RULE OF LAW



A few words may be said here about the concept of Rule of Law as other ideas
and concepts relating to Constitutionalism will be discussed in due course in the
following pages.
The doctrine of Rule of Law is ascribed to DICEY whose writing in 1885 on
the British Constitution included the following three distinct though kindered
ideas in Rule of Law:


(i) Absence of Arbitrary Power : No man is above law. No man is punishable
except for a distinct breach of law established in an ordinary
legal manner before ordinary courts. The government cannot punish
any one merely by its own fiat. Persons in authority in Britain do not
enjoy wide, arbitrary or discretionary powers. Dicey asserted that
wherever there is discretion there is room for arbitrariness.


(ii) Equality before Law : Every man, whatever his rank or condition, is subject
to the ordinary law and jurisdiction of the ordinary courts. No man is
above law.


(iii) Individual Liberties : The general principles of the British Constitution,
and especially the liberties of the individual, are judge-made, i.e.,
these are the result of judicial decisions determining the rights of private
persons in particular cases brought before the courts from time to
time.


DICEY asserted that the above-mentioned features existed in the British Constitution. The British Constitution is judge-made and the rights of the individual form part of, and pervade, the Constitution. The rights of the individuals are part of the Constitution because these are secured by the courts. The British Constitutional Law is not the source, but the consequence, of the rights of the individuals as defined by the courts.
DICEY was thinking of the common law freedoms, such as, personal liberty, freedom of speech, public meeting, etc. What DICEY was saying was that certain Constitutions proclaim rights but do not provide adequate means to enforce those rights. In the British Constitution, on the other hand, there is inseparable connection between the means of enforcing a right and the right to be enforced.
Referring in particular to the Habeas Corpus Act, DICEY said that it was “worth a hundred Constitutional articles guaranteeing individual liberty.” DICEY however accepted that there was rule of law in the U.S.A., because there the
rights declared in the Constitution could be enforced, and the Constitution gave legal security to the rights declared.
The third principle is peculiar to Britain. In many modern written Constitutions, the basic rights of the people are guaranteed in the Constitution itself. This is regarded as a better guarantee for these rights and even in Britain there exists at present strong opinion that basic rights should be guaranteed. DICEY’S thesis has been criticized by many from various angles but, the basic tenet expressed by him is that power is derived from, and is to be exercised according to law.

In substance, DICEY’S emphasis, on the whole, in his enunciation
of Rule of Law is on the absence of arbitrary power, and discretionary power,
equality before Law, and legal protection to certain basic human rights, and these
ideas remain relevant and significant in every democratic country even to-day.
It is also true that dictated by the needs of practical government, a number of
exceptions have been engrafted on these ideas in modern democratic countries,
e.g., there is a universal growth of broad discretionary powers of the administration;
administrative tribunals have grown; the institution of preventive detention
has become the normal feature in many democratic countries. Nevertheless,
the basic ideas are worth preserving and promoting.
The concept of Rule of Law has been discussed in several international forums.
The effort being made is to give it a socio-legal-economic content and a
supranational complexion.
Rule of Law has no fixed or articulate connotation though the Indian courts refer
to this phrase time and again. The broad emphasis of Rule of Law is on absence
of any center of unlimited or arbitrary power in the country, on proper
structuration and control of power, absence of arbitrariness in the government.
Government intervention in many daily activities of the citizens is on the increase
creating a possibility of arbitrariness in State action. Rule of Law is useful as a
counter to this situation, because the basic emphasis of Rule of Law is on exclusion
of arbitrariness, lawlessness and unreasonableness on the part of the government.

Constitutionalism



Besides the concept of the Constitution, there is also the all-important concept of ‘Constitutionalism’. Modern political thought draws a distinction between ‘Constitutionalism’ and ‘Constitution’. A country may have the ‘Constitution’ but not necessarily ‘Constitutionalism’. For example, a country with a dictatorship, where the dictator’s word is law, can be said to have a ‘Constitution’ but not ‘Constitutionalism’. The underlying difference between the two concepts is that a Constitution ought not merely to confer powers on the various organs of the government, but also seek to restrain those powers. Constitutionalism recognizes the need for the government but insists upon limitations being placed upon governmental powers. Constitutionalism envisages checks and balances and putting the powers of the legislature and the executive under some restraints and not making them uncontrolled and arbitrary.


Unlimited powers jeopardize the freedom of the people. As has been well said:
power corrupts and absolute power corrupts absolutely. If the Constitution confers
unrestrained power on either the legislature or the executive, it might lead to
an authoritarian, oppressive government. Therefore, to preserve the basic freedoms
of the individual, and to maintain his dignity and personality, the Constitution
should be permeated with ‘Constitutionalism’; it should have some in-built
restrictions on the powers conferred by it on governmental organs.
‘Constitutionalism’ connotes in essence limited government or a limitation on
government. Constitutionalism is the antithesis of arbitrary powers. ‘Constitutionalism’
recognizes the need for a government with powers but at the same time
insists that limitations be placed on those powers. The antithesis of Constitutionalism
is despotism. Unlimited power may lead to an authoritarian, oppressive,
government that jeopardizes the freedoms of the people. Only when the Constitution
of a country seeks to decentralize power instead of concentrating it at
one point, and also imposes other restraints and limitations thereon, does a country
have not only ‘constitution’ but also ‘constitutionalism’.
‘Constitutions spring from a belief in limited government. According to
SCHWARTZ, in the U.S.A., the word Constitution means “a written organic instrument,
under which governmental powers are both conferred and circumscribed”.
He emphasizes that “this stress upon grant and limitation of authority is
fundamental”. As PROFESSOR VILE has remarked:
“Western institutional theorists have concerned themselves with the problems
of ensuring that the exercise of governmental power, which is essential to
the realization of the values of their societies should be controlled in order that
it should not itself be destructive of the values it was intended to promote.”
The idea of Constitutionalism is not new. It is embedded deeply in human
thought. Many natural law philosophers have promoted this idea through their writings.

Some of these philosophers are: ACQUINAS, PAINE, LOCKE, GROTIUS AND
ROUSSEAU. The Magna Carta (1215) strengthened the traditional view that law is
supreme. As observed by ARTHUR SUTHERLAND, “The Great Charter was obviously
a cherished standard, a welcome assurance that people could set some limitation on
the arbitrary power of the king.”
A written Constitution, an independent judiciary with powers of judicial review,
the doctrine of rule of law and separation of powers, free elections to legislature,
accountable and transparent democratic government, Fundamental Rights of the
people, federalism, decentralization of power are some of the principles and norms
which promote Constitutionalism in a country.

Free Press?

Democracy is a system of the government in which the people of the state or the citizens have the power to directly select their representatives amongst themselves and form a governing body such as a parliament, senate, or a body that can be called by other names. It is a system where eligible members of the state elect the government. Although it is flawed still it is the most preferred form of government because it assures that government caters to every person’s need unlike autocracy and if the government fails to do so, it can be changed after completing its tenure or even before if people would like to. India, the world’s largest democracy adopted it in 1947 after gaining independence from the British regime. Like every other thing, democracy lies on some foundation namely,  legislative, executive, judiciary, and most importantly media. But media is independent unlike the rest of the three pillars. It functions outside the government ensuring the ruling body has no control over it.  Because the Press is the voice of people, it is considered to be the voice of the voiceless. The Press existed even before independence and it certainly proves that any sort of media or press is by the people of the state not by the ruling body.  Democracy may be very powerful in its own terms and conditions but is not fully efficient in working without media, especially the free press. The media acts as a bridge between the government and the people as it tends to inform people about the functions performed by the government. It also informs the government officials about the problems faced by people in their respective constituencies. Hence, the democratic system is only fully efficient when the state enjoys a free press. It stands for the civic rights, political rights, and religious rights of the people. Media plays a vital role in forming opinions and influencing decision making by the people, comparing present and past experiences, actions, works, etc. done by different governing bodies. It also helps in giving feedback, exposure, and conduit mechanisms by the people to the government, so that the representatives can work according to their needs and requirements. Citizens receive the information about the new policies, projects, schemes, laws, amendments, etc. through media, by which they can assess the working of the government and analyze if the deeds are beneficial for them or not. The Press also acts as a crucial instrument for accounting. A person can forget the promises made by their leaders but a printed newspaper, video, or audio recording will act as a piece of reminding evidence for both citizens and the government after all the elected government is accountable to the citizens of the state. The people who work in the press must be unafraid. Some brave journalists do perform string operations, do investigations, and find out the reality. It tends to fight against corruption, unfulfilled promises, disloyal behavior, or misuse of power in public or private life. But due to its immense power several times it was hindered from functioning. History tells about many circumstances when the press was not allowed to function smoothly. Indira Gandhi during emergency choked the print media by not giving them advertisements cutting off their revenue. Also, electronic media was controlled by the government and therefore it easily hid that emergency has been declared. Even the British did not spare the Indian media. Press worked so vigorously during the regime in promoting the idea of freedom that they had to bring the Indian Press Act 1910. Today Indian Press has been ranked 140 out of 180 countries which participated in the index. This is extremely saddening and frightening since India being the world’s largest “democracy” is now trying to undermine its own foundation. The audacity with which many Indian news channels spread hate is deeply terrifying, people should gain consciousness because a lie told a hundred times becomes the truth. We should ask ourselves, “Is our Press really free?”

Social Media surveillance

In the past decade, social media has gone from being extra entertaining to a fully integrated part of our lives. Social media is a good way to keep in touch with friends, families, and acquaintances, especially in the contemporary world. But it is not only being used by us but governments as well to keep in touch with its citizens. Governments are increasingly purchasing cutting edge technology to keep an eye on its citizens’ behavior on social media. This form of mass surveillance has made its way to a range of countries, from authoritarian powers to smaller and poorer countries. Coupled with an alarming rise in the number of countries where social media users have been arrested for their legitimate online activities, the growing employment of social media surveillance threatens to squeeze the space for civic activism on digital platforms. For e.g. in 2017, at least 7 people were arrested for posting ‘objectionable’ posts on social media against newly elected Chief Minister of Uttar Pradesh. As quickly as social media has insinuated into politics, the workplace, and elsewhere it continues to evolve at lightning speed making it a conundrum to guess which way it will morph next. Social media is not a utility, where people care about whether it works or not, rather people look for new hot things especially the younger generation.

Social media surveillance refers to the collection and processing of personal data pulled from digital communication platforms, often through automated technology that allows for real-time aggregation, organization, and analysis of large amounts of metadata and content. Governments have long employed people to monitor speech on social media, including by creating fraudulent accounts to connect with real-life users and gain access to networks. With the colossal amount of personal data people willingly release on social media, government agencies can easily collect and analyze populations of people as they please. Authorities in Iran have a legion of volunteers who monitor online speech. Any citizen can report for duty on the Cyber Police (FATA) website. Similarly, the ruling Communist Party in China has recruited thousands of individuals to sift through the internet and report problematic content and accounts to authorities. In India, various political parties have IT cells, although BJP has allegedly the strongest IT-cell. These groups not only monitor social media platforms but also are responsible for hate comments, cleaning some one’s image, or spread fake news. The market for social media surveillance has grown by large, giving intelligence and law enforcement agencies new tools for combing through massive amounts of information. Justifying their efforts in the name of enhancing security, limiting disinformation, and ensuring public order, governments have effectively co-opted social media platforms. While these platforms typically present themselves as social connectors and community builders, state agencies in repressive countries see them as vast storehouses of speech and personal information that can be observed, collected, and analyzed to detect and suppress dissent. Often the explanations leading to the arrests are stated that “the material was provocative and could lead to communal clash”, but it reflects the incompetency of the state to maintain harmony, and increased intolerance.China is a leader in developing, employing, and exporting social media surveillance tools. Its agencies work closely with leading companies to monitor individuals online. A complex web of regulations gives the Chinese state access to user content and metadata, allowing authorities to more easily identify and reprimand users who share sensitive content. Freedom of Net 2019: The Crisis of Social Media, examined 65 nations worldwide to find out, China topped the list of “World’s worst abuser of internet freedom” for 4 years in a row. In contrast, Iceland was “The World’s best protector of internet freedom”. India scored 55 out of 100 and was declared “partly free”. With the Internet restrictions closing in, it is a warning call to wake up to your rights.

What’s most alarming is how populist leaders and far-right groups have grown adept not only at creating viral disinformation but also at harnessing networks that disseminate it. The majority of the disinformation, wrote the authors, are from domestic sources rather than foreign interference.

Strong protections for democratic freedoms are necessary to ensure that the internet does not become a Trojan horse for tyranny and oppression,as technology advances to greater heights, the protection of our citizens must be greater as well.

Image by rawpixel.com

Students’ Engagement with Politics

The average Indian student’s encounters with the word ‘politics’ is often colored with negative experiences and connotations. When one talks of politics at the workplace or at the church, it is always used in a manner that signifies that something is wrong there – there is a moral implication in these ideas. Many use the word itself as referring to something which is the domain of a certain few who are power-hungry and seek to control. This is because their definition of what is political is extremely limited and their experience of the world has been limited to certain spaces that they inhabit. Many do not see their duty as a citizen of a democratic country to include anything but going to the voting booth whenever elections come along. Many also do not know whom to vote for or what they stand for, so they are easily persuaded by campaigners, many are promised material benefits, many others go with what their family or friends say, and still others for whoever appears to match their personal tastes. With India being the largest democracy in the world and yet finding itself the hub of many communal riots and systemic shutting down of voices, it is time we start asking what our role is in a political system.

The student is considered the future of the country. She is the one who is going to inhabit the world that is currently being built and who will go on to shape and change the world as she moves into the public arena. In this context, it is absolutely vital that she be able to understand what the system that governs her stands for and how it functions. A general understanding of political systems of governance, ‘political literacy’ itself is one of the most essential qualities that an individual should possess. This also makes the person aware of the challenges that are facing their society, the issues that other sections of the society are fighting against, and also nurtures a sense of responsibility. It will aid in creating a bent towards social action and for standing for what is right.

It is in recognition of the potential that resides in young minds and their part in creating the future that many fundamental aspects of the government are included in school curriculums for all students and not just those going onto study political science or sociology. This is also why the government’s move to remove many-core passages from CBSE textbooks which talk of these very things is looked upon with apprehension. This is also why political parties are allowed to exist on many college campuses, although this is becoming rarer now. It is in these formative years that a student’s capacity to think is shaped by what he reads and sees, and his perception of the world expanded. While many college politics stories turn violent, the solution is not to curb all activism but to instill principles that will guide students as they make decisions and decide what is worth standing for. The idea that machoism and calling for blood is the epitome of political interaction has to be dismantled and replaced by consistent engagement and listening. There should be dignity and freedom of making choices that are based on strong moral principles, and spaces of dialogue created. The youth will not disappoint if they are given the tools they need to navigate these discussions, and they are standing up for causes as is evident from the number of student-led protests that happened in our country in the past one year. Students are to be exposed to arenas of political interaction and allowed to participate so that they can develop their own ways of seeing and thinking, as well as ensure that the country is in safe hands.

The New Watchdog

Mainstream media to new media- how has the shift affected political reporting

Politics is undoubtedly a game for supremacy solely played in the name of the people for evoking national interest. Fred Fedler was right then he said “journalism is built on reporting government”. The idea of ‘the watchdog’ means that the journalist, as an independent observer without any vested interest in any side of the controversy, can inform the public about what is going on, particularly if the government is corrupt or even incompetent. However, the political journalists do not play this role flawlessly. 

There is a paucity of good political reporting in India- reporting with an insight, reporting that captures in action the trouper of the political field, reporting that exposes the petty politics and the never ending hypocrisies of political parties and the conspiracies of those in power.

The grave situation that the Indian democracy is in, is that it is they who guide and shape the destiny of some 135 crore people. Lacking ideas, bereft of intelligence and character, they exploit religion and caste to stay in power. 

Most political commentators and reporters on traditional medias like mainstream news channels and newspapers have glorified politicians and never truthfully presented their failures as much as their achievements. Programmes of political parties are rarely critically evaluated by reporters of most traditional media and their flaws are never commented upon so that the people are carried away by their rhetoric or patriotic postures. The Inadequate political coverage, not judged by the quantity of the news brought in or reported but by the quality of it, brings down the credibility of the traditional media. 

The mediatization of the political news necessitates that media content is governed by media logic rather than political logic, and can be indicated by media interventionism where the journalists are in control of news making. (Esser, 2008, Strömbäck and Dimitrova, 2011, Zeh and Hopmann, 2013). 

The way we use social media today impacts what we read and how we read or listen to news. Consider politics for that matter- Political parties bank on news channels, such as ZEE News or NDTV to get their updates on how the election campaign is going. Unbeknownst to many, both of these news outlets are on opposite sides of the political spectrum. If you tune into Zee News, you will get a completely different view of any candidate than you would on NDTV and viseversa. This type of controlling what people read and hear causes a lot of misinterpretation. This is where political reporting in new media comes into, where you not just read what the journalist has to say but also what others think about it and more importantly why they think the way they do. Unlike the traditional media, you don’t hear one side of the story, on new media platforms you can view multitude versions of the same story. With the advent of political reporting via social media and news portals, journalists who act like the watchdogs are now backed up, not only by their organisation, but also by their viewers, readers and followers who make an informed choice. 

At the same time, the new media has initiated trends time and again. exposed how the traditional political reporters undercut the ideal aims of a free democratic press. The watchdog role is now played by the new media which had previously only been performed by trained political journalists who even under the worst of circumstances focused on uncovering the facts surrounding serious political wrongdoings.

Knock knock. Who’s there? Democracy. Democracy who?

Democracy in layman terms is the government of the people, by the people and for the people. Media is being considered as the fourth pillar of democratic society after executive, legislature, and judiciary. One of the crowning glories of the democratic system is the freedom of expression and the space that is provided to views from different sections of the society. The last few years witnessed an enhanced interface between the media and the common man, thanks to social media

The role of Social Networking Sites in Indian politics has risen tremendously in recent years. Different Indian political parties have their websites and some of them also use other social mediums to interact with people. With every party having its website and leaders being active on different media it makes the citizens feel that they are within their reach. It feels like the leaders are a touch away. Mr. Shashi Tharoor of Congress Party was one of the first politicians to start tweeting and has a separate fan base for his tweets now. Through social media, politicians now constantly display their message through endless campaigns, see direct responses to their actions via Facebook or Twitter, and connect with the public. One of the most recent example is Bharatiya Janata Party’s ‘Main Bhi Chowkidar’ campaign with Prime Minister Narendra Modi and other BJP leaders, where an auto-generated response was sent to all those who tweeted to the PM, giving the illusion that they were contributing to something large.

It is important to note that political engagement through social media is not limited to adults, but young potential voters increasingly use social media for online political participation. Especially younger people are using social networking platforms such as Twitter to develop an individualised form of activism that they connect to most. Unlike Mainstream media where narratives are indirectly controlled, influenced and favoured by the business houses and political parties that are funding the channel, Social media is comparatively a less regulated space.

Ravish Kumar on his Prime Time show on NDTV urged everyone to stop watching television back in March 2019. Why would someone who earns his living through mainstream television media tell you to do that? This shows how grave the situation was and still is. Public issues have disappeared from the channels, when Indian states were reeling under floods, the channels were still flooded by anti- Pakistan narratives, tukde-tukde gang narratives and the never-ending glorification of the honourable PM. Is TRP more important than highlighting important issues? Is selling news more important than upholding the fourth pillar? If we see the current media scenario then the answer to the latter question seems too easy.

Wouldn’t you agree if I said that the watchdog, or in other words the press and the media have a significant influence on society? Then is it fair to have corporate houses and political parties with vested interests invest in the media?

India News is owned by Karthikeya Sharma, son of a Congress leader. News 24 is controlled by Rajeev Shukla, a Congress leader and his wife Anuradha Prasad who is the sister of BJP leader, Ravi Shankar Prasad. Times Group is owned by Bennet & Coleman. The Italian, Robertio Mindo who has a share in the group is a close relative of Sonia Gandhi. CNN- News 18 is owned by Mukesh Ambani. Republic TV is owned by ARG Outlier Media Pvt Ltd and one of its biggest investors is Rajeev Chandrasekhar, a BJP leader- These are just a few examples out of the many news channels.

Editors are pulled up for putting their opinion, journalists are asked to toe the line, and media houses align themselves with different political ideologies and the interests of the owners and sponsors. Is it really possible to have a free and a fair media with this direct hold?

‘Freedom of the press is not just important to democracy, it is democracy.’

Walter Cronkite

India is the world’s largest democracy, and the media mustn’t be controlled by any political party, big corporate houses or any other sector. The Press and the media is the voice of the voiceless and should promote the rights of not just the majority but also the minority; it is the duty of the press of any country to ensure that the government is functioning properly and no section of the society is left behind.

Sources-

  1. Role of media in Indian democracy https://shodhganga.inflibnet.ac.in/bitstream/10603/203650/11/11_chapter5.pdf
  2. https://www.thenewsminute.com/article/critic-inside-ravish-kumar-speaks-tnm-state-indian-journalism-109378
  3. Participatory Politics: New Media and Youth Political Action- University of Chicago
  4. Who owns your media?- https://www.newslaundry.com/2014/02/05/who-owns-your-media-4https://cablequest.org/index.php/news/channels-owned-by-polticians