Author : Sameeksha Ashok Puthran
Institution name : KES’ Shri Jayantilal H. Patel Law College
Introduction
During ancient times the most prominent form of government were the monarchs. The king had power over all legislative, administrative and judicial decisions making processes.The people were subjected to the law made by King whom they considered to chosen by God himself but in today’s scenario where majority of the governments are democratic in nature there’s a need to form a system where the rights of an individual is not exploited by whims and fancies of a powerful authority.Thus in India, the people are ruled by the law and not a person.
Meaning
The Rule of law came from the French phrase “la Principe de leg alite”, which infers the “principles of legality”, which imply to the government based on the standards of law and not of men. The concept of rule of law was not in favour of an autocratic system.
Rule of law is one of the fundamental principles that is followed in the common law in England. It is recognized in the constitutions of the U.S.A. and India.
Rule of law in India
The rule of law is the most essential prerequisite for a democratic system. The rule of law runs like a brilliant string through each provision of the Constitution and unquestionably constitutes one of its fundamental features, which requires that each organ of the state must act within the limits of power conferred upon it by the constitution and the law.
The concept of the Rule of Law is grounded in the thoughts of equity, reasonableness, and inclusiveness examined by Aristotle, in the rules of war written in the ancient Indian stories Mahabharata and Ramayana and historical records such as the Magna Carta, which incorporated the principle that government itself is bound to follow the law.
Dicey’s concept of rule of law
Dicey created this theory in his book “The Law and the Constitution”, distributed in the year 1885. It has been included in the Constitution. It is seen in Preamble as well as the Chapter-III of the Constitution that consists of Fundamental Rights and are made enforceable. No person should be denied of his life or individual freedom or property but based on the procedure set up by the law
Prof. A.V Dicey gave the following three assumptions of the rule of law in his classic book, “Law and the Constitution‟.
The three principles are:
1. Supremacy of law;
2. Equality before Law; and
3. Predominance of Legal Spirit
Supremacy of law
Concurring to the first principle, A. V Dicey states that rule of law implies there ought to be a need of discretion or wide discretionary control. In other words, each act will be controlled by law. In the opinion of Dicey, men were governed by the law and law only.
The rule of law needs both citizens and governments to be subjected and abide by the laws. Laws ought to not be made keeping in mind the needs of a specific group of people and less authority given in the hands of the rulers. They cannot make their own laws but must administer according to the established laws. Those laws should not be as easily amendable.
Stable laws are a prerequisite of the certainty and certainty which frame a basic part of personal freedom and security. Subsequently, laws should be established in moral principles, which cannot be accomplished if they are surrounded in as well detailed a manner.
Equality before law
The second element of “Rule of Law” Dicey expressed was “equality before the law and equal subjection of all groups of people to the law of the land administered by judicial precedents”. The second principle emphasizes everybody, counting the government, independent of position, should be subject to the same law and courts. This component is deciphered to be misguided and facing a bundle of criticisms.
In reality, by maintaining law and order in society, there are actually exceptions such as the Crown, police, Members of Parliament. They may exercise prerogative powers which may vanquish the rights of people. The police have powers over and over the citizens. Members of Parliament have been exempted from the law of defamation. Prof. Dicey says that law should be uniform for everyone. He scrutinized the French legal framework of Droit Administrative in which there were partitioned administrative tribunals for deciding the cases of state authorities and citizens independently.
Predominance of legal spirit
The third interpretation of the rule of law is that the general principles of the constitution are the result of judicial precedents deciding rights of private parties in specific cases brought before the Court.
Dicey states that numerous constitutions of the states (nations) ensure their citizens certain rights (crucial or human or fundamental rights) such as right to individual freedom, freedom from arrest etc. Agreeing to him that the documentary ensures such rights is not sufficient. Such rights can be made accessible to the citizens as it were when they are appropriately enforceable in the Courts of law, For example, in England there is no written constitution and such rights are the result of legal decisions. Even though that there is no written constitution, the rule of law is established through judicial precedents. In England, the Courts are the guardian of private rights.
Rule of law sets up a successful control over the official and authoritative power.It too guarantees that each man is bound by the standard laws of the land whether he be private citizens or a public officer, that private rights are defended by the standard laws of the land. Hence, the rule of law means that no one is denied of his rights and freedoms by an authoritative action that the authoritative authorities perform their capacities according to law and not arbitrarily, that the law of the land are not unconstitutional and harsh, that the supremacy of courts is maintained and judicial control of authoritative action is completely secured.
Judicial precedents and rule of law
Fundamental rights cherished in part III of the constitution is a limitation on the law-making power of the Indian Parliament. It incorporates freedom of speech, expression, association, movement, residence, property, profession and personal freedom. In its broader sense the Constitution itself endorses the essential legal framework of the nation. To ensure that the fundamental rights and freedoms of the citizens are safeguarded the principles of the democratic nation should be based on rule of law.
The most prominent habeas corpus case, ADM Jabalpur v. Shiva Kant Shukla Air (1976) SCC, is one of the most critical cases when it comes to rule of law. In this case, the question before the court of law was “whether there was not any rule of law in India aside from Article 21’’.
This happened at the time when suspension of enforcement of Articles 14, 21 and 22 was called as the announcement of an emergency was made. The opinion of the majority of the bench was in negative for the question of law. Be that as it may, Justice H.R. Khanna disagreed with the ruling of the majority. He stated that “Even in absence of Article 21 in the Constitution, the state has got no power to deprive an individual of his life and liberty without the authority given by law. Without such sanctity of life and freedom, the distinction between an uncivilized society and one represented by laws would cease to have any meaning”.
As said before Dicey’s hypothesis of rule of law has been embraced and incorporated in the Indian Constitution. The three arms judiciary, legislature and executive work in agreement with each other. The public can approach the high courts as well as the Supreme Court in case of infringement of their essential rights. If the power with the official or the council is abused in any sorts, its malafide activity can be suppressed by the ordinary courts of law. This can be said so since it gets to be an opposition to the due process of law. Rule of law too infers a certain procedure of law to be taken after. Anything done beyond that is deemed as unlawful.
Conclusion
Supremacy of law is the goal and rule of law is the best mechanism to achieve this goal. The Court is moreover making endeavors to connect Rule of Law with Human Rights of the individuals. The court is advancing a technique by which it can force the government not only to submit to law but also make conditions where individuals can create capacities to enjoy their rights in a legitimate and important way. It is the obligation of the public administration for successful execution of the Rule of Law on constitutional commands which effectuate reasonably the objective standards laid down by law. Each government servant holding public power is a trustee of the society and responsible for due impact on national goals.
Although all the merits are unharmed in the concept of the Rule of Law, the negative angle of the concept is that regard for law savages into rigidity of legalism which is damaging to the country. The Hon’ble Supreme Court in a number of cases through its decision built up Judicial Authority and created the Principle of Judicial Review which cannot be amended, abridged or removed. In the present day the discretionary powers are given to the authorities for running the society but a few times these powers are abused by the authorities which impacts and annihilates the fundamental principles of the society. If a few sensible restrictions, regulations and standards are made in exercise of such powers, these powers will effectively and viably control the society.
The Dicey’s concept of “Rule of Law” is embraced by our constitution, and this concept brought about the victory of our judicial system. In the advanced period the utilization of Discretionary power by the authorities is a need. The discretionary power is the deviation to the principle rule of law. The balance between the two is to be made and this can be done when the judiciary controls the abuse of discretionary power by the Administration. The rule of law in Indian society has not accomplished the planning results. The profoundly settled values of constitutionalism or abiding by the Constitution of India have not taken roots in the society.
About the Author
