Ethics: January 2022 Current Affairs | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

RULE OF LAW

“Be you never so high, the law is above you”

– Lord Justice Denning

Rule of law implies that government powers are effectively limited by the legislature, judiciary, independent auditing and review.
The doctrine of rule of law has its origin in England and is given by A.V. Dicey. According to Dicey, there are 3 fundamental principles of Rule of Law:

• Absence of arbitrary power: No man is punished except for a breach of law.
• Equality before the law: Equal subjection of all citizens (rich or poor, high or low, official or nonofficial) to the ordinary law of the land administered by the ordinary law courts.
• Primacy of the rights of individual: The constitution is the result of the rights of the individual as defined and enforced by courts of law, rather than constitution being the source of the individual rights

According to Plato, the meaning of rule of law is that Law is supreme in nature, and nobody is above the law.
According to Aristotle, law should be the final sovereign of the state.
According to Sir Edward Coke, “Rule of Law” means the absence of arbitrary power on the part of Government. Rule of law enabling ethical dilemmas resolution

Ethical dilemma refers to a situation where one must choose between competing principles, both being right in their own way. Rule of law helps to make decisions in such situations:

1. Rule of law gives a definitive path to follow irrespective of the situations and provide certainty of actions to be followed by the government. Example: Demolition of a slum/ roadside vendors create a dilemma but is necessary.
2. Irrespective of the superior’s directive, the official can stick to the law which can be later justified in the court or inquiries. Public representatives may give orders to officials which creates ethical dilemmas whether to follow the representative’s order or the public interest.
3. Following rule of law will help in overcoming the same and help civil servants to function without fear or favour.
4. Following rule of law help resolve dilemma of ‘Secrecy vs Transparency’. For instance, denial of information under RTI. Following rule of law will help the government in proactive disclosure of information vital for the public, but at the same time withholding the information vital for national security.
5. Equality, though a basic virtue to be followed, equity is necessary. Even the constitution provides for differential treatment and upholding it will help in overcoming the sense of discrimination created by differential treatment. 
6. In some situations, it might seem ethically right to circumvent rule of law. Example: Encountering a child rapist or terrorist and so on. But Rule of law help in overcoming emotional ambiguities. Example: Even the terrorist Kasab was prosecuted as per Rule of law.

Significance of Rule of Law

• Experience of liberty – shield against majoritarianism (Navtej Singh Johar case)
• Success of social contract.
• Separation of power as per theory of Montesquieu.
• Good and stable governance
  • Rule of law and public order is the science of administration – Kautilya in Arthashastra
  • Contract enforcement - stable investment
  • If I have to give one reason for fall of Roman empire, it was absence of rule of law - Edward Gibbon
• Fundamental rights are secured
  • Lunching
  • Custodial death
  • Honour killing
• Regulatory enforcement
  • MCC rules are defined but not justiciable.
  • Regulation on plastic waste by CBPC not followed by state.
• Civil and criminal justice are accessible and affordable – PIL
• Order and stability – If I have to give one reason for fall of Roman empire, it was absence of rule of law - Edward Gibbon
• Openness in governance – Right to information, civil society participation etc.
• Thus, overall rule of law helps create a trustbased society and generates social capital.

Rule of Law in India context

“Rule of law and public order is the science of administration” – Kautilya in Arthashastra

• Lokpal act – PM too is covered under this act.
• Arrest of executives - Bihar chief minister in fodder scam.
• Many prominent leaders arrested under 2G scam etc.
• Air travel ban on abusive MP
• Swift action in Chandigarh stalking case involving powerful parties.
• Judicial judgement in crucial cases – Indira Gandhi Vs Raj Narayan case
• Bengaluru Mayor pays fine for use of plastic Challenge to rule of law
• Uncertainty in laws – frequent amendments.
• Politico - bureaucratic-corporate nexus.
• Cases pertaining to politicians take too long for disposal.
• Haryana - Members of local bodies have minimum qualification, but not MLA’s and MP’s.
• Power abuse – ICICI – Chanda Kochhar.
• Politicians living in government bungalows do not vacate on time, despite their term ending. There is a crucial difference between "rule by law" and "rule of law." In many countries, laws and legal institutions are being manipulated to undermine rather than uphold the rule of law, even as governments wrap their actions in "rule of law" rhetoric.
• Coastal regulation zone amendment.
• Relaxation of “Restricted Area Permit.”
• Cancellation of coal (nationalization) act to increase private investment in mining.

Supreme court has observed that the public officials are answerable to law and law alone. Objectivity, impartiality, transparency and other values which are the foundational values of civil services hinges on the implementation of Rule of Law. Thus, Rule of law helps as a directing light to the government and civil servants in fulfilling their duty

Case Studies for Practice

Case 1: Last year, Delhi witnessed an unprecedented clash between police personnel and lawyers, following an argument over parking at the Tis Hazari Court complex. In the aftermath, the blockade of the Delhi police headquarters by its personnel and the disruption of courts almost led to a governance breakdown in the national capital. It also led to violence in which people from both sides were injured and public property was damaged. Such kind of ego clashes and emotional bursts are usually not expected from the professionals. What in your opinion are the major causes behind this incident? Suppose you are the Commissioner of Delhi police. What steps you can take so that such incident is not repeated? The case highlights the poor state of moral conduct in important public institutions. It also shows the increased use and acceptance of violence in public discourse. Major causes behind this incident

a) Negative emotion of anger drives irrational behaviour. Gandhiji said that anger is the enemy of correct thinking.
b) Lack of fully developed conscience – professionals fail to realise the importance of moral conduct in public.
c) Professionals may think that mob violence will protect individuals from punishment.
d) Negative attitude of lack of respect for law and institutions.
e) Absence of ethical ecosystem.
f) Poor implementation of laws Steps to be taken to stop such incidents

1. Immediate measures
a) A fact-finding team must be constituted, and strict action must be taken on gross violators and destroyer of public properties.
b) CCTV camera must be installed at important public places.
c) Appeal must be made to stop the inter-institutional friction to ensure efficient public service.

2. Long term measures
a) Institutionalizing ethical training to encourage selfintrospection, self-awareness, and self regulation.
b) Better work culture and attitude formation at workplace by having democratic institutional values.
c) Revising code of conduct to put requirement of strict moral behaviour by public servants.

d) Institutionalizing dialogue between police and lawyers at regular intervals.
Rule of law must be enforced in public discourse. Democracy cannot be allowed to supersede by mobocracy. Public servant must not take the law in hand. We must create a democracy where Thomas Fuller's words, “Be you ever so high but the law is always above you”, comes true.

Case 2:  Divorce rates have spiked recently in India. Though, they are still low in comparison to many other countries, yet they have become a matter of concern for Indian society. Divorce petitions have gone up manifold and most are being sought over spur-of-the-moment emotion outburst, and in some cases over trivial, issues. Reasons for divorce have also changed from the past. Such negative developments are deteriorating the basic fiber of the social institution of marriage. Analyse this problem in detail from different perspectives and indicate various social, psychological and economic factors responsible for this problem? Also, distinctly bring out –
a) Why divorce rates are high, especially in urban areas, when compared to rural areas.
b) Why divorce rate is high even in the cases of love marriages.
c) What steps can be taken to stop couples from taking such strong decisions.

Marriage in India has the sanctity attached to it - an element of divinity in it. However, now the institution of marriage is undergoing change: 

• Individualistic, materialistic and self-oriented goals over family well-being.
• Tolerance threshold seems to have moved down while the egos of individuals have risen remarkably.
• The societal stigma attached to divorce is also diminishing.
• Priority of job over relationship
• Psychological tiredness - Couples are now getting mentally fed up with their spouse.

(a) Some of the major reasons for increasing rate of divorce in urban areas, as compared to rural areas are:

• Fast paced lifestyle of couple leading to less development of understanding and hence incompatibility issues.
• Economic independence of urban women allows them to move out of abusive marriages.
• The traditional counselling support to couples is missing in nuclear families.
• Work stress leads to frequent fights at home.
• Changing gender roles in cities leads to frequent fights.

(b) The divorce rate is high even in case of love marriage, because of the following reasons:

• Expectations Vs reality: When couples are in love, lots of positive attitude develops towards marriage. But, after marriage they realize the hard truth of relationship. Arranged marriages have much lower expectation, so they tend to survive.
• Arranged marriages have a firm root in society and culture. Couples get family support. But in love marriage this is missing.
• Unrest and inner dissonance are high as many a times such marriages are done against the wishes of family.

(c) Some of the steps which can be taken to prevent couples from taking such strong decisions are:

• Understanding balance between work life, social life and personal life.
• Formal and informal counselling professional expert counsellors and family members of the couple.
• Bridging communication gap.
• Transparency and trust development.
• Spending quality time together.
• Sorting out differences, by making slight adjustments in thinking and lifestyle.

However, despite the new strains on the marriage and the increasing number of divorces, the faith in marriage as an institution remains unshaken in our society.