The 'Rule Of Law' and Sikh Thought Posted by Ranjeet on August 20 2008 14:59:30 Written by Kirpal Singh Chhabra 27th June 2007 The '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. Thenceforward the same became the law for the Sikhs. None was to be above it whether he was Sikh or Guru. Guru Gobind Singh declared that: Rehat Piyari Mujh Ko, Sikh Pyara Nahen and thereby expected strict obedience to this law. By having bowed his arrow as a gesture of saluting the grave of Sant Dadu Dayal, the Guru testified the adherence of his disciples to the injunctions laid by him. Breach of Rahet made any Sikh irrespective of his position liable to punishment i.e. tankhahia. The concept of equality before law can be seen in Sikh Thought from the following expressions by various Gurus and Bhagats in the Guru Granth Sahib, and writings of Sikh commentators. Equality by Rejection of Caste Distinctions What merit is in caste? Guru Nanak contends (Var Majh, Guru Granth, p. 42) and he himself answers, ‘This is the real truth that he who tastes the poison will die’. In the same strain Guru Amar Das ji advises against the caste system (Guru Granth, p. 128). Everyone says, ‘here are four castes, but it is from God that everyone comes. The same is the clay which fashions the whole world, ...who can say who has less of these or more’. Kabir enquires: How are you brahmin and I a low caste? Is it that I have blood in my veins and you have milk ?“ (Guru Granth, p. 324). Further Guru Nanak Dev declares: ‘You ought to see the light within all and not look up for caste, as the caste is of no consequence (Guru Granth, p. 349). Bhai Gurdas says in his Var 25 stanza 5: As the nature of the utensil has no bearing on the purity of the butter fat, similarly for the holy man, castes have no meaning. Sikhism observes equality among classes. Higher classes are not governed by any separate code of ethics. Even the King is no exception. In Ramkali (Guru Granth, p. 936) it is observed that neither the king nor the commoner remain in this world for ever, neither the rich nor the poor; when comes one’s turn, then nothing is there to help. The need for the recognition of human dignity irrespective of economic classes is also stressed in Bhai Lalo and Malik Bhaago’s parsang. Institution of langar initiated by Guru Nanak and consolidated and extended by Guru Amar Das similarly serve as a medium of social integration between the classes and the masses. Besides, this institution provides against the immoral social practice of untouchability which is by-product of the caste system. No discrimination on the basis of religion is advocated by Sikh Thought. Guru Gobind Singh says in Dasam Granth ‘one may be a Hindu or Muslim, all human beings belong to one brotherhood of mankind’. When Guru Nanak was asked at Mecca whether Islam is superior to Hinduism, the Guru pointed out that the worth was of the followers and not of the creeds. Again, Sikh Rahit Maryada directs that Sikhs ought not cause injury to the feelings of the followers of other religions. Equality among Men and Women On the eve of emergence of Sikhism, there were conflicting views about this matter. In Rig Veda husband and wife are described as taking equal part in sacrificial rites; in Smrities, a lower status has been accorded to women in general. The ostensible inherent attraction of the female was considered hinderance to sanyas and hence given lower status. Renunciation and asceticism being not the ideals in Sikhism, led to the restoration of the decent and equal status to women. Guru Nanak protests against any consideration of the woman as inferior. He says in Var Asa: From the woman is our birth...the woman is our friend...through the woman are the bonds of the world...why call the one evil who gives birth to Kings?’ (Guru Granth, p. 173) This gives high esteem to woman in Sikhism. In various moral codes of the Sikhs a large number of injunctions deal with the rejection of the following unethical practices: (i) Female infanticide (ii) Immolation of the widow with the deceased husband (sati) (iii) The wearing of the veils by women (purdah) These practices have been decried. Ex-communication for female infanticide and allowing of widow re-marriage have been advocated as positive steps to restore proper status to women. The Committee of International Congress on Rule of Law held in Delhi in 1959 called for ensuring social and economic conditions of life for the society. Sikh thought was conscious of this responsibility even much earlier. Establishment of gurdwaras besides serving as places for religious congregation and also served as centres of social equality, housed literacy classes as well as provided the necessities of life to the needy. In order to mobilise resources for meeting this obligation, one tenth of one’s income is required to be the voluntary contribution by the Sikhs for the organized help. Service, according to Guru Gobind Singh ought to be more of the oppressed and the needy so that they may be uplifted and brought on the same equal level. Justice and the Rule of Law After discussion of element of equality for all and equal protection for them at law, I touch again the issue of law in governance of Society in the sense of its doing and achieving justice in the context of Rule of Law. Virtue of justice is touched upon in various ways in Sikhism and is considered to be an important virtue in terms of its impact on the self as well as on social relationship, in terms of social equality, we have already seen the effort made in Sikhism to reject caste system which had become symbol of inequalities. Further, the virtue of justice also consists in (i) respect for the rights of others, (ii) non-exploitation of others. Guru Nanak declares in Var of Majh that to deprive others of their rights ought to be avoided as scrupulously as the Muslims avoid the pork and the Hindus consider beef as a taboo. He adds to it that ‘The Guru stands by thee if you usurpest not one another’s dues’ (Guru Granth, p. 141). Guru also speaks vehemently against exploitation of one by the other. In Var Malhar (Guru Granth. p. 1289), Guru Nanak calls this exploitation of the others as ‘devouring men’. The point Guru Nanak establishes is that exploitation of man is no less than carnivorousness. A just man would not exploit others even if he has the means and the opportunity for doing so. Justice is also understood in a legalistic sense in Sikhism. In this sense it represents an impartial disposition of the person who dispenses justice in deciding legal cases. Similarly in Prem Sumarg, justice is generally used in its legalistic sense and identified as a virtue of the ruler or king. In the dispensation of justice, one should not give any undue favour to members of one’s own religious or social groups. In the version of Prem Sumarg edited by Giani Randhir Singh, it is said that before the divine the ruler would not be questioned about his worship or obedience but the primary enquiry would be about the State of Justice in his domain. He would be asked as to who had to suffer the rigour of unjust pain. The ruler therefore ought to be vigilant to dispense justice carefully. If any powerful individual persecutes the weak or causes them any injury, the ruler ought to haul up the wrong doer and hand over to the weak so that, whatever wrong the former has done to the latter, the same may be done to the former. The administrator of justice ought not to give any weightage to the fact of his being a close relation of the accused. He ought to decide the case in impartial manner. In Var Sarang (Guru Granth, p. 1240), Guru Nanak advocates the virtue of justice in its legalistic sense and makes it to be the principal characteristic of the ruler or the administrator. Using the virtue of justice in the sense of self regulation the compiler of Prem Sumarg prescribes that the ruler also ought to subject himself to the same canon or law and justice. This means that the evils for which the ruler punishes the subject, should also be avoided by himself. The age of Guru Nanak was time of monarchical type of governments and the institution of separation of powers in three wings of the state in the sense of one completely independent of the other, was not available. Nevertheless as is indicated in the discussion of justice, obligation of the king to be impartial to the extent of not sparing near ones or even the self if wrong gets committed, is in virtual fulfillment of the last requirement of the Rule of Law namely judicial review of administrative actions. It is probably this contemplation which lead to emphasis on special qualities as pre-requisites for a ruler. In the Guru Granth (p. 1039), it is said ‘He alone who is worthy of throne should sit on the throne. Furthermore, he should be embodiment of divine wisdom, having fear of God (Guru Granth p.992) This verse has been subjected to different interpretations. One as already stated is that, that ruler can continue in power who has the five well known virtues of: Daya, Dharam, Jati, Sati, Santokh well entrenched in his personality. Such a person whatever his administrative actions by self or through subordinate executives will necessarily be judicious and impartial while sitting in judgement orders the correctness or otherwise of executive actions. The other interpretation of the verse as put forward in some quarters, though not very much in consonance with Guru’s time, is that the ruler should be a person of virtues with due regard/fear of panches. This interpretation brings in the element of democracy setting at naught monarchical element in the person of the ruler and thereby impart impartiality in taking view of the executive action. Even with my personal leaning for the former interpretation, Sikh thought seeks to achieve from the ruler impartiality and competence in his review of executive action and thus to a large extent meet the ultimate objective of involvement of court of law in Dicey’s doctrine of Rule of Law. To reinforce ‘the idea of impartiality and doing of justice by the king, Guru Nanak in Guru Granth Sahib stresses a ruler to be fair and just and make provision for dispensation of justice (Guru Granth, p.1240) In the same strain Guru Nanak did not ascribe divinity to King and put him to the fear of accountability and punishment for his misdeeds, when he said: Sahan Surat Gawaiya Rang Tamase Chaye (Guru Granth, p.417) He desires a God fearing ruler and requires him to imbibe virtues and refrain from revelment and debauchery. Guru Nanak wishes a ruler to pay attention to the welfare of his subjects. Thus it will be observed that the Sikh Thought virtually carries all elements involved in the concept of Rule of Law.