Rule of Law vs Rule by Law

Context: The rule of law is what we fought for; the rule by law is an instrument of colonial rule. In the face of a pandemic, it’s important to reflect on how the tension between the two defines the quality of justice.

Defining the law

• Backed by a sovereign: Law is a tool of social control that is backed by the sovereign. 
• However, such a definition makes it a double-edged sword. It can be used not only to render justice but it can also be used to justify oppression.
• Imbibes within itself the ideals of equity and justice: An “unjust law” might not have the same moral legitimacy as a “just law”, but it might still command the obedience of some sections of the society to the detriment of others.

Difference between Rule of Law and Rule by Law:

    

• Rule by law - Colonial expression: The British colonial power used the law as a tool of political repression, enforcing it unequally on the parties, with a different set of rules for British and Indians.
• Rule of Law - Acted as the goal of national struggle: Our struggle for independence thus marked our journey towards the establishment of a state defined by the Rule of Law.

4 Principles of Rule of Law:

1. Laws must be clear and accessible: There cannot, therefore, be secretive laws, as laws are for society. Another implication of this principle is that they should be worded in simple, unambiguous language.
2. Equality before the law: Guarantee of equal justice will be rendered meaningless if the vulnerable sections are unable to enjoy their rights because of their poverty or illiteracy.
   • For e.g. The legal empowerment of women not only enables them to advocate for their rights and needs in society, but it also increases their visibility in the legal reform process and allows their participation in it.
3. Right to participate in the creation and refinement of laws: In India, it is done through elections where the people get to exercise their universal adult franchise to elect the people to the Parliament.
   • In the 17 national general elections held so far, the people have changed the ruling party or combination of parties eight times.
   • It has always been well-recognised that the mere right to change the ruler, once every few years, by itself need not be a guarantee against tyranny.
   • Telugu poet Maha Kavi Gurajada Appa Rao gave a universal definition of nation. He said, “a nation is not merely a territory. A nation is essentially its people. Only when its people progress, the Nation progresses”.
4. Strong independent judiciary: This is one of the main functions of the judiciary, that of judicial review of laws.

Way Forward: Strengthening the rule of law - 

• Assumption of responsibilities by the three organs:Of upholding constitutional values and ensuring justice in the first place, with the judiciary acting as an important check.

• Independent judiciary: 

• • The judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the Rule of Law would become illusory.
  • At the same time, judges should not be swayed by the emotional pitch of public opinion either, which is getting amplified through social media trials.