Standing sentinel


Soli J. Sorabjee

June 15, 1215, is a momentous date in the history of civil liberties of mankind. It was on that day, at the green fields of Runnymede, a meadow on banks of the river Thames, that the document known as Articles of the Barons was agreed upon, signed and sealed by King John.

It is interesting to note the circumstances preceding the signing of the charter. King John was in need of funds, but his demands for money from barons fell on deaf ears. The barons began to make their own demands. In January 1215, a group of them appeared before the king and asked for a charter from him confirming basic liberties granted by earlier kings of England. In April 1215, the barons presented King John with more specific demands. The king flatly rejected them. In response, the barons withdrew their allegiance to him and started to form their own rebel army. John ordered his sheriffs to crush the rebel barons, who retaliated by occupying London. A stalemate ensued.

About 40 rebel barons and their forces held London as well as their own fortified castles throughout England. King John commanded a slightly smaller force of loyalist barons and mercenaries. Unaligned were about 100 barons and a group of church leaders headed by Archbishop Stephen Langton. Efforts were made for a negotiated settlement to prevent an all-out civil war. A meeting was arranged at Runnymede. In the ensuing days, the document went through modifications and refinements, and the final version of Magna Carta was accepted by the king and the barons on June 19, 1215.


In its original form, Magna Carta consisted of 63 articles or chapters. Many concerned matters of feudal law, which were important to the rebel barons, but are of little relevance today. The most salient part of Magna Carta is Chapter 39: “No free man shall be arrested or imprisoned or disseised [deprived of his property] or outlawed or exiled or in any way victimised, nor shall we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land [emphasis added].”

The significance of this clause lies in the basic idea that a ruler, just like everyone else, is subject to the rule of law. When King John accepted Magna Carta, in effect he accepted the basic tenet of the rule of law as articulated by poet Thomas Fuller and which has been adopted by courts: “Be you ever so high, the law is above you.”

Another principle of the rule of law is that no action which is adverse or prejudicial to a person can be taken without the sanction or backing of law. Consequently, no authority can ban a book or prohibit the screening of a movie without the authority of law. Again, a meeting cannot be prohibited unless there is statutory backing for that action.

In all likelihood, Lord Coke had this fundamental principle in mind when, during his speech in the House of Commons on May 17, 1628, he observed that Magna Carta was such a fellow that he will have no sovereign clearly implying that the sovereign is not above the law. Eleanor Roosevelt, who chaired the meeting in Paris on December 10, 1948, that led to the adoption of the Universal Declaration of Human Rights by the UN General Assembly, described the declaration as Magna Carta of mankind. It is noteworthy that in the third preamble to the declaration, it is mentioned that human rights should be protected by the rule of law.

The rule of law principles run like a golden thread in our Constitution. Part III of the Constitution guarantees certain fundamental rights. For example, Article 14 states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

No fundamental right in the Constitution is absolute. Reasonable restrictions can be imposed on the exercise of the various fundamental rights guaranteed under Article 19, but the primary requirement is that the restriction must be prescribed by law, not by administrative non-statutory instructions or circulars. Consequently, freedom of speech and expression and freedom of the press cannot be restricted, save by enacted law. Again, no tax can be levied or collected except by authority of law (Article 265). Article 300-A stipulates that no person can be deprived of his property, save by authority of law.

COVER STORY Words of honour: A Magna Carta manuscript carrying the seal of King Edward I | Getty Images

It is noteworthy that, in its unique decision in Kesavananda Bharati and its subsequent decision in January 2007 in I.R. Coelho vs State of Tamil Nadu, the Supreme Court regarded rule of law as part of the basic structure of the Constitution. Consequently, rule of law cannot be abolished even by a constitutional amendment.

Magna Carta was referred to by our Supreme Court in its recent judgment in the Mohd Arif case in September 2014. The Supreme Court traced the origin of Article 21, which guarantees the fundamental right to life and liberty, to Magna Carta. Justice Rohinton Nariman, speaking for the bench, observed: “This Article has its origin in nothing less than Magna Carta (the 39th article) of 1215 vintage, which King John of England was forced to sign. It is a little known fact that this original charter of liberty was faulted at the very start and did not get off the ground because of a papal bull issued by Pope Innocent III declaring this charter to be void. Strangely, like Magna Carta, Article 21 did not get off the ground for 28 years after which, unshackled, it has become the single most important fundamental right under the Constitution of India.”

The term 'due process of law', as used in the Federal Constitution of the United States of America, has been repeatedly declared to be the equivalent of the phrase 'law of the land', as used in Magna Carta.

Magna Carta is not an ephemeral piece of legislation. Over the years, it has become a symbol and a battle cry against oppression and arbitrariness. It has inspired successive generations, who regard it as a true sentinel for protection of fundamental rights and liberties.
Sorabjee is former attorney-general of India.

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