In a country obsessed with the World Bank’s “Ease of Doing Business Report”, where India recently jumped-up 23 positions to 77 out of 190 countries, Constitution Day is an opportune time to inform ourselves of an equally important index. The Rule of Law Index, 2019 measures “how the rule of law is experienced and perceived by the general public.” On this Index, India ranks 68 out of 126 countries, down 3 places from last year. This Index measures performance across various socio-legal and political focus-areas including “Open Government, Fundamental Rights, Regulatory Enforcement, Civil Justice, and Criminal Justice.”
As recently discussed by the erudite Justice Rohinton Nariman in his dissent in the Sabarimala Review case, “The expression “rule of law” can be traced back to the great Greek philosopher Aristotle, who lived 2,400 years ago. In his book on the “Rule of Law” by Brian Z. Tamanaha, Aristotle is reported to have said: “It is better for the law to rule than one of the citizens…so that even the guardians of the law are obeying the laws.”
Formal definitions of the rule of law aim at measuring a legal system’s conformity to a set of precise standards including an impartial and independent judiciary, subjecting every person to the ordinary law and providing for judicial review of executive and legislative action. And as Justice Nariman notes, the rule of law was first established against absolutist monarchs. Thus, in the Magna Carta, which was signed by King John of England in 1215, it was stated: “No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”
The efficient delivery of justice reinforces people’s confidence in the rule of law. As per the Rule of Law Index, various aspects affect the Civil Justice regime and include factors such as timely resolution, accessibility/affordability, non-discriminatory, and independence of judicial systems.
Our legal system is notorious for being prone to delays, and it is no wonder India ranks 97th on the Civil Justice ranking below Malaysia, Senegal, and Kazakhstan.
And while the logjam of cases is an inevitable concomitant of increased awareness, economic growth and prosperity part of the reason is that, as per last available data from 2015, we had only 18 Judges per million, which perhaps explains why it takes 4 years to seek enforcement of a contract in India! A lot has changed with the new commercial courts legislation, but we still have miles to go. Our criminal justice system is even worse, leading Justice DY Chandrachud to note that long delays in the disposal of cases, especially criminal cases, have a serious impact on the rule of law, as well as inhibiting access to justice, which form part of the fundamental right guaranteed under Article 21 of the Constitution.
Some ways to enhance the rule of law in India is to seek effective implementation of the
(i) National Litigation Policy;
(ii) reduce intra-government litigation;
(iii) expedite appointment of judges;
(iv) implement the National Mission for Justice Delivery;
(v) overhaul court infrastructure to eliminate delays and dispose of pending cases; and
(vi) move to embrace alternative dispute resolution mechanisms like arbitration and mediation. However, for India to do better on such indices, what is required is better performance at the state-level, as State Governments are responsible for many factors that are taken into account while arriving at the results.
As Justice Nariman passionately wrote in his above-quoted dissent, “after all, in India’s tryst with destiny, we have chosen to be wedded to the rule of law as laid down by the Constitution of India. Let every person remember that the “holy book” is the Constitution of India, and it is with this book in hand that the citizens of India march together as a nation, so that they may move forward in all spheres of human endeavour to achieve the great goals set out by this “Magna Carta” or Great Charter of India.”
On Constitution Day, it’s appropriate to end with the words of B.R. Ambedkar who in his last speech at the constituent assembly on November 25, 1949, said: “I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.” Only when this objective is fulfilled, in letter and spirit, can we expect to really move-up indices and proudly flaunt at having achieved ‘Sabka Nyaya.”
Satvik Varma is a litigation counsel and corporate attorney based in New Delhi. A graduate of Harvard Law School, he’s licensed to practice both in India and New York.