly striving to make legislations and judgements accessible to general public by translating them to various Indian languages.”

Second principle: Equality before the law

The second principle, Chief Justice Ramana stated, “…means laws have to be applied on equal basis, in non-arbitrary fashion. This is of course an important fundamental right, promised under the Indian Constitution.”

While focusing on access to justice by vulnerable sections of the societies he stated that, “An important aspect of equality before law is having equal access to justice. I must emphasis that in a democratic country like ours at access to justice forms the bedrock of the rule of law. However, this guarantee of equal justice will be rendered meaningless if the vulnerable sections are unable to enjoy their rights because of their poverty or literacy or any other kind of weakness.”

He further added that Indian legal aid system is one of the largest legal systems in the world.

Another aspect he highlighted, was the issue of gender equality. He stated that, “Traditional rules are changing within the family, as is the structure of family itself. Most nations have recognized the equality and dignity of women either constitutionally or statutory. Legal empowerment of women not only allow them to advocate for their rights and needs in the society, but it also increases their visibility in legal reform process and allow their participation in it.”

Analyzing such prejudices that necessarily lead to injustice, he stated that, prejudices lead to injustice, “Particularly when it relates to the minorities. Consequently, the application of principles of rule of law in respect of vulnerable sections has to necessarily be more inclusive of their social conditions that hinder their progress.

Third Principle: Members of society have right to participate in creation of reinforcement of laws, that regulate their behaviour.

Chief Justice Ramana, while recognizing the principle of participation by the citizenry in a democracy stated that, “We live in a democracy. The very essence of a democracy is that its citizenry has a role to play, whether directly or indirectly. In the India it is done through elections, where the people can exercise their universal adult franchise to elect the people from the part of the parliament, which enact laws. Incidentally, we the people of India have given the universal adult franchise from day one, of coming in to existence of republic, unlike some of the other advanced democracies.”

Adding to the role of elections and need to recognize principles of rule of law he stated that, “In the seventeen national general elections held so far, the people have changed the ruling party or combination of parties 8 times. Which accounts for nearly 50 percent of number of general elections.”

He added that inspite of large number of problems, 

"the people of independent India have proved themselves intelligent and up for the task. The masses have performed their duties reasonably well. Now is the turn of the people who manage the key organs of the state to ponder if they are living up to the constitutional mandate. It has always been well recognized that the mere right to change the rule, once every few years by itself, need not be a guarantee against tyranny.”

“The idea that people are the ultimate sovereign is also to be found in emotion of human dignity and autonomy. A public discourse that is both reasoned and reasonable has to be seen as inherent aspect of human dignity and hence essential to a properly functioning democracy.”

He also cited Julius Stone’s book , ‘The province and function of law’ to state that, “Elections, day to day discourses, criticisms and voicing a protest is integral to the democratic process.”

Highlighting the idea of judiciary as guardian of the constitution, Chief Justice, gave the last principle.

Fourth principle: Independence of the Judiciary

 Chief Justice started with mentioning that the judiciary is the primary organ tasked with the ensuring that laws are inline with the constitution. He stated that, “Judicial review of laws is main function of the judiciary. The Supreme Court has also held this to be part of the basic structure of the constitution, which means that parliament cannot curtail the same.”  

Even so, he said that the fact that the responsible of safe guarding the constitutionalism lies not only on the court, but all the three organs of the state.

For judiciary to apply checks on governmental power and actions, he said that “Judiciary should have complete freedom. The judiciary cannot be controlled directly or indirectly by the legislature or the executive, or else the rule of law would become illusionary.”

He also stated that media trials cannot be a deciding factor for a judiciary. Adding caution for the judges, to not be swayed by public opinion and get influenced by social media he stated that :

“At the same time judges should not be swayed by the emotional pitch of public opinion either, which is getting amplified through social media platforms. Judges have to be mindful of the fact that the noise thus amplified is not necessarily reflective of what is right and what the majority believes in. The new media tools that have enormous amplifying ability are incapable of distinguishing between right and wrong, good and bad, and the real and fake. Therefore, media trials cannot be a deciding factor in deciding cases.”

“It is therefore extremely vital to function independently and withstand all external aids and pressures. While there is a lot of discussion about the pressures form the executive, it is also imperative to start a discourse as how social media trends can impact," he added

While also understanding the need to give decisions taking into account social factors asserted that, “The above however should not be understood as meaning that judges and judiciary need to completely disassociated from what is going on. Judges cannot stay in Ivory castles, and decide questions which pertains to the social issues.”

“The ultimate responsibility of judges is to uphold the Constitution. Reasons, reasonable and protection of human dignity are the values that will serve us well.”

On role of lawyers to uphold the rule of law

Chief Justice Ramana also added the importance of the role of lawyer in upholding the role of law. He stated that “It demands expertise, experience and commitment. Lawyers have an obligation to perform their duty with integrity and diligence, with full respect for the court, opposing counsels, clients, victims, witnesses and persons involved in the proceedings.”

Historically, lawyers have a rich tradition of social activism, demonstrated by number of lawyers who participated in the Indian freedom struggle. He added that “We need now to rebuild and recreate a tradition of civic professionalism. We need a socialism ideology about social responsibility. Here I would urge to both young and senior counsel to those in need of justice.”

“Extending ease to access of justice is known as social justice. Let economy, gender, class of caste never be a hinderance in the path of securing justice. Undoubting reverence for the rule of law is our best hope for survival as a free society. In order to advance a rule of law, we primarily need to create a society where rules of law is respected and cherished. Only when the citizens believe that they have fair and equal access to justice, can we have a sustainable, just, inclusive and peaceful societies. Citizens can strengthen the rule of law, by being knowledgeable about it and by applying it to their daily conduct and pushing for justice when needed."

He ended the lecture with a Telugu poem, stating that, the poet gave a universal definition to the concept of nation, he said that,
“Nation is not merely a territory, a nation is essentially it’s people. Only when it’s people progress, the nation progresses.”

He addressed the audience saying that, you are the stewards of this nation and the custodians of the rich tradition. He further added that, “I hope you contribute by way of giving back to the society, to this great nation, which has bestowed you with so many privileges.”

He lastly stated that the work of mandate of constitution is to work tireless to surpass our own expectations to make India a country wherein rights are cherished and which sets an example for other countries to follow.

He ended it with a poetry of Rabindranath Tagore;

“Where the mind is without fear

and the head is held high

Where knowledge is free

Where the world has not been broken

up into fragments by narrow domestic walls;

Where words come out from the depths of truth;

Where tireless striving stretches its arms towards perfection;

Where the clear stream of reason

has not lost its way into the

dreary desert sand of dead habit;

Where the mind is led forward

by thee into ever widening

thought and action

into that heaven of freedom,

my father,

let my country awake”

Advocate General, Kamal Trivedi ends the address thanking Chief Justice Ramana for his valuable views and taking us through “various shades of rule of law” in a short span of time.