12 Oct 2016 6:32 AM GMT
“True, we [lawyers] build no bridges. We raise no towers. We construct no engines. We paint no pictures - unless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men’s burdens and by our efforts we make possible the peaceful life of men in...
“True, we [lawyers] build no bridges. We raise no towers. We construct no engines. We paint no pictures - unless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men’s burdens and by our efforts we make possible the peaceful life of men in a peaceful state.” - John W. Davis
“True, we [lawyers] build no bridges. We raise no towers. We construct no engines. We paint no pictures - unless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men’s burdens and by our efforts we make possible the peaceful life of men in a peaceful state.”
- John W. Davis
Rule of Law:
The notion of the “rule of law” stems from many traditions and continents and is intertwined with the evolution of the history of law itself. The rule of law cannot exist without a transparent legal system, the main components of which are;
If the rule of law is the basis on which the Judiciary reviews administrative action as well as the foundation of order in our society, we should understand what the term means. A.V. Dicey (Introduction to the study of the law of the Constitution (10th ed., 1959) at 202-203.) gave this as the primary meaning;
“the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power... Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else. It means, again, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the 'rule of law' in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals.”
The law regulates complex relationships – relationships between people and relationships between the people and the state. In a society governed by the rule of law, special knowledge and skills are needed to administer a “subtle and elaborate system”. It reminds me of Lord Coke famous rejection in Prohibitions Del Roy case ((1607) 12 Co Rep 63 at 64-65  ER 1342 at 1343) of King James I's pretensions to judge:
"His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognisance of it: that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace."
That is why lawyers are essential to the rule of law. The basic assumption of the rule of law is that the law is truly defined. Under the common law system, definition of the law is the ultimate responsibility of the courts. In the familiar words of Marshall C.J., in Marbury v. Madison ((1803) 5 US (1 Cranch) 137, 177),“It is emphatically the province and duty of the judicial department to say what the law is”. It can be added that “the judges who are assisted by the lawyers”. Or, as Lord Bingham pointed out in A v. Secretary of State for the Home Department ( 2 AC 68,  UKHL 56, para 42)–
“...the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.”
Rule of Law And the Constitution:
In the Indian Constitution, Rule of Law has been adopted under the Preamble where the ideals of justice, liberty, equality and fraternity are enshrined. The Constitution has been made the supreme law of the country and other laws are required to be in conformity with the Constitution. Nonetheless, the courts have the onus to declare any law invalid, which is found in violation of any provision of the Constitution.
Part III of the Constitution of India guarantees the Fundamental Rights. Article 13(l) of the Constitution makes it clear that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III dealing with the Fundamental Rights, shall, to the extent of such inconsistency, be void. Article 13(2) provides that the State should not make any law, which takes away or abridges the fundamental rights and any law made in contravention of this clause shall, to the extent of the contravention, be void. The Constitution guarantees equality before law and equal protection of laws. Article 21 guarantees right to life and personal liberty. It provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law.
Article 19 guarantees six Fundamental Freedoms to the citizens of India viz. freedom of speech and expression, freedom of assembly, freedom to form associations or unions, freedom to move through any of part of territory of India freely, freedom to reside in any part of the territory of India and freedom of profession, occupation, trade or business. The right to these freedoms is not absolute, but subject to the reasonable restrictions which may be imposed by the State.
Article 20(1) provides that no person shall he convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence not be subject to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. According to Article 20(2), no person shall be prosecuted and punished for the same offence more than once. Article 20(3) makes it clear that no person accused of the offence shall be compelled to be witness against himself. In India, the Constitution is supreme and the three organs of the Government viz. Legislature, Executive and Judiciary are subordinate to it. It provides though for encroachment of one organ (e.g.Legislature) upon other (e.g. Judiciary) if its action is malafide, and the citizen (individual) can challenge under Article 32 of the constitution if the action of the executive or legislature violates the fundamental rights of citizens before the judiciary.
In India, the meaning of rule of law has been much expanded and applied differently in different cases by the judiciary. It is regarded as a basic structure of the constitution and therefore, it cannot be abrogated or destroyed even by parliament (Indira Gandhi v. Raj Narain, AIR 1975 SC 2299). The principle of natural justice is also considered as the basic corollary of rule of law. The Supreme Court of India has held that in order to satisfy a challenge under Article 14, the impugned State act (enactment in the form of law passed by parliament) must not only be non- discriminatory, but also be immune from arbitrariness (D.S. Nakara v. Union of India, (1983) 1 SCC 305), unreasonableness or unfairness (substantively or procedurally) (Maneka Gandhi v. Union of India, AIR 1978 SC 597) and also consonant with public interest (Kasturi v. St. of J & K, AIR 1980 SC 1992 (2000)). In A.D.M Jabalpur v Shivakant Shukla,( AIR 1976 SC 1207) the question before the apex court was, whether there was any rule of law in India apart from Article 21 of the Indian Constitution. The court by majority held that there is no rule of law other than the constitutional rule of law. However, Khanna J., did not agree with the above view. He rightly said, “Even in the absence of Article 21 of the constitution, the State has no power to deprive a person of his life or liberty without the authority of law.”
Similarly the Supreme Court while explaining the rule of law in K.T. Plantation Pvt. Ltd. v. State of Karnataka ((2011) 9 SCC 1), held as follows;
“The rule of law as a principle contains no explicit substantive component like eminent domain but has many shades and colours. Violation of principle of natural justice may undermine the rule of law resulting in arbitrariness, unreasonableness, etc. but such violations may not undermine the rule of law of law so as to invalidate a statue. Violation must be of such a serious nature which undermines the very basic structure of the constitution and the democratic principles of India. But once the court finds, a statue undermines the rule of law which has the status of a constitutional principle like the basic structure, the said grounds are also available and not vice versa. Any law which in the opinion of the court is not just, fair and reasonable is not a ground to strike down a statute because such an approach would always be subjective not the will of the people because there is always a presumption of constitutionality for a statue.
The rule of law as a principle is not an absolute means of achieving equity, human rights, justice, freedom and even democracy and it all depends upon the nature of the legislation and the seriousness of the violation. The rule of the law as an overarching principle can be applied by the constitutional courts, in the rarest of rare cases and the courts can undo laws, which are tyrannical, violate the basic structure of the constitution and norms of law and justice.”
Role of lawyers in the Rule of Law:
A reappraisal of the role of law, and of the functions of the lawyer is needed in the great majority of nations that have though, not recently but, not that long have acquired political independence. The characteristic feature of an under-developed or rather I would say a developing country is the stark gap between its economic and social state and the minimum aspirations of a mid-twentieth century state modelled upon the values and objectives of the developed countries. All these countries including ours have an overwhelming need for rapid social and economic change, much of this must express itself in legal change - in constitutions, statutes, and administrative regulations. Law in such a state of social evolution is less and less the recorder of established social, commercial and other customs; it becomes a pioneer, the articulated expression of the new forces that seek to mould the life of the community according to new patterns. In the type of society - which the under developed or developing countries represent most radically, though by no means exclusively - it is essential to reassess not only the functions of law but the role of the lawyers.
In the tradition of India, the lawyers have contributed to the development of the legal system, and thus in some way to the development of society, mainly as judges, advocates and jurists. Lawyers have also been concerned with the legislative change - as a member of Parliament, as an expert in a government department, or as a parliamentary draftsman.
But generally, if we see the present scenario the lawyer has been a defender of the established order and of vested interests, for the simple reason that in a society dominated by commerce and industry the individual and corporate owners of property have been the principal clients. Correspondingly, the role of the lawyer has been generally more important in the shaping of private than of public law.
With regard to individual liberties the lawyers, especially in criminal and administrative processes, has often been a vital defender of liberties against official arbitrariness.
The continuing importance of the lawyers’s function as a defender of both personal and economic rights against arbitrary interference can hardly be exaggerated. In these days of right and left wing rulership, the stifling of open discussion, and confiscations of both national and foreign property interests, the protection of the legitimate interests of the individual, and most especially of his personal liberties as expressed in the minimum requisites of due process, remains one of the most important and noblest of the lawyers’s functions.
But it is no longer sufficient. If the lawyer continues to be identified, as he predominantly is at the present time, with the defence of the existing order and of vested interests of societies that must lift themselves from poverty and stagnation to a radically higher level of economic and social development, often within a desperately short time, the lawyer will eventually be reduced to an inferior and despised status in the developing nations. The contemporary lawyer in all states, but most emphatically so in the developing nations, must become an active and responsible participant in the shaping and formulation of development plans. He must guide and counsel but also warn where necessary. He must acknowledge the drastically increased role of public law in developing societies, which usually have inadequate resources, a totally inadequate quality and quantity of responsible private venture capital, gross educational deficiencies and insufficient technical skills and administrative experience. These nations must plan for their future; they must seek to use and develop their resources for the maximum benefit of the community, even where they admit and desire a large share of private investment and enterprise.
To perform their appointed function, the members of the practising profession must be knowledgeable in the law and competent in its application. It is not sufficient to be mere technicians, familiar with the words of a statute or a precedent. There may be a need to understand the underlying purpose of the statute or the principle to which the precedent is giving effect. The law develops organically and incrementally, and the legal profession usually provides the stimulus to its growth. The advocate, respectful to judge, witness and opponent but fearless in advancing the client’s case, is the daily witness to the work of the judiciary. In that role, the advocate is bound not only to assist in the elucidation of relevant fact and law but to ensure and defend the impartial discharge of judicial duty. Misbehaviour by a judge is antithetical to the rule of law and, at whatever cost, the advocate’s duty is, firmly but respectfully, to propose a return to judicial propriety. It is common that judges acknowledge the important role which advocates play in the dispensing of justice according to law. To perform that function, the advocate must be independent of any influence that might tend towards a deviation from an advocate’s duty – even the influence of the client to whom a duty is owed, which is a duty subordinate to the duty to the court.Above all the conduct of an Advocate in the Court must not be unbecoming & shall always be a conduct which uphold the majesty of the Court. The Supreme Court of India in Mahipal Singh Rana v. State of Uttar Pradesh (Cr. Appeal No. 63 of 2006), had observed that there is an urgent need to review the provisions of the Advocates Act dealing with regulatory mechanism for the legal profession. Three Judge Bench comprising of Justices Anil R. Dave, Kurian Joseph and Adarsh Kumar Goel had also requested the Law commission and Government of India to take appropriate steps in this regard. In view of above the Law Commission of India had undertaken a study and requested the Bar Council of India and all State Bar Councils, Bar Association of the Supreme Court and Advocates on Records Association of Supreme Court, Advocates Associations’ (in whatever nomenclature they exist) in the High Courts and their respective Benches to send their comments to at email@example.com, within 30 days. The Supreme Court made the above observations while disposing of an appeal against Allahabad High Court order convicting an Advocate finding him guilty of Criminal Contempt for intimidating and threatening a Civil Judge. The Apex Court has upheld the conviction and the direction by the High Court that the advocate shall not be permitted to appear in courts in District Etah until he purges himself of contempt. The Court also held that under Section 24A of the Advocates Act, the enrolment of the contemnor Advocate will stand suspended for two years. The Court also said that, as a disciplinary measure for proved misconduct, the licence of the contemnor will remain suspended for further five years. The Court has however set aside the imprisonment imposed on the Advocate. The Court also held that Section 24A of the Advocates Act which debars a convicted person from being enrolled applies to an advocate on the rolls of the Bar Council for a period of two years, if convicted for contempt. The Court further observed : “Legal profession being the most important component of justice delivery system, it must continue to perform its significant role and regulatory mechanism and should not be seen to be wanting in taking prompt action against any malpractice. We have noticed the inaction of the Bar Council of Uttar Pradesh as well as the Bar Council of India in spite of direction in the impugned order of the High Court and in spite of notice to the Bar Council of India by this Court. We have also noticed the failure of all concerned to advert to the observations made by the Gujarat High Court 33 years ago. Thus there appears to be urgent need to review the provisions of the Advocates Act dealing with regulatory mechanism for the legal profession and other incidental issues, in consultation with all concerned.”
The legal profession is a profession of service. In maintaining the rule of law, it gives vitality to the peace and order, the freedom and the decency, of the society in which we live. Sometimes that may be an anxious duty, sometimes difficult to perform. Function of the law in the developing countries of our time that the lawyer can hope to retain or even broaden the role that he has traditionally played in the countries of the Western world. As Thomas Paine said, “…the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” It is only in this way that he can help to move the ideal of the “rule of law ” from the static and defensive meaning it has tended to acquire in the Western world, and to adapt it to the needs and ideals of our time - which make economic and social development a paramount matter of public national and international responsibility.
Mohit Sharma is an Advocate @ High Court of Himachal Pradesh, Shimla.
[The opinions expressed in this article are the personal opinions of the authors. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]
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