The Predominance of the ‘Rule by Law’

How the Indian Government is using laws to undermine the ‘rule of law’

By Devika Kher

In the last few weeks, we have seen the government use its powers to restrict what we watch, hear or eat. These bans and restrictions have been made at the cost of fundamental rights such as the freedom of speech and the protection of personal liberty. They are good examples of how the ‘rule by law’ is taking over the ‘rule of law’ within India.

In his paper “What is Governance,” Francis Fukuyama explains the difference between the rule of law and the rule by law. ‘Rule of law’ refers to the principle that no one is above the law, including the makers and enforcers of the law. ‘Rule by law’ on the other hand, refers to the use of laws by the government as an instrument of power. In India, the rule of law is secured by the Fundamental Rights included in the Constitution of India; Article 13 (a) states that any law made by the legislative has to be in conformity with the Fundamental Rights of the Constitution, failing which it will be declared void. Some of these Rights include Article 14, which creates the right to equality and Article 21, which states that no person’s life and personal liberty can be restricted except according to the procedure established by law. The ‘Rule by Law’ also derives its legitimacy from the Constitution. For example, Article 73 states that the executive power of the Union extends to matters on which Parliament can legislate.

An example of the rule by law stepping over the rule of law would be Section 66A of the Information Act 2008 which punishes those people who send “offensive messages” online. Terms like “offensive” are ambiguous and their meanings vary from case to case; this makes them hard to enforce without personal bias. Such terms give unfettered powers to the government as described by Fukuyama. Section 66A was used to controversially restrict the broadcast of India’s Daughter, a documentary by Leslee Udwin about the infamous Nirbhaya case.

The documentary came into the news after the publication of an interview with one of the convicted rapists, in which he expressed his regressively patriarchal views. The uploading, transmission and publication of the footage of the interview was restricted by the Municipal Magistrate who used Section 66A as one of his grounds. The magistrate did not question the need for such an order before issuing it. The order is now being reviewed by the Delhi High Court.

The other famous recent event which makes the case for the predominance of the rule by law is the ban on beef in Maharashtra. Article 48, which enables the prohibition of cattle slaughter, was used to pass the amendment which essentially enforced the religious beliefs of the majority of the population. The rules set in the Constitution were used as per the whims of the government as an instrument to fulfil their motives.

The Constitution is the basis on which the Government of India functions. The Constituent Assembly designed its Articles to ensure that the ‘rule by law’ is limited by the ‘rule of law’. Unfortunately, going by the government’s decisions in the last few weeks, it appears that the law instead of being the king of the land has been reduced to an instrument of power of the government of the day to push through its own agendas.

Devika Kher is a Research Associate at Takshashila Institution. Her twitter handle is @DevikaKher

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