Why rule of law

While writing on the rule of law, one cannot ignore the singular contribution of Lord Bingham, the former Lord Chief Justice of England and Wales.

Be you never so high, the law is above you.Dr Thomas Fuller (1733)

...all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made and publicly administered in the courts.

Tom Bingham, Lord Chief Justice of England (1996-2000)

THE law will take its own course. This is the refrain one hears ad nauseam when any public figure closely associated with a political party that is in power in the States or at the Centre is caught in transgression of the law and hauled up by a court. The hypocrisy and deceit that envelop such a holier-than-thou posture meant purely to get out of a temporary embarrassment would exasperate any honest citizen. This is because every effort is made to sabotage all the processes set in motion by an investigator or a court.

How else can one explain the many indefensible happenings in the country, such as some former Chief Ministers and other Ministers frustrating the courts decades after credible charges were framed against them for acquiring assets disproportionate to their known sources of income? Of a piece are cases of murder or assault registered against members of the ruling party being neutralised through the intimidation of key witnesses, utilising the might of the state. The police are willing abettors in many instances.

Ultimately, the casualty here is the rule of law, which is indisputably the bedrock of a just and civilised society. While veiled contempt for the law and for all those who try to uphold it is not unknown in other countries, India takes the cake for the brazen attempts by those wielding political authority to shield criminals and simultaneously go after those against whom an injustice has been done.

Except for the odd inconsequential politician and a few low-ranking civil servants who have gone to jail for their misdeeds, the rest of the pack of delinquents, mostly belonging to the political firmament and the affluent sections of society who can buy protection, have gone scot-free. This is often with the connivance of the ruling party and its cronies. The judiciary is often, if not always, helpless, and the victim is left to grieve in silence. After all, how many cases can be taken to the notice of the apex court, whose record for upholding the law and undoing blatant injustice is far superior to that of the judicial bodies below it. When an influential individual gets away with murder, there is undoubtedly a breakdown of the rule of law.

The burden of the above preamble is simple: the state and its organs are powerful, and anyone who tries to question their blatantly dubious acts of commission or omission will be dealt with swiftly. This is the tragedy of the times in which we live, despite all the protestations in favour of democracy, a form of government that is widely acknowledged to be founded on the twin principles of equality before law and equal protection of the law.

It is a matter of gratification, however, that notwithstanding the odds stacked against them, at least a few people in history have stood up against the oppression of the state, if only to prove that unless one squarely engages the intimidator, one can get liquidated. If there is a consensus that the rule of law is indeed an ethical and a desirable arrangement to enhance the quality of governance, what is the best way to perpetuate the dominance of law over transgressors? Does one need a mass movement or can individuals acting by themselves help?

While writing on the merits of the rule of law, especially in the context of English jurisprudence, one cannot ignore the singular contribution of Lord Tom Bingham, the former Lord Chief Justice of England and Wales who passed away recently. For Bingham, who preferred to be called Tom, advocating the rule of law, at every forum to which he was invited, was a religion in itself. He never spared anyone who displayed the slightest contempt for the law, however high they might be. His book The Rule of Law was released just a few months before his demise, and it demonstrates amply his conviction that a state without an unassailable faith in the concept does not deserve to exist.

While highlighting the merits of the concept, which found expatiation even in ancient Greece (Aristotle: It is better for the law to rule than one of its citizens.), Bingham was brutally candid and fearless. One saw in him more than just shades of India's own venerable Justice V.R. Krishna Iyer.

Whatever Bingham said or wrote on the subject evoked ready acceptance from a cross-section of the citizenry because he was considered brilliant and apolitical, one who could be ignored only at the peril of good governance.

Bingham's achievements read like a fairy tale. Hailed as the brightest boy in a hundred years at the famous Sedbergh School in Cumbria, he went on to graduate in modern history with a first class from the renowned Balliol College in Oxford. After topping the bar examination as an Eldon Law Scholar and practising under Leslie Scarman, he became a Queen's Counsel when he was just 38. He went on to acquire the unique distinction of having successively held three prestigious positions: Master of the Rolls, Lord Chief Justice and the First Law Lord.

If he had not called it a day in 2008 to move to the countryside, he would have ended up as the first President (or Chief Justice in our parlance) of the U.K. Supreme Court, a body that he helped conceptualise and which came into being a year after his death. (Until the Supreme Court was set up in 2009, the Law Lords sitting in the House of Lords constituted the highest court in the land.)

Bingham was opposed to any mixing of the judicial process with the political undertones of the House and hence clamoured for a court that was unaffected by the rough and tumble of politics. Fortunately, India has not had this problem, but it is still a challenge to keep politics away from judicial matters so that the rule of law prevails. In India there are contentious debates even now over appointments to the Supreme Court. Bingham was for the judges choosing themselves, and he was not reconciled to the current Judicial Appointments Commission on the grounds that it injected the spectre of politics into what should be a purely clinical exercise.

For Bingham, the rule of law was real and substantial, not a fuzzy concept. This was no doubt a view that many other scholars and jurists shared. But when he described vividly what the rule of law meant and catalogued its essential attributes, that doctrine acquired a new respectability and rigour that few in government could ignore. He drew heavily from the past, even going back to the Greeks, in order to give flesh and bones to it. Both his eminently readable slim volume The Rule of Law and his elegantly worded speeches, such as the 2009 Annual Grotius Lecture at the British Institute of International and Comparative Law, gave one an insight into his perception of what damage could flow out of a lack of respect for the law by those in power. Bingham will be remembered for several interventions in favour of the supremacy of the law and the right of the average citizen. The midnight knock, arbitrary arrests in the name of fighting terrorism, and torture to extract information were all anathema to him. Those in India who were witness to the state's atrocities and arbitrariness in 1975 will be able to endorse what Bingham said.

But what will be most strikingly recorded by history is his opposition to the United Kingdom's participation in the Iraq war. In his view this was simply illegal and not merely unethical. In this matter he crossed swords with Attorney General Peter Goldsmith, who, after initial dithering, sided with Tony Blair, an act that shocked Bingham's conscience. He forthrightly said that the invasion was in direct contravention of the international law established at the end of the Second World War.

He was equally critical of the alleged atrocities by the American and British occupying forces. The stand taken by President George W. Bush that the Geneva Conventions did not apply to Guantanamo Bay detainees and that Al Qaeda and Taliban prisoners should be tried through military commissions was a cause of even greater dismay to Bingham.

Perhaps, what irked the Blair government most was his ruling (2004) that the indefinite detention of nine foreigners at the Belmarsh prison in London was downright illegal. A year later he went on record to say that evidence obtained through torture was offensive, unreliable and inadmissible. No wonder seven years earlier he brought the weight of his authority and integrity to ensure that the 1998 Human Rights Act of the U.K. incorporated all the rights enshrined in the European Convention on Human Rights. His emphasis on judicial independence from the political executive also won him many friends. On the whole, Bingham's was a life dedicated to strengthening universal respect for individuals and their right to life and liberty. In many ways he resembled what Justice Krishna Iyer stands for even today, in his nineties.

One final thought. How would Bingham have handled Arundhati Roy's fulminations against the Indian state? Dictated by the demands of the rule of law and its strict construction, would he have opted for prosecuting her for sedition? Or would Bingham's high sensitivity to the individual's right to freedom have persuaded him to desist from such action? Unfortunately, we can only speculate.