RULE OF LAW

This article is written by Saloni of 7^thSemester BBA LL.B. of Bhagat Phool Singh Mahila Vishwavidyalaya, Department of laws Khanpur Kalan, an intern under Legal Vidhiya

ABSTRACT

The term ‘rule of law’ means the principles of legality which refers to the government based on principles of law and not of men. In the same way the concept of rule of law is opposed to arbitrary powers. It 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, King Edward coke is said to be the originator of this great principle. Further Dicey developed this doctrine of coke in his classic book-‘the law and the constitution’ which is published in the year 1885.

Keywords: rule of law under the Indian constitution, three postulates of rule of law, supremacy of law, equality before law

INTRODUCTION

‘Rule of law’ is one of the most fundamental aspects of modern legal system. It simply states that no one is above law which means it established that law is supreme and no one is above the law. “Le principe de legalite”, which refers to “the principle of legality” in French, is the root of the English phrase “Rule of Law. “The Administrative Law of England was influenced by the Rule of Law, whereas the Administrative Law of the United States was influenced by the Doctrine of Separation of Powers.

MEANING OF RULE OF LAW

The word ‘law’ has been defined in article 13(3) and ‘law in force’ defined in article 13(3)(b). The phrase ‘rule of law’ simply indicates that the law is supreme is above the law. Dicey gave emphasis to the phrase “rule of law. According to him ‘rule of law is one of the cardinal principles of the English legal system. He attributes the following three meaning to the doctrine:

1. supremacy of law
2. equality before law and
3. 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. It excludes the existence of arbitrary power or wide discretionary powers. It excludes the existence of arbitrariness or 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 the wide arbitrary or discretionary powers exercised by the person in authority.
2. Equality before law: Dicey while explaining the second postulate of the doctrine of rule of law states that there must be equality before the law means there must be equal subjection of all classes to the ordinary law of the land. in England he maintained all persons were subject to one and the same law and there were no extra ordinary tribunal or special court for officer of the government. He also criticized the French legal system of Droit administrative.
3. Predominance of legal spirit: dicey says that the general principles of the constitution are the result of judicial decision of the courts in England. Many nations have written constitutions that protect citizens’ rights. In England it is not so. Dicey deduced that if a written constitution serves as the foundation for a people’s fundamental rights, then such rights can be revoked at any time by revising the document. The rule of law is hence the foundation of judicial supremacy.

DEFINITION OF RULE OF LAW

• 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.”[1]
• According to Prof. Wade, “the rule of law requires that the government should be subject to the law, rather than the law subject to the government”.

ORIGIN OF RULE OF LAW

The Chief Justice of England during King James I’s reign, Sir Edward Coke, was the first to criticize the Divine Concept maxims and so established the Rule of Law. He was adamant that the King ought to be subject to the law. Later, in his book “Introduction to the Law of Constitution (1885),” A.V. Dicey created the concept of the Rule of Law. Dicey defines the Rule of Law as follows: no one is above the law, and no one is subject to punishment or the ability to be lawfully forced to suffer in body or property unless there has been a clear violation. Accordingly, the supremacy of law over government is referred to as the “rule of law.”[2]

CHARACTERISTICS OF RULE OF LAW[3]

• Transparency
• Accountability
• Public participation in decision making
• Fairness/justice in the application of law
• Separation of power
• Independent and impartial judiciary
• Legal certainty
• Avoidance of randomness/unpredictability
• Predictable resolution of disputes

MODERN CONCEPT OF RULE OF LAW

The modern concept of rule of law is fairly wide. Davis gives the seven principal meanings of the term rule of law:

1. Law and orders
2. Fixed rules
3. Elimination of discretion
4. Due  process  of law or fairness
5. Natural law or adhering to natural justice principles
6. Judges and regular courts of law have precedence over administrative tribunals and executive authorities
7. Judicial review of administrative action

CHALLENGES IN ENSURING RULE OF LAW[4]

• Restricted legal access, particularly for marginalized and vulnerable groups
• Complexities of artificial intelligence and cybercrime
• Obstructing law enforcement, contributing to a breakdown in the rule of law by political parties
• Ensuring decentralization of public offices and authority
• Ignorance and poverty
• Proliferation of hate speech and incitement to violence
• The environment and climate change’s effects on people’s security and means of subsistence
• Need for independence and professionalism to serve as a check on abuse and a protector of rights and constitutional norms
• Over-reliance on the law and legal processes could be prohibitively expensive.
• Overcrowding of public offices.

RULE OF LAW UNDER THE INDIAN LAW

For the democratic government rule of law is a basic requirement. The rule of law runs like a golden thread through every provision of the constitution and constitute one of its basic features, which requires that every organ of the state must act within the parameters of the authority granted to it by the legislation and the constitution. Every administrative branch is subject to legal regulations. The modern idea of the rule of law is embodied in the Indian constitution. The concept of rule of law exists in India by virtue of the following features:

1. Supremacy of the constitution: Dicey’sdoctrine of rule of law has been accepted and embodied in the constitution of India. In the preamble the words are mentioned like justice and equality. Part III enshrines these ideas as fundamental rights and makes them legally binding. The constitution is Supreme and all the three organs of the government are subordinate to and have to act according to it. The constitution has provisions pertaining to judicial review. Supreme Court under article 32 and high courts under article 226 can issue writs for the enforcement of the fundamental rights.
2. Constitutional requirement of equality: equality before law as postulate of rule of law has been accepted and adopted under article 14 of the constitution. In India, there is no meaning to the proverb “the king can do no wrong.” Courts of ordinary law have jurisdiction over the government and public authorities. They are subject to ordinary legal process. In public service, the equality doctrine is also recognized.
3. Rule of law as a legal concept: the basic concept of rule of law is not a defined legal concept. The court would not declare any positive law to be invalid on the ground that it violates the contents of rule of law. 
4. Rule of law as a feature of basic structure: in case of Keshvananda Bharti v. state of Kerala[5] judges were of the opinion that rule of law was an ‘aspect of the doctrine of the constitution, which even the plenary power of parliament cannot reach to amend.’
5. Elimination of arbitrariness and not of discretion: from the Indian conception of rule of law is eliminated arbitrariness and not discretion. In the case of Indira Nehru Gandhi v. Raj Narain[6] justice Mathew said that it is not possible that a government may be composed of law alone, but not of men and those men may not be given discretion. All the governments are composed of law and men. There might not be a single political system with the rule of law if discretion is interpreted as arbitrariness. The survival of any political system depends on discretion. It is the only meaningful factor—the misuse of judgment.
6. Fairness in action:  it was noticed that with the growth of government functions it was not possible for government by itself to undertake it regulate and control all the matters. Thus there grew commissions, boards, tribunals and bodies to deals with these and many other matters. The decisions in case of R.D. Shetty v. International airport authority and Ajay Hasia v. Khalid Mujeeb Sehravardi have laid down that not only the state government but also every instrumentality or agency of the state government is subject to the constitutional limitations imposed by the fundamental rights and of the limitation so imposed is that every action of the state or its instrumentality or agency must be fair.
7. National policy of reservation for backward classes: in the Mandal commission case, 1992 the Supreme Court has upheld the national policy of reservation in favor of socially and educationally backward classes but at the same time has also required identification and exclusion of creamy layer for extension to the reach of rule of law to the disadvantaged section of people.
8. Pervasiveness of the concept of rule of law: The Indian Constitution, which established a judicial system that must be unbiased and immune to outside influence, represents the modern idea of the rule of law. The rule of law pervades over the entire field of administration and every organ of the state is regulated by the rule of law.

EXCEPTIONS OF THE RULE OF LAW

1. Immunity

2. Delegated legislation

3. Provision of special courts/administrative tribunal

4. Emergency periods

1. Immunity: In contrast to the general public, immunity is a particular privilege granted to specific individuals holding specific authority that shields them from lawsuits and prosecution.

2. Delegated legislation: It alludes to the decrees and legislation issued by institutions other than parliaments. This goes against the idea of the rule of law.

3. Provision of special courts/administrative tribunal: For specific public authorities, there is an administrative tribunal or special court available. During legal proceedings, this rule sets officials apart from the general public.

4. Emergency period: When there is a state of emergency, certain rights of the people and citizens are restricted. Certain fundamental and human rights may also be denied to citizens.

CASE LAWS

In case of Som Raj vs. State of Haryana[7] it was held that normally, the order of appointment would be in order of merit of candidates from the select list. Even in cases when an executive authority is granted discretion, it is important to utilize this authority reasonably and without bias. The absence of arbitrary power is first postulate of the rule of law upon which our constitutional edifice is base. When discretion is used without regard to any principles or regulations, it is equivalent to the opposite of the rule of law.

In case of A.D.M. Jabalpur v. Shivakant Shukla (1967)[8] also known as ‘Habeas corpus case’ an attempt was made to challenge the detention orders during emergency on the ground that they were violative of the principles of the rule of law. The narrow issue before the Supreme Court was whether there was any ‘rule of law’ apart from article 21 of the constitution. It is respectfully submitted that majority view in the habeas corpus case is contrary to the doctrine of rule of law.

In case of Union for democratic rights v. union of India[9] a petition by a public-spirited organization on behalf of persons belonging to socially and economically weaker section employed in the construction work of various projects connected with Asian games, 1982 complaining of violation of various provisions of labour laws was held maintainable. In the opinion of the court rule of law is intended to promote and vindicated public interest which demands that violations of constitutional rights of large number of people who are poor, ignorant of socially or economically disadvantaged position should not go unnoticed and unaddressed. That would be destructive to the rule of law which forms one of the essential elements of public interest in any democratic form of government. In this way, under the concept of rule of law, the idea of justice is no more confined to rights of the individual only but extended to the socio- economic sphere as well.

The Supreme Court of India noted unequivocally in the Maneka Gandhi v. Union of India[10] case that Article 14 guarantees justice and equality of treatment and aims to prevent arbitrariness in official activities. Arbitrariness is prohibited under the rule of law, which is the fundamental component of the Indian Constitution. The Rule of Law is denied whenever there is arbitrariness. Protective discrimination as a means of guaranteeing equality among equals was incorporated into Art. 15, 16, and 23, thus strengthening the concept of equality

CONCLUSION

Therefore, it can be said that the rule of law is the cornerstone of every democratic and civilized society, and the Indian Constitution contains sufficient safeguards to ensure that the rule of law is upheld in all contexts, including the defense of individual rights, equality before the law, and limitations on arbitrary behavior. It is one of the tools utilized to uphold the courts’ supremacy and limit the administration’s unbridled power.

REFERENCES:

1. LawBhoomi. (2023). The concept of Rule of Law and its Applicability in India. LawBhoomi. https://lawbhoomi.com/rule-of-law-and-its-applicability-in-india/
2. Development of the rule of law. (n.d.). https://www.legalserviceindia.com/legal/article-85-development-of-the-rule of law.Html#:~:text=All%20persons%20are%20governed%20by,the%20maxims%20of%20Divine%20Concept
3. Shrestha, R. (2022, April 9). Rule of Law: definition, principles, characteristics, importance, advantages, challenges – Public Health notes. Public Health Notes. https://www.publichealthnotes.com/rule-of-law-definition-principles-characteristics-importance
4. Shrestha, R. (2022, April 9). Rule of Law: definition, principles, characteristics, importance, advantages, challenges – Public Health notes. Public Health Notes. https://www.publichealthnotes.com/rule-of-law-definition-principles-characteristics-importance
5. (Keshvananda bharti v. state of Kerala, 1973)https://lawplanet.in/kesavananda-bharati-vs-state-of-kerala-case-summary/
6. (Indira Gandhi vs Raj Narain, 1975)https://lawbhoomi.com/indira-gandhi-vs-raj-narain/
7. (Som Raj And Ors. Etc vs State Of Haryana , 1990)https://indiankanoon.org/doc/1454436/
8. (Additional District Magistrate, … vs S. S. Shukla Etc, 1976)https://lawbhoomi.com/case-analysis-adm-jabalpur-v-shivkant-shukla/
9. (People’s Union for Democratic Rights and Others vs.Union of India & Others, 1982)https://www.lawinsider.in/judgment/peoples-union-for-democratic-rights-vs-union-of-india
10. (Maneka Gandhi vs Union Of India, 1978)https://testbook.com/ias-preparation/maneka-gandhi-case-upsc-notes

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[1] LawBhoomi. (2023). The concept of Rule of Law and its Applicability in India. LawBhoomi. https://lawbhoomi.com/rule-of-law-and-its-applicability-in-india/

[2] Development of the rule of law. (n.d.). https://www.legalserviceindia.com/legal/article-85-development-of-the-rule of law.html#:~:text=All%20persons%20are%20governed%20by,the%20maxims%20of%20Divine%20Concept

[3] Shrestha, R. (2022, April 9). Rule of Law: definition, principles, characteristics, importance, advantages, challenges – Public Health notes. Public Health Notes. https://www.publichealthnotes.com/rule-of-law-definition-principles-characteristics-importance

[4] Shrestha, R. (2022, April 9). Rule of Law: definition, principles, characteristics, importance, advantages, challenges – Public Health notes. Public Health Notes. https://www.publichealthnotes.com/rule-of-law-definition-principles-characteristics-importance

[5] (Keshvananda bharti v. state of Kerala, 1973)https://lawplanet.in/kesavananda-bharati-vs-state-of-kerala-case-summary/

[6] (Indira Gandhi vs Raj Narain, 1975)https://lawbhoomi.com/indira-gandhi-vs-raj-narain/

[7] (Som Raj And Ors. Etc vs State Of Haryana , 1990)https://indiankanoon.org/doc/1454436/

[8] (Additional District Magistrate, … vs S. S. Shukla Etc, 1976)https://lawbhoomi.com/case-analysis-adm-jabalpur-v-shivkant-shukla/

[9] (People’s Union for Democratic Rights and Others vs.Union of India & Others, 1982)https://www.lawinsider.in/judgment/peoples-union-for-democratic-rights-vs-union-of-india

[10] (Maneka Gandhi vs Union Of India, 1978)https://testbook.com/ias-preparation/maneka-gandhi-case-upsc-notes