SHIVANGI MAHAJAN
ABSTRACT: This research paper delves into the everchanging
nature of the rule of law and how it has been implemented in India throughout
its history. Why do we expect law to bring about better and more just
societies? Around the world, systems of accountability are weak and dictators
find ways to avoid the constraints of both national and international law. The
paradox is that we believe in the rule of law and that we insist it should
constrain power in practical and effective ways to be worth creating at all. Rule
of law is one of the basic principles of the English constitution. This
doctrine has been enshrined in the Constitution of U.S.A and in the
Constitution of India as well.
KEYWORDS: - Rule of Law, Power, International
and National Law, History.
INTRODUCTION:- Administrative law is a separate branch of law and a
subject for academic study but since last few decades, it has gained full
stature as a “responsible” field of study for the law students and practitioners.
So, to recognize its independent existence, the people of England used the
weapon of Dicey’s concept of Rule of Law to strike the growth of administrative
law. ‘Rule of Law’ is a new ‘lingua franca’ of global moral thought and the
supreme manifestation of human civilization and culture. Thus, rule of law adds
eternal value to the Constitution and an inherent attribute for democracy and
good governance. This concept is an animation of natural law and remains a historical
idea which makes a powerful appeal not by a powerful man but by the Rule of Law.
So, it can be well quoted by Lal Bahadur Shastri that –
“The Rule
of law ought to be respected with the goal that the basic structure of our
democracy is maintained and further reinforced”.
CONCEPT OF RULE OF
LAW :-
As the
term itself connotes, “Rule of Law” means rule of law and not of men. The
expression “Rule of Law” is derived from the French phrase ‘le principe de
legalite’ meaning the principle of legality. The doctrine has been described as
supremacy of the law. This means that where there is rule of law no person can
be said to be above the law, even the functions and actions of the executive
organ of the state shall be within the ambit of the law.
Rule of
law imposes a duty on all citizens in a parliamentary democracy to obey the law
itself must be just law and not arbitrary or oppressive law. The aim of Rule of
law like other constitutional principles is the uplifting of freedom and
fundamental rights of the people. The rule of law has propounded to make sure
that the executive doesn’t use law of the land or country to oppress or curtail
freedom of individuals as they are found in the bill of rights. In the Indian context,
the meaning of rule of law has somewhat been much expanded. The Supreme court
has in various occasions further enunciated and illustrated the rule of law
through its judgement in furtherance of the basic principles as laid down by
A.V. Dicey .
It is considered as a part of the basic structure of the Constitution and, hence,
it cannot be abrogated or destroyed even by the Parliament. The ideals of constitution;
liberty, equality and fraternity have been enshrined in the preamble. Rule of
law mandates that no person shall be subjected to harsh, uncivilised or
discriminatory treatment even if the object is to protect and secure law and order.
THE ORIGIN OF THE
RULE OF LAW
:-
The rule
of law is an established principle with a long history. Around 350 BC,
prominent ancient Greek philosophers like Plato and Aristotle brought it up in conversation.
To paraphrase Aristotle, “Law should govern and those in power should be
servants of the laws.” This statement demonstrates Aristotle’s support for the rule
of law. Later on, other European medieval philosophers – including Hobbs, Locke,
and Rousseau- took up the cause via the social contract thesis. In the own
unique ways, Indian thinkers like Chanakya have advocated for the rule of law,
arguing that the king ought to be governed by the letter of the law. The
establishment of legislatures, according to Locke, ought to be done by majority
vote.
The idea
behind this came from Sir Edward Coke, who was the chief justice during reign
of King James. He insisted that the monarch ought to submit to God and the law.
He proved that the rule of law is paramount and that it may be used as a weapon
against the executive branch.
RULE OF LAW POST –
INDEPENDENCE:-
The
Indian constitution’s founders welcomed the rule of law. The preamble
guarantees the provision of equal status and opportunities, as well as the
promotion of these principles among all individuals. It grants citizens the
most crucial basic rights.
The Supreme
Court and High Courts are responsible for safeguarding the Articles from12 to
35 of part 3 of the constitution of India
According
to Article 14 of the constitution, the State is prohibited from denying any
person equality before the law within the territory of India. Nevertheless, it
should be acknowledged that there are a limited number of cases where the
principle of equality does not apply.
As per
Article 361, the President or Governor of a State cannot be held accountable in
court for their actions and responsibilities in their respective offices. However,
the President’s behaviour can be reviewed if charges are brought against them
under Article 61. This article allows any individual to initiate legal
proceedings against a state Governor.
As to
Article 20[1] of the constitution, individuals can only be convicted of an
offense if they have violated a law that was in effect at the time they
committed the act in question.
Article
21 states that individuals cannot be deprived of their life or personal freedom
unless it is done in accordance with the legal process.
According
to Article 14, discussions about the behaviour of judges in the Supreme court
or High court during their duties are not allowed in Parliament, unless there
is a motion to address the President and request the removal of the judge, as
specified later on. The principle of the rule of law is considered an integral
component of the fundamental framework of the constitution, and as such, it is
immune to being abolished or eradicated by the parliament. The Rule of Law governs
and oversees every aspect of the state’s institutions. The mandate is our constitution.
It is a principle that governs the legal system.
DICEY’S CONCEPT:-
The expression
rule of law was given prominence by Dicey. According to him, the rule of law is
one of the cardinal principles of the English legal system. He attributed the
following three meanings to the doctrine:
— Supremacy
of law
— Equality
before law; and
— Predominance
of legal spirit.
1.
SUPREMACY OF LAW: -
Expounding the first postulate, Dicey states that rule of law means the
absolute supremacy or predominance of regular law as opposed to the influence
of arbitrary power or wide discretionary power. It excludes the existence of
arbitrariness of prerogative power or even wide discretionary authority on the
part of government. He asserted that the Englishmen were ruled by the law, and
by the law alone; he denied that in England the government was based on
exercise by persons in authority of wide arbitrary, or discretionary powers.
Dicey’s claimed
“wherever there is discretion there is room for arbitrariness and that in a
republic no less than under a monarchy discretionary authority on the part of its
subject”.
Accordingly Wade also says, “The Rule of Law
requires that the government should be subject to the law, rather than the law
subject to the government”.
2.
EQUALITY BEFORE LAW: - Explaining the second postulate of the doctrine of
rule of law, Dicey says that there must be equality before the law or the equal
subjection of all classes to the ordinary law of the land administered by the
ordinary law courts. In England, he maintained, all persons were subject to one
and the same law, and there were no extraordinary tribunals or special courts
for officers of the government and other authorities. According to him courts are
supreme throughout the state. In this connection he criticized the French legal
system of droit administrative in which there were separate administrative citizens.
In his view, exemption of civil servants from the jurisdiction of the ordinary courts
of law and providing them with the special tribunals was the negation of
equality.
3.
PREDOMINANCE OF LEGAL SPIRIT: - Explaining the third postulate, Dicey says that the
general principles of the constitution are the result of judicial decisions of
the courts in England. In many countries rights are guaranteed by a written constitution;
in England it is not so. Those rights are the result of judicial decisions in
concrete cases which have actually arisen between the parties. The constitution
is not the source but consequence of the rights of the individuals. Dicey
apprehended that if the source of fundamental right of the people is any
written constitution, the right can be abrogated at any time by amending the constitution.
In this way rule of law postulates judicial supremacy.
RULE OF LAW IN INDIAN CONSTITUTION :-
The notion of the rule of law can be
ascribed back to the Hindu scriptures in India. Its roots can also be detected
in sagas and epics such as the Ramayana and Mahabharata, and also the ten commandments,
the dharma chakra, as well as other fundamental sacred writings. There have
been no writings in contemporary days that expressly examine or acknowledge the
theory of rule of law. The rule of law is considered to be to be incorporated in
numerous clauses of the Indian constitution. The founders of the constitution were
not just acquainted with Dicey’s postulates of rule of law, but also with their
application in British India.
The constitution of India is the guiding
principle of the nation, from which all other laws acquire their legitimacy,
making all other laws acquire their legitimacy, making all other laws
subordinate to it and following the postulates of the rule of law outlined by
the constitution.
Furthermore, Article 13[1]
specifies that every law passed by the legislature must be in accordance with
the provisions of the constitution, or it will be considered unconstitutional.
As a result, any new law must be consistent with the requirements of the constitution.
Even the preamble of the constitution of India includes the word justice, sovereignty,
and equality, which are unambiguous indicators of a just and fair government
with no discrepancy amongst the masses regardless of their social status.
Dicey’s enumeration of equality before
the law is included under Article 14 of the Indian constitution, which
establishes the idea of equality before law and equal protection under the law.
The right to life and personal liberty, which is a fundamental human right, is
also enshrined in the constitution for all citizens.
The word ‘rule of law’ has no set
formulation in the Indian constitution. However, courts in India use it in a
plethora of judgements. In India, the proverb ‘The King can do no wrong’ does
not apply, as all public institutions are subject to the jurisdiction of common
law courts and the same sets of laws. The constitution is the supreme law of
the land, superseding the 3 organs of the government i.e.,
—
The Judiciary
—
The Executive
—
The Legislature
These
three governmental organs must act in accordance with the principles enshrined
in the Constitution of India.
RULE OF LAW AND JUDICIAL SYSTEM OF
INDIA:-
The
judiciary has consistently worked to uphold the Rule of Law and has had equal
backing from citizens and the state by adhering to the legislation as laid down
by the legislature and enforced by the courts. Though there have been numerous
occasions where the citizens have engaged in violence against the parliamentary
act or any judicial proceedings or doing actions contrary to law.
Along
with the provisions of the constitution, the judgements given
by several courts and tribunals have played a prominent role in the
interpretation and advancement of the doctrine of rule of law in India. It has
been opined by several distinguished jurists of India that the constitution of
India is founded on the principle of the rule of law.
In a subsequent decision, the supreme court observed
that the rule of law, as enshrined in Article 14 of the constitution, is a
basic feature of the Indian constitution and thus cannot be amended, revoked,
or modified even by a constitutional amendment under Article 368 of the constitution.
In accordance with the third postulate of the rule of law principle, India has
a strong judicial system that checks other organs of government while carrying
out work independently.
LANDMARK CASE LAWS: -
— In Keshavananda
Bharati V. State of Kerala ,the
court propounded the principle of basic structure and held that any part of the
constitution can be amended without modifying the basic structure of it.
— In the case of
Indira
Gandhi V. Raj Narain, the court
decided that the ‘rule of law’ is also a part of the basic structure of the constitution
and hence, it cannot be amended.
— In the case of
State
of Bihar V. Sonawati Kumari , the
court held that as per the concept of ‘rule of law’, all the authorities operating
within the state including executive government is bound to obey the rules.
— In the case of
Bachan Singh V. State of Punjab ,
the five bench judges comprising of justice Y Chandrachud, justice A Gupta,
Justice P Bhagwati and Justice R Sarkaria, held that the concept of rule of law
is free from arbitrary action and if any action is done with arbitrary power,
then it will be considered as the denial of rule of law. This case is also
known as “death penalty case”.
— In the case of
Som
Raj V. State of Haryana, the three
bench judge of supreme court comprising of Justice K Puttaswamy, justice
Raghunath Mishra and Justice M.M Punchhi, held that the absence of arbitrary
power is the absolute aim of the principle of rule of law upon which directly
the whole constitution is dependent.
— In the case of
ADM
Jabalpur V. Shivkant Shukla , popularly
known as the habeas corpus case, is one of the most important cases of rule of
law. In this case a question arose before the court whether rule of law in
India is apart from Article 21 of the Indian constitution. Thus, the five judge
bench comprising of Justice A.N Ray, Justice Hans Raj Khanna, Justice M Hameedullah,
Justice Y.V Chandrachud and Justice P.N Bhagwati held that there is no rule
apart from Article 21 and there can never be a separate rule of law.
— The Supreme
court extended the scope of Rule of law in the case of Veena Seth vs. State of Bihar, where the
court stated that rule of law extends to the poor and the downtrodden, ignorant
and the illiterate, who constitute the majority of humanity in India. The court
ruled that the Rule of law does not exist merely for those who have the means
to fight for their rights and often do so for the perpetuation of the status
quo which protects and preserves their dominance and permits them to exploit a
large section of the community.
— In the case of
Union
of India V. Raghubir Singh,
the court held that the principle of ‘rule of law’ is a considerable degree
which governs the lives of the people and regulates the functions of the state
from the decision of the superior courts.
— In the case of
Chief settlement Punjab V. Om Prakash and Ors., the Supreme
court observed that in the present scenario, the authority of the law courts is
to test the administrative actions by the standard of legality.
— The Supreme
court in the case of S.G Jaisinghani V. Union of India,
characterized the prerequisites of rule of law in a very lucid manner. Here the
court observed that the rule of law means that decisions should be made by the
application of known principles and such decision should be predictable and the
citizen should know where he is. But if a decision is made without referring to
any principle, then it is unpredictable and such decision is the antithesis of
a decision taken in accordance with the rule of law.
— In the case Supreme
Court Advocates on Record Association V. Union of India , also known
as the “second judges’ case”, the supreme court held that the absence of
arbitrariness is one of the important concepts of rule of law.
— The constitution
bench of the court in the case of Secretary, State of Karnataka and Ors V. Umadevi
and Ors.
, stated that “Thus, it is clear that adherence to the rule adherence
to the rule of equality in public employment is a basic feature of our
constitution and since the rule of law is the core of our constitution, a court
would certainly be disables from passing an order maintaining and infringement
of article 14 in requesting the ignoring of the need to agree to the necessity
of article 14 read with article 16 of the constitution".
MODERN CONCEPT OF THE RULE OF LAW
The
modern concept of the rule of law is fairly wide. Davis gives seven
principal meaning of the term Rule of law: -
1.
Law and Order;
2.
Fixed rules;
3.
Elimination of
discretion;
4.
Due process 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; and
7.
Judicial review of
administrative action.
CONCLUSION:-
The concept of rule of law was not without flaws,
but it managed to subdue the powers of the executive branch via its actions,
and for this reason, many nations have accepted it as the guardian of their
constitutions. This technique is the most effective means to attain the highest
authority of law. The court has made deliberate attempts to establish a
connection between the concept of rule of law and human rights. Therefore, the government,
guided by the principle of rule of law, establishes regulations and
circumstances that do not infringe upon the dignity of any individual.
REFERENCES: -
BOOKS
—
A.V Dicey, introduction to the study of
the law of the constitution.
—
M.P Jain, Indian constitutional law
—
Dr. J.J.R UPADHYAYA Administrative law.
CASE LAWS
Kesavananda
Bharati v. State of Kerala (1973) 4 SCC 225.
Indira
Nehru Gandhi v. Raj Narain AIR 1975 SC 2299.
ADM
Jabalpur v. Shivkant Shukla AIR 1976 SC 1207.
Bachan
Singh v. State of Punjab AIR 1980 SC 898.
Som
Raj v. State of Haryana AIR 1990 SC 1176.
Veena
Seth v. State of Bihar AIR 1983 SC 339.
Union
of India v. Raghubir Singh AIR 1989 SC 1933.
S.G.
Jaisinghani v. Union of India AIR 1967 SC 1427.
Secretary,
State of Karnataka v. Umadevi AIR 2006 SC 1806.
Supreme
Court Advocates-on-Record Association v. Union of India AIR 1994 SC 268.
Chief
Settlement Commissioner, Punjab v. Om Prakash AIR 1969 SC 33.
State
of Bihar v. Sonawati Kumari AIR 1961 SC 221
ARTICLES
AND JOURNALS: -
— IJCRT,
Tanya Sharma, RULE OF LAW: A DETAILED ANALYSIS
— LAWOCTOPUS,
K.R Adithyaa Shankar, evolution of rule of law and action in India.
— IPLEADERS,
SHRAILEEN KAUR, Rule of law.
—
Upendra Baxi, “The rule of law in
India” sur international journal on human rights.
J.J.R.
Upadhyaya, Administrative law, 8th ed., 2018, pp.36-40
Academike,
Evolution of rule of law, September 2, 2024
M.P Jain,
Indian constitutional law ,7th ed., 2014, pp. 146-153
Dr.
J.J.R Upadhyaya, central law agency pp.36-37