India Law Journal

The ‘Rule of Law’ and separation of powers are two of the main essentials of any democracy. For a democracy to be successful it is needed that these two principles be always upheld. There are numerous cases of the executive encroaching onto the judiciary’s territory, and of the executive taking a number of arbitrary actions. This goes against the essence of ‘Rule of Law’. ‘Rule of Law’ today envisages controlled power and not arbitrary power. It is the role of the judiciary to ensure that this principle is upheld. In the recent United Kingdom High Court judgment of, The Queen on the Application of Corner House Research and Campaign against Arms Trade vs. The Director of the Serious Fraud Office and BAE Systems PLC, which was upheld by the House of Lords, these principles were highlighted and upheld. This judgment is noteworthy for the simple reason that the two judges in this case refused to be bogged down by governmental pressure and gave a judgment which goes on uphold the ‘Rule of Law’ and also prevented the executive encroachment into the judiciary’s functions.

The facts of the case are that, The BAE Systems was under a contract with Saudi Arabia for the purchase of Al-Yamamah aircrafts. In relation to this contract, several allegations of bribery had been made against the BAE. The Serious Fraud Office (SFO) had been appointed to investigate into the matter. In the course of this investigation the BAE was asked to disclose the details of payments to agents and the consultants with respect to the contract of the aircrafts.

In response to this, the solicitors for BAE wrote back to SFO saying that the investigations should be halted, as the continuing investigations would seriously affect the diplomatic relations between the U.K and Saudi Arabia and also that the safety of the British Citizens would be affected. Further, also that the investigations would prevent UK from clinching the largest export contract of Al-Yamamah aircrafts. This however, did not stop the investigations from continuing.

In July 2006, the SFO was about to access the Swiss Bank accounts of BAE. This caused a stir and made the Prince Bandar of Arabia to convey to the then Prime Minister of UK, Tony Blair that if the SFO did not stop looking at the Swiss Bank accounts of BAE, and also cease other investigation, then the contract for the aircrafts would be called off and both intelligence and diplomatic relations between the two countries would be seriously cease.

This made the government to rethink its policy, and it was agreed among the Prime Minister and other ministers that if the investigation into this continued then the relations between the two countries would be affected and a severe blow would also be dealt on UK’s foreign policy objectives in the Middle East. Further, there would be a threat to the internal security of the country.

In light of the above developments the Director of SFO terminated all investigation proceedings as it was felt that the continued investigation posed a serious threat to the country National and International security and also affect the lives of their citizens. It was in this light that an NGO called Corner House Research, applied for a judicial review of the decision to terminate the investigation process. It was mainly contended that the SFO Directors orders to terminate the investigations, merely on the threat of Prince Bandar to Tony Blair (which was an accepted fact), went against the principle of ‘Rule of Law’. The government on the other hand contended that, judicial intervention was unwarranted in this case, as it was an executive decision. The court in its judgment in this case dealt with the principle of “separation of powers.”

Article 50, of the Indian Constitution states that the judiciary should be kept separate from the executive. Separation of judiciary is the bed rock of a democracy. It is necessary for the administration of justice. There is a need that the judiciary be independent at all levels. The independence is not only needed in the higher judiciary but also the subordinate judiciary. The Supreme Court in Kumar Padma Prasad vs. Union of India has stated that Independence of the Judiciary is a part of the Basic Structure of the constitution. In the S.P. Gupta case the Supreme Court laid down that, it is this concept of independence of the judiciary that keeps the government organs within the limits of the law and protects the citizen against the abuse of power by them; therefore it was essential that the judiciary be kept free form government pressure and influence.

The Second Judge’s Case, SC advocates on record v. Union of India, Laid emphasis on the importance of the independence of the judiciary in a democracy. This judgment also recognized that independence of the judiciary was an important part of the basic structure of the constitution and that this concept was essential in order to secure the rule of law (which is again important for the preserving of a democracy). The court in the above case accepted that the judiciary is not to interfere with an executive decision taken by the government, especially when it deals with the foreign policy decisions of the country. However, the court also pointed out that, it is the duty of the courts to ‘resist’ the executive from encroaching onto the areas for which the judiciary is responsible.

The court held that in the instant case, if the investigation process was stalled by the SFO, then the crimes that were being committed would not be exposed and that was in a way preventing justice from being meted out against the culprits. This was a “direct threat to the administration of public justice within the United Kingdom”, and it was the duty of the courts to step in and prevent this from happening. Therefore in this case, the intervention by the judiciary was justified.

Rule of law is one of the essentials of a good democracy or any form of government. The concept of Rule of Law essentially entails the absence of any centre of unlimited or arbitrary power in the country. Rule of law essentially connotes a higher kind of law which is reasonable, just and non-discriminatory.

In the landmark Indian judgment of Kesavananda Bharati, the Supreme Court held that, ‘Rule of Law’ was a part of the basic structure of the constitution. Therefore it is very important that the judiciary ensures that the ‘Rule of Law’ is always upheld. The court in the above judgment invoked this principle of “rule of law”, and stated that, if the British Government “surrendered” to the threat and public pressure as regards this deal, then it would undermine the “rule of law.” The court said that, the government of a country should be resolute, and not surrender itself to threat or pressure of any kind, even if it was from a foreign country. Surrendering does not achieve any goal, apart from the fact that it gives a person or a country (as the case may be) in the stronger position, an added impetus to continue these threats in order to achieve their objectives, and the understanding that the courts cannot interfere in this only helps there cause. This, the court says, has to stop at once, and through this judgment they tried to send across the message that, any sort of pressure tactics would fail, and also that the judiciary would not permit any executive intervention in their area.

Thus this judgment is an emphatic one, wherein the judges refused to get influenced by the various reasons given by the government as to why the investigation should be stopped, and continued to go with the usual judicial process and ordered that the investigation be continued. It is after all the role of the courts to “protect the rule of law by ensuring the independence of the decision-maker, free from pressure and threat.” The judges further added that, “the rule of law is nothing if it fails to constrain overweening power.”