November 1, 2020

Rule of Law and its Application in India

According to Oxford Advance Learner’s Dictionary: “Rule of Law” means the situation in which all the citizens as well as the state are ruled by the law.

A.V.Dicey postulated the concept of Rule of law in 1885 in the book ‘The Law and the Constitution’. Rule of law is the fundamental principle of the English Legal System.

According to Professor A.V Dicey, the rule of law consists of 3 inter-related but different rules:

·Supremacy of law,

·Equality before law and

·Predominance of Legal Spirit

1. Supremacy of Law:

Dicey believed that only law and law alone could rule a man without any place for arbitrariness. He believed that if the administrative authority is given any kind of discretionary power, it would be dangerous for the supremacy of law. The Government is subject to law and not the law to the Government.

2. Equality before Law:

According to the second principle of Dicey, equality before law and equal subjection of all classes to the ordinary law of land to be administered by the ordinary law courts. Every person regardless of his economic condition or rank is subject to be treated equally in front of the law. Whether it is a government official or an ordinary citizen, they have to be treated in the same way. No one is above law.

3. Predominance of Legal Spirit:

Dicey believed that there must be an upholding authority and that this authority could be found in the courts. The courts are the authorities of the rule of law and they should be both fair and liberated from every single outer impact. The courts should be the protectors of liberty, equality and justice of the citizens. Just mentioning these rights in any constitution would not be sufficient unless remedies would be available for the enforcement and protection of these rights.

Rule of Law Under Indian Constitution

The provisions of Rule of Law were taken both from USA and England Constitutions. The Rule of Law can be found in Part III of the Indian Constitution. If there is an infringement of such rights, one can move to the Supreme Court or High Court under Article 32 and 226 of the Indian Constitution, just like writ petitions can be filed for violation of any fundamental rights.

The Constitution is supreme and the legislative, executive and judiciary are subject to the constitution of india. Any law made has to obey the Constitution and any law failing to do so would be declared invalid.

The most famous application of Rule of Law in India was seen in the case of Kesavananda Bharati v. State of Kerala where the Supreme Court held that the Rule of Law is an essential part of the basic structure of the constitution. And it could not be amended by any power vested in the Parliament.

Application of Rule of Law as seen in India:

1. Supreme Court vs Union Of India on 6 October, 1993 (Equality before law)

In S.P. Gupta the concept of independence of the judiciary to be kept in view, while interpreting the relevant provisions of the Constitution, was summarized by Bhagwati, J. (as he then was), thus :

Judges should be stern stuff and tough fire, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says “Be you ever so high, the law is above you.” This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary that we must keep in mind while interpreting the relevant provisions of the Constitution.1

2. CSC Punjab vs. Om Prakash, AIR 1969 SC 33 (Supremacy of Law)

The American case Youngstown Sheet & Tube Co. v. Sawyer was referred which observed that: The rule of law rejects the con-ception of the Dual State (2) in which governmental action is placed in a privileged position of immunity from control by law. Such a notion is foreign to our basic constitutional concept.2

3. Hotel Dwaraka, Hyderabad vs The Union Of India And Ors. on 25 January, 1985 (Predominance of Legal Spirit)

In para 40

The bills of federalism are said to be : Weakness of the Government since no one authority can wield the same amount of power as under a unitarian Constitution is possessed by the sovereign, conservatism because of the rigidness of the Constitution which cannot be changed by ordinary process of legislation and legalism, namely, the predominance of the judiciary in the Constitution – the prevalence of a spirit of legality among the people.3

Conclusion:

It is necessary to implement rule of law for upholding the democracy of a country and to keep the administrative authorities under the law. The rule of law has been adopted in various forms by different countries. All the citizens are equal before law and the law governs their rights. The Constitution of India is powerful in the presence of a strong and independent judiciary system.

Reference:

1. https://indiankanoon.org/doc/753224/

2. https://indiankanoon.org/doc/938648/ (Para (e))

3. https://indiankanoon.org/doc/363745/

4. Administrative law by ‘H.D.Pithawalla’ Pg No. 19,21.

Author Details: Jaanvi Shah (Jitendra Chauhan College Of Law)

The views of the author are personal only. (if any)

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