Rule of Law

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Rule of law ensures more freedom than high-handed action by rulers. It ensures justice between man and man however humble the one and however powerful the other. A man with five dollars in the bank can call to account the corporation with five billion dollars in assets and the two will be heard as equals before the law.

Dwight D. Eisenhower

The rule of law should be respected so that the basic structure of our democracy is maintained and further strengthened.                                                                               

Lal Bahadur Shastri

 

Introduction

Rule of Law according to Dicey, is one of the basic features of the English constitutional system.[1] Rule of Law is one of the cardinal principles of constitutional law and for the growth of administrative law, it is deemed to be the foundation stone. This principle states that the law is the base of a civilized society, and every act is to be done in accordance with the law.

This rule treats law as supreme.[2]  Whether an individual or the society as a whole, everyone is questionable under the supremacy of law. Irrespective of the fact who he is or how high he is, he is under the law.[3] Sir Edward Coke, the modern-day originator of the rule of law presumed that supremacy of law should prevail over the executive. There is a Latin maxim as quod rex non debet esse sub homine, sub deo et lege” which means that the king is under no man but under God and Law.[4]

Rule of Law has been in application from time immemorial and is not a concept of recent origin. In Ancient India, the concept of Dharma was based on the thought of compliance with one’s own duties. The term Dharma has been recognized as a duty based on a law that independently refers to one’s expected responsibility towards society.

The dharma i.e., the duty of a ruler was to protect the weak and ensure serenity and prosperity in the society. Rule of Law is termed a fundamental necessity for a disciplined and organized society.[5] The fundamentals of Rule of Law can be understood in Tom Bingham’s words: “All persons and authorities within the State, whether public or private should be bound by and entitled to the benefits of laws publicly and prospectively promulgated and publicly administered”.

The concept of the Rule of Law is that the State is governed by the law and not by the ruler or nominated representatives of the people. The King is not the Law, but the Law is the King.[6] The term ‘Rule of Law’ is defined nowhere in the Constitution of India. It can be found in the judgements passed by the courts of Indian jurisdiction. The Supreme Court has declared “Rule of Law as one of the basic features of the Indian Constitution[7], so no Constitutional Amendment can take away this principle.

Concept of Rule of Law

The concept of Rule of Law is of ancient origin. It was discussed by ancient Greek philosophers such as Plato and Aristotle around 350 BC. The phrase ‘Rule of Law’ is derived from a French phrase ‘la principe de legalite’ which means the principle of legality. In India, Rule of Law can be traced from the Upanishads.

It says: “Law is the King of Kings. It is more powerful and rigid to that of the kings. Law is the highest. By its powers the weak shall prevail over the strong and justice will be achieved”.[8] The doctrine is accepted in Indian as well as US Constitution. The doctrine of Rule of Law is the entire basis of Administrative Law.[9] The concept of Rule of Law is grounded on ideas of justice, fairness and comprehensiveness discussed by Aristotle; in the rules of war discussed in Mahabharata and Ramayana, the ancient Indian epics; in the foundations of religious thoughts as in the Dharma Chakra and the Ten Commandments; and in the seminal historical documents like Magna Carta, which states the principle that government itself is bound to abide by law. Today, the founder of good governance is the Rule of Law.

The Rule of Law is comprised of a complex chain of fundamental ideas; which includes the independence of the judiciary; equal treatment before the law for the governed and the government; the concept of equity, justice, and fairness; equality before law and transparency, consistency, and accountability in the administration of law. Rule of Law has been originated in England and India derived it from England. As per Article 13 of the Constitution of India, Rule of Law means the law of land.

Sir Edward Coke, the Chief Justice in James I’s reign, was the originator of the concept of Rule of Law. In a battle against the King, he maintained successfully that the King should be under God and the Law, he established the supremacy of law against the executive. Prof. A.V. Dicey developed this principle of Coke CJ in his classic book ‘An Introduction to the Study of Law of the Constitution’ published in the year 1885.[10]

Postulates of Rule of Law

Prof. A.V. Dicey has attributed the following three principles to the Rule of Law:

  1. Absence of discretionary power in the hands of the government officials (Supremacy of Law),
  2. Equal subjection of all men to the Law of the Land (Equality Before Law),
  3. Judge-made Constitution (Predominance of Legal Spirit).

Supremacy of Law

This principle is founded on the concept of liberty and equality. It can be traced to India’s Constitutional machinery, landmark common law judgements, and in the Constitution of the United States. This can be reflected in the Indian Constitution by Article 21 which has been widely interpreted by Supreme Court in its various judgements. Article 21 reads that “no person shall be deprived of his life or personal liberty except to the procedure established by law.”[11]

A.V. Dicey states that Rule of Law means the absolute supremacy or predominance of regular law, lacking arbitrariness or wide discretionary power. He described this principle as “the central and most characteristic feature of common law.”

Wade says, “The Rule of Law requires that the government should be subject to law, rather than the law subject to the government.”[12]

Equality Before Law

Arguably it is the most important of Dicey’s principles. It is based on the well-known maxim “However high you may be, Law is above you”, and “All are equal before law”.[13] This principle emphasizes everyone, including the government irrespective of rank, shall be subject to the same laws and courts.

In explaining this principle Dicey states that there must be equal subjection to men of all classes to the ordinary law of the land. He criticized the French Legal System of droit administratif in which there were separate Administrative Tribunal for deciding cases between officials and citizens of the State separately.

Predominance Of Legal Spirit

It means that the general principles of the Constitution are the result of the decisions of the Judiciary determining the rights of individuals through the cases brought before the Court.

According to Dicey, documentary guarantee such (fundamental, basic, or human) rights is not enough, it would be effective only when they are properly enforceable in the courts of law.

For Instance: In England, there is no written Constitution, and such rights are the result of decisions of the Judiciary.

We witnessed such a situation during an emergency in 1975 and realized that the absence of a powerful and independent judiciary is meaningless irrespective of having a written constitution.[14]

This principle is described as the heart of the Judiciary and its functioning.

Rule of Law and The Indian Constitution

Rule of law has played a vital role in the development of Indian democracy. Indian Constitution has adopted some of its provisions from the USA and some from England. The framers of the Indian Constitution adopted the Rule of Law from England and incorporated related provisions in the Indian Constitution. The principles of Rule of Law i.e., equality, liberty and justice have been enshrined in the Indian Constitution.

All three organs of the government follow the Constitution and any act in violation of the constitution will be ultra vires. The preamble of the Indian Constitution also reflects the Rule of Law. Part-III and all the fundamental rights provided by the Indian Constitution are governed by the Rule of Law. If any of these rights are violated one can move to the Supreme Court and the High Court under Articles 32 & 226 of the Indian Constitution.

The term Law defined under Article 13(3)(a) of the Indian Constitution includes ordinance, order, byelaws, rule, regulation, notification, notice, custom or usage. It accepts all of these to be in accordance with the Constitution and if not, it will be declared void and unconstitutional. The Indian Constitution guarantees equality before law, as a part of Rule of Law, under Article 14.

Under Article 32, Supreme Court has the power to issue five writs i.e., Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo warranto. It also provides the Supreme Court with the power of Judicial Review to prevent ultra vires law. The Indian Constitution to preserve the Rule of Law provide Article 15, 16, 19, 20 and 21.[15]

In India, Constitution is the supreme law and even the government derives its authority from it. Thus, the Indian Constitution effectively applies the Rule of Law.

The Supreme Court in the case of Indira Nehru Gandhi v. Raj Narain, 1975 held “the rule of law embodied under Article 14 is the basic structure of the Indian Constitution and it cannot be destroyed by any Constitutional Amendment under Article 368 of the Constitution.”[16]

In Union of India v. President, Madras Bar Association[17], the Supreme Court held “the Rule of Law has many aspects, one of them is that in case of dispute between the citizens, it should be decided by a judge who is impartial and independent, similarly while deciding the legality of the actions taken by the executive, the judge should be free from any kind of influence on the part of the executive”.

In Secretary, State of Karnataka, and Ors. v. Umadevi and Ors. [18]It was held that it is clear that adherence to the rule of equality in public employment is a basic feature of the Indian Constitution and since rule of law is the core of Indian Constitution, a court would certainly be disabled for passing an order upholding the violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Indian Constitution”.

In Veena Sethi v. State of Bihar[19], the Supreme Court held “the rule of law is not only for the people who have means to fight for their rights. The Court extended the rule to the poor and expanded Locus Standi principle to help the poor”.

In Keshavananda Bharti v. State of Kerela[20], the Supreme Court by majority overruled the decision given in Golaknath’s Case and held that “the Parliament has wide powers of amending the Constitution and it extends to all the Article, but the amending power is not unlimited and does not include the power to destroy the basic framework of the Constitution. There are implied limitations on amending power under Article 368, within the limits of which the Parliament can amend every Article of the Constitution. Thus, the Rule of Law prevailed.”

In Ramana Dayaram Shetty v. International Airport Authority[21], the Supreme Court held that “the great purpose of rule of law is the protection of individual from the arbitrary exercise of power, wherever it is found”.

In re: Arundhati Roy[22], Justice Sethi observed that “for achieving the establishment of the rule of law, the Constitution has assigned the special task to the Judiciary”. The Court has utilized its power of Judicial Activism to expand the concept of Rule of Law.

In Sheela Barse v. State of Maharashtra[23], the “Supreme Court insisted on the fairness to women in police lockup and drafted a code for guidelines for the protection of prisoners in police custody, especially the female prisoners”.

Conclusion

Upon the idea of the above discussion, the aim of Supremacy of Law can be achieved by the tool named as Rule of Law. The Judiciary is also making continuous efforts to link the rule of law with the rights of the people. It is the responsibility of the public administration for effective implementation of the Rule of Law on Constitutional commands which effectuates fairly the objective standards laid down by law.[24]

In the Modern Era, discretionary power is provided to the authorities for the effective and lawful running of society but at times these powers are misused which destroys the basic principles that govern society. Discretionary Power is against the doctrine of Rule of Law.

To create a balance between the two, the Judiciary must control the misuse of discretionary power in the administration. To create a balance between “Rule of Law” and “Discretionary Power” the rule of Harmonious Construction should be applied. It can be concluded that the principles of Rule of Law have been enshrined under the Indian Constitution. Our Constitution and Judicial Precedents including the most recent ones have clearly set a path for the applicability of Rule of Law in India. Despite all hindrances, the practical application of Rule of law has made significant progress in India.

Dr. B.R. Ambedkar once said, “Law and Order are the medicines of the body of politics and when the body politic gets sick, medicine must be administered.”

The article has been contributed by Priya Raj.

End Notes

[1] Author Dr. U.P.D. Kesari, Administrative Law, 21st Ed. 2016.

[2] Author Yashomati Ghosh, Textbook on Administrative Law, 1st Ed. 2016.

[3] T.N. Godavarman Thirimulpad v. Ashok Khot (2006) 5 SCC 1.

[4] As quoted in T.N. Godavarman Thirimulpad v. Ashok Khot (2006) 5 SCC 1.

[5] Author M.P. Jain &S.N. Jain, Principles of Administrative Law, 6th Ed. Reprint 2011.

[6] “Common Sense”, Thomas Paine <https://www.gutenberg.org/files/147/147-h/147-h.htm.

[7] Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2295; SP Gupta v. Union of India, AIR 1982 SC 149.

[8] Author I.P. Massey, Administrative Law, 10th Ed. 2022.

[9] Author C.K. Takwani, Lectures on Administrative Law, 7th Ed. 2021.

[10] Author C.K. Takwani, Lectures on Administrative Law, 7th Ed. 2021.

[11] Constitution of India, 1950.

[12] Wade & Forsyth, Administrative Law (2009).

[13] Author C.K. Takwani, Lectures on Administrative Law, 7th Ed. 2021.

[14] Habeas Corpus Case (ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207).

[15] The Constitution of India, 1950.

[16] AIR 1975 SC 2295.

[17] Writ Petition no. 1072 of 2013.

[18] AIR 2006 SC 1806.

[19] AIR 1983 SC 339.

[20] AIR 1973 SC 1461.

[21] AIR 1981 SC 487.

[22] AIR 2002 SC 1375.

[23] AIR 1983 SC 378.

[24] State of Punjab v. G.S. Gill (1997) 6 SCC 129.

Bibliography

  • Lectures on Administrative Law by C.K. Takwani.
  • Administrative Law by I.P. Massey.
  • Principles of Administrative Law by M.P. Jain & S.N. Jain.
  • Textbook on Administrative Law by Yashomati Ghosh.
  • Administrative Law by Dr. U.P.D. Kesari.
  • SCC Online.
  • manupatra.com

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