What Is Rule of Law?
The term “Rule of Law” is derived from the French expression ‘La Principe de Legalite’ (the principle of legitimacy) referring to a government based on the rule of law and justice in contrast to the dictatorship.
- Rule of law is one of the basic principles of the English Constitution and the doctrine is accepted in the Constitution of U.S.A and India as well.
- The entire basis of Administrative Law is the doctrine of the rule of law.
- Sir Edward Coke, the Chief Justice of King James I’s reign was the originator of this concept. He maintained that the King should be subject to God and the Law and established the supremacy of the law against the Supreme Court and that nothing could be against the law.
The concept of Rule of law is old-fashioned and ancient. Ancient Greek philosophers, such as Plato and Aristotle, lived about 350 BC.
Plato wrote: “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.
Similarly, Aristotle further underwrites the concept of the Rule of Law that “law should govern and that in power should be servants of the laws.”
As per Prof. A.V.Dicey, “the rule of law means the absolute supremacy or predominance of the regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness or even of wide discretionary authority on the part of the government.”
Edward Coke is the originator of concept of Rule of Law. But the credit of developing the concept of rule of Law goes to Professor A.V. Dicey who in his old book “Introduction to the Study of the Law of the Constitution” published in 1885 tried to develop the concept of Rule of Law.
- According to Dicey no person shall be liable on conviction or to be liable to physical or material suffering for any reason other than a breach of law established in the ordinary course of legal proceedings before the Supreme Court of the country.
- This proves the fact that the law is absolutely supreme and does not include the existence of oppression in any way.
- Dicey therefore held that everyone, regardless of his or her position or status, was subject to the general law of the state and could not be governed by ordinary courts.
According to theory of DICEY, rule of law contains three (3) main principles.
- Supremacy of law
- Equality before law
- Predominance of legal spirit
Supremacy of law
The First meaning of the Rule of Law is that ‘no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land’.
This has always been a basic understanding of the law that goes hand in hand with the fact that the law rules over all people including the people in charge of the law. Lawmakers need to give reasons that are not allowed under the law while exercising their power to make and administer the law.
Equality before law
As the words suggest, no one is above law. All are equal in the eyes of law. It means there should be no distinction between rich and poor, official and non- official, majority and minority. Everyone should be treated equally. No one can be degraded no one can be upgraded.
Predominance of legal spirit
There should be an enforcement authority and Dicey believed this authority could be obtained in the courts. The courts are the enforcers of the rule of law and must be impartial and free from all external influences. Freedom of the judiciary therefore becomes an important pillar of the rule of law.
It is generally thought that a written constitution is the source of civil liberties. However, this is not true as Britain has an unwritten Constitution. The spirit of law is the real source of law in England. The spirit of the law is reflected in its customs, meetings, and judicial decisions. Dicey argues that the rights and freedoms of individuals are safer in Britain than in France.
Basic aspects of the Rule of Law according to A.V. Dicey
- The law does not respect the special rights of any person or group of people.
- The law does not accept differences between individuals on the basis of religion, race, gender, etc.
- No one is punished without a fair trial.
- All will be heard by the same court under the same law.
- The rule of law does not give absolute and contradictory powers to management.
Merits and demerits of concept of Dicey
- Assist in limiting the powers that be administered.
- A major role in the development and realization of administrative law.
- Act as a testing of administrative action.
- His view was not fully accepted at that time either.
- Failed to distinguish between free will and uncontrolled power.
- He does not fully understand the concept of successful Droit administration in France.
Modern concept of rule of law
The rule of law is a powerful concept. It cannot be taken to mean that it is a fixed legal system from which it does not move. The concept of Legal Law discussed by the International Commission of Jurists met in 1959 in New Delhi. The main results are:
- The law is “to protect and promote the political and social rights of the individual in a free society”.
- Establishing social, economic, educational and cultural conditions in which a person can achieve his or her rightful aspirations and dignity.
- It should not interfere with religious belief and should not interfere with freedom of speech or personal freedom.
- There is no discrimination against minority groups.
- The security guards are not enough to abuse the power by the authorities.
- There should be independent courts with safe operation without interference from the law and management.
- The rule of law requires an independent legal profession.
Applicability of Rule of law in India
The doctrine of the rule of law was unknown in ancient and medieval India. The king was the source of the justice and the protector of all laws. He was considered lawless.
During the British rule, the principle of the Rule of Law was ignored even though this law was followed in Britain. The East India Company has been interested in expanding its trade, revenue and expansion of its territory. It gave little importance to law enforcement and fair justice.
- The Constitution of India intended for India to be a law-abiding country. It provides that the constitution will have the highest power in the world and that law makers and administrators derive their constitutional authority.
- Any law enacted by the legislature must comply with the Constitution if it fails and it will be deemed to be invalid, provided for under Article 13 (1).
- Article 21 provides for another check regarding the actions of management inadvertently stating that no person shall be deprived of his life or liberty except in accordance with the law.
- Article 14 guarantees that all citizens are equal and that no one is discriminated against on the basis of religion, race or place of origin, which, ultimately, guarantees a separation of powers between the three spheres of government and the executive and the legislature has no effect on the courts. In these ways, the constitution fulfills all the requirements of Dicey’s concept in order to be known as a country that follows the rule of law.
- The critiques have always maintained that the Rule of Law in India is simply a myth that cannot be applied in reality.
- While there is no denying that the country is in the grip of corruption and according to the details of the 2012 World Justice Project, India is well on its way to opening up to government and democracy, in terms of limited government power, testing government tests, India ranks 37 97 have been tested worldwide, ranked first among five countries in their region and ranked second in 23 low-income countries. However the rule of law in the paper does not always apply. When it comes to process efficiency, India does not charge well. In the areas of non-corruption and order and security, India ranks 83rd and 96th in the world.
- In addition to the problem facing India due to corruption in lawmaking and justice delivery systems, there is the problem of old laws that still exist. India no longer accepts the ‘sunset’ clause in its laws and after independence the Indian Independence Act provided that all existing laws under colonial rule would continue to exist under the new system unless directed to revoke by parliament.
- Although this provided the nation with a solid foundation of laws, thus preventing post-independence tensions, some of these laws were drafted to fit the current environment and make it difficult to interpret in the present. This leads to misunderstandings and endless arguments in an attempt to interpret the provisions.
Role of Judiciary in Rule of Law
There are a number of cases where the concept of the rule of law was discussed. Some of many cases are as follows:
Adm Jabalpur v. shivkant shukla
The case is also known as Habeas Corpus. It is one of the most important case when it comes to the rule of law. The question raised before the considered court is whether there is any legal law in India other than Article 21 of the Constitution of India. It was in the context of the declaration of emergency that the enforcement of articles 14, 21 and 22 was suspended.
Keshavnanda bharti v. state of Kerala
In this regard, the Supreme Court has ruled that the rule of law is one of the most important aspects of the doctrine of the constitution.
Chief settlement commissioner, Punjab v. Om Prakash.
In this regard, the Supreme Court considered our Constitutional system, the most important and most notable is the concept of the rule of law which means, in the current context, the authority of the courts of law to examine all administrative actions at a legal level. An administrative or administrative action that does not meet the standard will be set aside if the victim brings the matter to the notice.
Secretary, State of Karnataka and Ors. v. Umadevi
The Constitutional Bench of the Court set out the law as follows: “It is clear, therefore, that compliance with the principle of equality in public service is a fundamental element of our Constitution and that the rule of law is the basis of our Constitutional law. Disregarding the need to comply with the requirements of Article 14 read by Article 16 of the Constitution. ”
Therefore, the Rule of Law states that decisions must be made using known principles and laws, such decisions must be predicted and citizens must know where they are. It does not include violence.
In the above discussion, it can be concluded that the essence of the law is the goal; the rule of law is the best tool to achieve goals. Some of the efforts are also taken up by the court where the Rule of Law is linked to Human Rights. The strategy was developed by a court in which the government could be forced not only to legislate but also to create conditions in which the power could be developed by the people to enjoy their rights in a fair and understandable way. In Indian society, the law did not achieve the intended results. A few examples where the law was upheld by our court and ensured that justice could be clearly seen in creating new mechanisms that seek solutions to human rights violations by applying for PIL.
Author: Srishti Saini (Fairfield Institute of Management & Technology)