Every liberal democracy, like a thriving tree, draws its strength from what lies beneath the surface.
The soil of belief in the rule of law nourishes its roots, binds its trunk and thickens its bark. Across nations, this shared foundation of trust sustains civic life, shaping the freedoms that allow societies to grow resiliently. Just as a tree’s vitality cannot be measured solely by the height of its canopy, a nation’s economic rise is not fully evident from mere numerical projections. Those paint only a part of the picture. Equally important is maintaining the credibility of institutions and the freedoms that sustain them.
It is interesting that at two different ends of our planet, albeit in different contexts, a similar thought was recently echoed by Justices of two of the largest liberal democracies in the world and a leading lawyer from India.
That idea of maintaining the rule of law found resonance in the keynote address of Chief Justice of India BR Gavai at the 38th LAWASIA Conference in Hanoi, where he reminded us that in a growing economy, the value of the rule of law lay in whether it secured fairness, dignity and inclusion for all. Drawing on his own experiences, Chief Justice Gavai reflected on how constitutional safeguards stand as a testament to the transformative power of equality, and the ability of legal safeguards to alter the trajectory of a person’s life.
In a similar spirit, retired United States Supreme Court Justice Anthony Kennedy observed that the government must provide the space and conditions to exercise freedom, noting that freedom could not be on auto-pilot, but must be taught and preserved through conscious acts. While complimenting the legal profession in the United States for bringing social issues to judicial attention, Kennedy J cautioned that in cases where executive action was not judicially reviewable, it was important for the executive to be guided by the Constitution with a consciousness of the lasting impact of its acts.
Interestingly, and harking back to the recently held LAWASIA Conference, Senior Advocate Huzefa Ahmadi also weighed in on the role of the legal profession in bringing to the fore the fundamental tenets of constitutional governance, as well as the necessity to preserve the rule of law. Drawing on examples from across the globe, he pointed out that the colonially adopted legal structure was “twisted to serve domination, often in direct contradiction to the ideals of justice they claimed to uphold”. Ahmadi then went on to state that it was necessary to acknowledge that "the Rule of Law is not self-sustaining. It depends on us – on the courage of judges, the integrity of lawyers and the vigilance of civil society.”
Woven together, these threads help build trust in a nation’s institutions and it is this trust that forms the bedrock of the rule of law. The challenge for India today, or for that matter any emerging State, is not just to build new institutions, but to ensure that the ones inherited continue to maintain and protect freedom and equality.
The starting point for any State looking to transform the rule of law into an engine of growth is to be wary of allowing any shadows to be cast on its legal framework. Indeed, any attempt at reform which retrogrades a citizen’s right needs to be tested against a reform that would cultivate genuine trust amongst the citizenry and reinforces the constitutional guarantees of equality and liberty.
The benefits of securing these constitutional guarantees percolate beyond civic life. Investors, much like citizens, rely on an ecosystem where the law is applied impartially, regulators act transparently and rights are not hostage to discretion. It is easy to lose sight of the fact that the credibility of our commercial mechanisms depends on the State’s wider fidelity to law in everyday life. Commercial courts, for instance, have streamlined dispute resolution and reinforced India’s reputation as a predictable market. Yet, predictability cannot thrive in isolation. A State cannot promise the rule of law to the market while withholding it from its people. But when equality, liberty and trust are firmly anchored in both the constitutional framework and the conduct of public institutions, commercial certainty follows naturally.
Ultimately, in India, as well as any growing economy, the rule of law can drive sustained growth only when inclusion, trust and a system underscored by commercial certainty come together seamlessly. Inclusion ensures equality, trust secures confidence in governance mechanisms and a predictable system of commerce guarantees that laws are applied consistently and impartially. When these elements align, the rule of law emerges as a foundation on which a flourishing, stable and equitable society can blossom.
Nakul Dewan is a Senior Advocate and King’s Counsel.