Chetan Prabhakar
India is a Rule of Law country as Rule of Law is the bedrock of India’s Constitution. Part III embodies in India’s Constitution what is known as Rule of Law. The Rule of Law is a fundamental principle of governance that asserts that all individuals, institutions, and entities, whether public or private, within the country, State and community are accountable to laws that are publicly promulgated, equally enforced, independently adjudicated and are consistent with international human rights norms. In essence, the Rule of law ensures that no one is above the law. It requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, avoidance of arbitrariness, and procedural and legal transparency.
In Puttaswamy case-2017 (5) SCC 1 page 419, the former Chief Justice of India D.Y. Chandrachud observed that “A constitutional democracy can survive when citizens have an undiluted assurance that the Rule of Law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights…”
In the World Justice Project-Rule of Law Index (WJP-Roli) 2024, India ranked 79th out of 142 Countries and scored 0.50 from a range of 0 to 1 where 1 indicates the strongest adherence to the Rule of Law. The World Justice Project (WJP) is a US based civil society group that rates countries based on the accountability of Governments and respect for the fundamental rights of peoples and the rank and scores are given on the following factors:
Constraints on Government Powers: This includes sub-factors like: i) Government powers are effectively limited by legislature (Score 0.66 and rank 39); ii) Government powers are effectively limited by Judiciary (Score 0.60 and rank 49); iii) Government powers are effectively limited by independent auditing and review (Score 0.52 and rank 58); iv) Government officials are sanctioned for misconduct (Score 0.37 and rank 95); v) Government powers are subject to non-Governmental checks (Score 0.51 and rank 83) and; vi) transition of power is subject to the law (Score 0.68 and rank 54). In respect to this factor, India scored 0.56 in total and globally ranked at 60.
Absence of Corruption: This includes sub-factors like: i) Government officials in the executive branch do not use public office for private gain (Score 0.42 and rank 84); ii) Government officials in the judicial branch do not use public office for private gain (Score 0.48 and rank 90); iii) Government officials in the police and the military do not use public office for private gain (Score 0.42 and rank 109); iv) Government officials in the legislative branch do not use public office for private gain (Score 0.31 and rank 73). In respect to absence of corruption, India scores 0.41 in total and globally ranked at 97.
Open Government: This includes sub-factors like: i) publicized laws and Government data (Score 0.57 and rank 44); ii) right to information (Score 0.55 and rank 46); iii) civic participation (Score 0.53 and rank 77); iv) complaint mechanisms (Score 0.70 and rank 34). In respect of open Government, India scored 0.59 in total and globally ranked at 44.
Fundamental Rights: includes sub factors like: i) equal treatment and absence of discrimination (Score 0.45 and rank 116); ii) the right to life and security of the person is effectively guaranteed (Score 0.36 and rank 108); iii) due process of the law and rights of the accused (Score 0.38 and rank 106); iv) freedom of opinion and expression is effectively guaranteed (Score 0.51 and rank 83); v) freedom of belief and religion is effectively guaranteed (Score 0.52 and rank 114); vi) freedom from arbitrary interference with privacy is effectively guaranteed (Score 0.39 and rank 82): vii) freedom of assembly and association is effectively guaranteed (Score 0.53 and rank 95); and viii) fundamental labor rights are effectively guaranteed (Score 0.50 and rank 100). In respect of fundamental rights, India scored 0.46 in total and globally ranked at 102.
Order and Security: includes sub-factors like; i) crime is effectively controlled (Score 0.79 and rank 66); ii) civil conflict is effectively limited (Score 0.89 and rank 118) and; iii) people do not resort to violence to redress personal grievances (Score 0.33 and rank 117). On this count, India scored 0.67 in total and globally ranked at 98.
Regulatory Enforcement: includes sub-factors like; i) Government regulations are effectively enforced (Score 0.42 and rank 109); ii) Government regulations are applied and enforced without improper influence (Score 0.44 and rank 122): iii) administrative proceedings are conducted without unreasonable delay (Score 0.39 and rank 107); iv) due process is respected in administrative proceedings (Score 0.51 and rank 51); and v) the Government does not expropriate without lawful process and adequate compensation (Score 0.63 and rank 44). Here, India scored 0.48 in total and globally ranked at 78.
Civil Justice: includes sub-factors like: i) people can access and afford civil justice (Score 0.43 and rank 122); ii) civil justice is free of discrimination (Score 0.37 and rank 121); iii) civil justice is free of corruption (Score 0.49 and rank 81); iv) civil justice is free of improper Government influence (Score 0.58 and rank 57); v) civil justice is not subject to unreasonable delay (Score 0.23 and rank 131); vi) civil justice is effectively enforced (Score 0.37 and rank 117); and vii) alternative dispute resolution mechanisms are accessible, impartial and effective (Score 0.61 and rank 94). In respect of civil justice, India scored 0.44 in total and globally ranked at 107.
Criminal Justice: includes sub factors like: i) equal treatment and absence of discrimination (Score 0.26 and rank 126); ii) criminal adjudication system is timely and effective (Score 0.36 and rank 107); iii) correctional system is effective in reducing criminal behaviour (Score 0.37 and rank 72); iv) criminal system is impartial (Score 0.36 and rank 102); v) criminal system is free of corruption (Score 0.46 and rank 87); vi) criminal system is free of improper Government influence (Score 0.49 and rank 60); and vii) due process of the law and rights of the accused (Score 0.38 and rank 106). In respect of civil justice, India scored 0.39 in total and globally ranked at 89.
From the data provided above, India’s adherence to the Rule of Law is just 50% which makes India a mix of rule of law and rule by law country. It also means that human rights are not fully recognised and respected. Sri Lanka, our neighbouring country, has scored better than India. Sri Lanka scored 0.51 and ranked 75th, four ranks ahead of India. The Government of India needs serious work on strengthening the Rule of Law with enhanced focus on eradication of corruption, protection of fundamental rights and overhaul of civil and criminal justice.
(The author is Advocate of Supreme Court and J&K&L High Court)
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