Rule of law and its development

The principle of plays a significant role in any political and legal system. It emphasises on the principles of fairness, equality and non-arbitrariness. This concept of law has been routed back to ancient Greek theories of law (nomos) and is implicit in many other Greek legal ideologies. Greek legal practices advocated the concept of law, its theoretical bases were examined in the writings of Aristotle and Plato. The concept gradually developed in Rome.

The exact term ‘Rule of Law’ is obtained from the French phrase ‘La Principe de Legality’ (meaning the principle of legality) which refers to a government that is based on principles of law and not of men. In a broader sense, the Rule of Law means that Law is supreme. It is a proponent of equality. No individual is placed above the law. Every person must abide by the law of the land, despite being from diverse social and economic backgrounds. In a narrower sense, it limits its sphere to exercise of government authority in accordance with written laws and established procedure. This exhibits the protection given against plausible arbitrariness of the Government.

The concept does not draw any prominent steps as to how laws are to be made. More importantly, it provides guidelines to govern and guide the behaviour of subjects under it.

Rule of law and its development

A.V. Dicey’s Rule of Law

Albert Venn Dicey was a British Whig jurist and constitutional theorist. He is most widely known as the author of Introduction to the Study of the Law of the  (1885)[1]. His principles of Rule of Law include

  1. The : The principle is self-explanatory. No man can lawfully be punished except for a breach of law. Law is supreme and predominant as opposed to the influence of arbitrary power or discretionary power. The alleged offence is required to be proved in accordance with the procedure established.
  2. : This principle means equal subjection of all classes of people to the ordinary law of the land. This does not let Government officials escape liabilities that they incur due to breach of law.
  3. The predominance of the : This principle states that the general principles of the constitution are the result of judicial decisions that involve the rights of private individuals, rather than from being enshrined in the Constitution. The Constitution is a consequence, rather than a source of rights of the individuals. Rights would be secured more adequately if they were enforceable in courts rather than just being written in the Constitutional document.
Rule of law and its development

Rule of law in India: Analysis

India, being a common law country, has automatically derived the concept of Rule of Law, and owing to its origins to British jurisprudence. The Constitution of India was also framed accordingly. The supremacy of the Constitution is upheld and legislature and executive derive their authority from the Constitution.

Prior to independence

There was no application of this doctrine in ancient and medieval India. The King was the ultimate head of the state and is considered to be above the law. Not much importance was given to the rule of law and justice during the British period because of the focus on the expansion of trade and territory and increase in revenue. With the establishment of Mayor’s Courts under the Charter of 1726, judges started to work with judicial independence and incorporated Rule of Law.

This resulted in conflicts between the Judges and the Governors-in-Council, thus making the Judiciary subservient to the Executive by the Charter of 1753. When the Supreme Court of Calcutta was started under the Charter of 1174, CJ Impey acted as per Rule of Law. This lead to more conflicts between him and the Governor-General. He was called back to England. The Indian High Courts Act was passed in 1861 and High Courts were given broader jurisdiction. Later, Law Commissions were appointed for the purpose of law reforms and the judicial position also gradually improved.

Post-Independence

The doctrine has been clearly but briefly incorporated in the Indian Constitution. In fact, the Preamble itself contains the ideals of the Constitution (justice, liberty and equality). The supremacy of the Constitution is upheld. Other laws are made in conformity with the Constitution. This is provided under Article 13(1) of the Indian Constitution. This implies that any legal provision that is against the Constitution is declared void. The application of Rule of Law can again be felt in Part 3 of the Indian Constitution which comprises of Fundamental Rights.

The second principle of A.V. Dicey with respect to Rule of law, Equality before the law, is enforced under of the Indian Constitution.  This article ensures that all citizens are equal and that no man shall be discriminated on the basis of sex, religion, race or place of birth.

In the case of Indira Gandhi v. Raj Narayan[2], the Supreme Court held that the doctrine of Rule of Law embodied in Article 14 formed the ‘basic feature’ of the Constitution. This ensures that even an amendment of the Constitution under Article 368 cannot destroy this legal provision. The Supreme Court declared Article 329-A, that was inserted under the 39th amendment to provide immunities to the election of office if Prime Minister from judicial review, as invalid as it takes away the true sense of the of the Constitution. In the case of Menaka Gandhi v. Union of India[3], SC upheld Article 14 against the arbitrariness of the officials.

The very basic human right to life and personal liberty as enshrined under . The popular habeas corpus case of ADM Jabalpur v. Shivakant Shukla[4] is a very important case concerning the Rule of law. The question that arose before the Court was ‘whether there was any Rule of Law in India apart from Article 21’. This was when the enforcement of Articles 14, 21 and 22 was suspended during the proclamation of emergency. The majority of the bench was in favour of the suspension. However, Justice H.R. Khanna dissented from the majority opinion and observed that “Even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning…” The majority of judges could not take a firm stand and interpreted the supremacy of law to mean the supremacy of the law of the land and not the supremacy of the constitutional spirit which is the rule of law.

(1)(a) of the Indian Constitution says that all citizens have the right to freedom of speech and expression. Explaining the importance of Freedom of Speech and Expression Patanjali Shastri, CJ observed in case of Romesh Thapar v. State of Madras[5], “Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.” 

Rule of law and its development

The constitution also ensures separation of powers to prevent arbitrariness. An independent and impartial judiciary, which is a distinct institution is available to settle disputes and grievances for violation of fundamental rights by virtue of Articles 32 and 226.

In Union of India v. President[6], Madras Bar Association, the Supreme Court held that “Rule of Law has several facets, one of which is that disputes of citizens will be decided by Judges who are independent and impartial; and that disputes as to legality of acts of the Government will be decided by Judges who are independent of the Executive.” Justice R.S. Pathak of the Hon’ble Supreme Court has observed that “It must be remembered that our entire constitutional system is founded on the rule of law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason.”  

Rule of law also means governance in a framework of recognised rules and principles which restrict discretionary powers.  In Som Raj v. State of Haryana[7], the SC held that the absence of arbitrary power is the primary postulate of Rule of Law upon which the whole constitutional structure is dependant.

The third rule of law of Dicey’s principles, i.e., the predominance of legal spirit explains the independence of the judiciary and the supremacy of courts. This is reiterated in the case of Union of India v. Raghubir Singh[8], that judicial institutions govern and regulate people’s lives to a considerable degree.

The meaning and scope of the Rule of Law have expanded in India. It is now regarded as a part of the basic structure of the Constitution, thus cannot be abrogated even by Parliament. Any law that violates the law of the land makes it ultra vires. In Kesavananda Bharati v. State of Kerala[9], the SC enunciated the rule of law as one of the most basic and important aspects of the doctrine.

In the case of Bachan Singh v. State of Punjab[10], Justice Bhagwati has emphasised that rule of law excludes arbitrariness and unreasonableness. To ensure this, he had suggested the importance of a democratic legislature and that its power should not be unfettered. This is one with the help of judiciary.

In another case Yusuf khan V. Manohar Joshi[11], SC  laid down the proposition that it is the duty of the State to preserve and protect the law and the Constitution and that it cannot permit any violent act which may negate the Rule of Law.

In the case of Secretary, State of Karnataka and Others v. Uma Devi and others[12], the bench of the Court laid down “Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the Rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16.

Over the years, the Courts have used judicial activism to expand the concept of rule of law. For example, Courts are trying to establish a rule of law society in India by insisting on ‘fairness’. In Sheela Barse v. State of Maharashtra[13], the Supreme Court insisted on fairness to women in police lock-up and also drafted a code of guidelines for the protection of prisoners in police custody, especially female prisoners.

Rule of law and its development

Criticism

The antonym of Rule of Law is the Rule of Person. Rule of Law is automatically ruled by men, for the law is inert and hence open to interpretation. There is an interference of administrative authority in almost all fields of industry, trade and service sector. There is a large amount of discretion involved in the administrative work (examples: taxation, control of basic industries, etc.).

Inequality can evolve from a very simple thing such as to discriminate payment to employees, as opposed to the rule of law. The case Frank Anthony Employees’ Union v. Union of India[14] is concerned with discrimination in payment to employees. This was held to violate the person’s right to equality and unreasonable categorisation of pensioners was held to be arbitrary in the case of Nakara v. Union of India.[15]

Rule of law cannot be construed in its true sense with respect to its principle of equality. There are a number of immunities given to bureaucrats and diplomats in India. No criminal proceedings can be raised against the President, Governor of State during his/her term of office. Privileges are given to parliamentarians with respect to legal actions against them.

Criticism of A.V. Dicey’s principles of Rule of Law

E.C.S wade criticised Dicey’s principles of rule of Law as being confined to the Whig tradition because it relates to the author’s attachment towards the same. His vision of law has an inherent ambiguity owing to its liberal origins. Being a positivist by nature, he recognised the principle of parliamentary sovereignty in addition to the Rule of Law. He defined parliamentary sovereignty as parliament’s right to make or unmake law and that no one has the power to override or set aside the legislation of Parliament.  This ability of parliament to change laws as and when it pleases defeats the concept of supremacy of law and hence proving the two concepts to be incompatible and inconsistent with each other. Besides this aspect, parliamentary decisions are based on majority and hence this could be scope for the usage of arbitrary powers.

Principle of equity acts more meaningful than the principle of equality. It would be unjust if the law failed to account and consider social differences and disadvantaged sections of the society. The simple presumption that everyone must be treated equally does not work for efficient governance.

Conclusion

The analysis shows that the application of Rule of law is widely common in India, however not in its concrete sense. With every legal theory stated, criticism is common, evolution and dynamic nature being its reason. However, the very essence and significance of the doctrine of Rule of Law cannot be ignored. Although the principles face criticism, it has proven to establish a part of the basic feature of the Indian Constitution.


[1] Geoffrey de Q Walker, The Rule of Law (1988) 159
[2] 1975 SCR (3) 333
[3] 1978 SCR (2) 621
[4] 1976 SCR 172
[5] 1950 SCR 594
[6] 2010 (11) SCC 1
[7] 1990 SCR (1) 535
[8] 1989 (2) SCC 754
[9] 1973 (4) SCC 225
[10] 1980 (2) SCC 684
[11] 2000 (2) SCC 696
[12] 1979 (4) SCC 507
[13] 1983 SC 378
[14] 1979 (2) SCC 124
[15] AIR 1983 SC 130

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