Rule of law and SIKH THOUGHT

The phrase ‘Rule of Law’ may be said to be derived from the Latin phrase La legalita which connotes government on Principles of Law and not of man. Its concept is indeed very ancient. It is said that the Holy Roman Emperor Konard II (1024- 1039 AD) decreed in his great feudal law compilations of May 28, 1037 that no holder of feudal estate shall be deprived of his fief — but by the laws of the empire and the judgement of his peers. More known is king John Lackland’s English Magna Carta of 1215 which in Chapter 39 postulated: No free man shall be taken or arrested or exiled or in some way destroyed, nor will we go upon him nor will we send him, except under a lawful judgement of his equals and by the law of the land. This great charter of liberty was subsequently and often re-enacted. Coke C.J. in the reign of James I maintained successfully that the king should be under God and the law. He established supremacy of the law against the executive.

Dicey developed in his book The Law of the Constitution, published in 1885, the doctrine of Rule of Law to mean absolute supremacy or predominance of regular Law as opposed to the influence of arbitrary  power and excluded the existence of arbitrariness or prerogative or even wide discretionary power on the part of the  Government. He elaborated and popularised the concept saying that the Rule of Law existed in England by virtue of three features. First, no man can be arrested except by due process of law showing thereby that the State recognised a distinction and a contrast between regular and arbitrary power. All men are equal in the eyes of law and they can be proceeded against only in the ordinary courts and in accordance with  the ordinary law. Second, the rule of law guarantees equality before the law — all persons are subject to the same law and officials of the state have no special privileges, not possessed by ordinary individuals, nor are they exempt from the jurisdiction of the ordinary courts. 

Third, the constitution is part of the ordinary law of the land and thus amendable in defference to wishes of the people, like ordinary law. This feature, according to Dicey, is essential safeguard of individual liberty. An unscrupulous Government possessing majority in the House of Commons could use this very simplicity of legislative machinery to repeal fundamental safeguards of personal liberty or other characteristics of the Constitution of equal importance. As there are no fundamental principles clearly expressed in the Constitution and no entrenched clauses, no outside body would be able to exercise any control over such a reforming government. Dicey’s third feature being a double edged weapon has limited importance in the matter of protection of individual liberty. In the second feature too, his insistence on ordinary courts necessarily being given jurisdiction on public officials in their dealings towards the subject is based on his mis-conception about institution like French Administrative Courts possibly becoming arbitrary in exercise of discretion. When with the development of Administrative Law, the observance of principles of natural justice is being made bedrock for exercise of discretion by the executive, his overemphasis on only ordinary courts having jurisdiction to judge acts of public officials is no more called for.

The remaining content of second feature continues to be important to protect the individual in his liberty against all officers and persons acting in the name of the Government. They are liable for all their actions and the plea of orders if superiors afford them no defence against their liability. Garner says that Rule of Law can usually be explained as meaning no more than that law and order — the same law is observed throughout the territory of a state and that in this sense, every state having a reasonably competent and efficient police force is subject. to the Rule of Law. The Rule of Law all the same is to be understood to signify also something more than this, namely, that in the particular state there are adequate safeguards for the reasonable interests of the individual. Devis (Administrative Law, 1959, pp. 24-27) gives seven principal meaning of the term, rule of law: 1. Law and Order 2. Elimination of discrimination 3. Fixed Rules  4. Due processes of law or fairness

5. Natural law or observance of the principles of natural justice 6. Preference for judges and ordinary courts of law to executive authorities and administrative tribunals 7. Judicial review of administrative actions Through whatever author we approach, we find that the supremacy of law is the cornerstone of the doctrine of the Rule of Law. Rule of anarchy and fear stands negatived in it. There is equality before the Law and equal protection of law for all, without discrimination of any kind. This rules out all arbitrariness. being  rooted in basic human rights, justice is more important than mere observance of law in its technical sense. Application of the ultimate law (natural law) and for that matter observance of principles of natural justice, was alluded to when Justice Khanna, in his dissenting judgement in Jabalpur case stating Rule of Law to be antithesis of arbitrariness held that even in the absence of Article 2 in the Constitution of India, the State has no power to deprive a person of his life or liberty without the authority of law. Absence of Rule of Law would be added, nevertheless to the absence of rule of Law, even though it is brought about by a law to repeal all laws. Subsequent judgements of the Supreme Court have accepted this basic approach of Justice Khanna, conserving to itself the power of Judicial Review against tinkering with the structural elements and hence the basic justice in human rights.  If we examine the Sikh scriptures and annotations and commentaries  based thereon by eminent Sikh writers, we will find that the doctrine of Rule of Law is deeply embedded in the Sikh Thought.

I am conscious that the doctrine has connection with polity and as such one generally considers that it should be alien to the world spiritual. All the same it is a fact that founder of the Sikh Religion started his worldly career when there was great political and social turmoil. Indians were badly caste-ridden and were involved in internecine feuds. Lodis were deep in merry-making rather than governing the country effectively. Mughals, taking advantage of this weakened situation of natives, over-ran the country, raping and dishonouring their womenfolk and looting away their properties. This had pricked the sensitive mind of the Guru and he expressed himself so, in rebuke to Babur. The indiscriminatory use of military force by the Mughals provoked the Sikh Gurus to protest against the atrocities of the ruling class.

They took up the cause of the people and underwent all sorts of suffering. The Sikh Gurus kept tryst with death for the sake of their ideals. Necessarily, therefore, emerged Sikh polity out of the need to reform society and to bring about reason and sanity in the politics of the day. Uplifting the moral standard by arousing in members of the society a sense of social justice  and love for truth, honesty and integrity went into the making of this polity. It wanted people to inculcate right conduct and fearlessness.

For these reasons we find expressions in Sikh Scriptures which have close affinity to various elements of the Rule of Law, namely governance of all by law, equality for all before law and equal protection to all from law without discrimination on grounds of sex, caste, religion or station in life. Justice — social, economic and legal, and position of King and his qualities for accomplishment of the Rule of Law have also been stressed. Various Sikh Gurus at various places in the Guru Granth Sahib have brought out the Code of conduct in different situations for both rulers and the ruled and have focussed on wrong conduct of kings, qazis and Brahmins so as to indicate as to what conduct or law should have been observed. When all such principles were found by the Tenth Guru to have been comprehensively stated in different hymns in the Guru Granth Sahib, and followed — practice, he put an end to the institution of Gurudom and required Sikhs thereafter to bow before the Guru Granth Sahib and comply with principles of human conduct and human dignity incorporated therein.