De Legalite

Neeraj Dubey[1] & Sudiksha Chauhan[2]

Abstract

Rule of law is a legal concept, a mental process contrasted with perception. A principle of public policy is that those who exercise a public calling shouldn’t take any unfair advantage of their position.

Rule of law is similar to American expression “due process of law” which connotes government on principles of law and not of men. Law must rule and justice should prevail. Legal proceedings should be conducted according to established principles and rules safeguarding individual and group rights.

 The importance of rule of law lies in the fact that the government itself is subject to the law of the land, it cannot disregard or reformulate the basic law to suit its own purposes. The concept and its enforcement acts as a barrier on government’s action to stop them from becoming barbaric and anarchic.

Sir Edward Coke, was the originator of this concept. In a battle against the King, he maintained successfully that the king also should be under God and the Law, he established supremacy of law against executive.

In this research we are taking into account various aspects and principles of rule of law, what rule of law meant to various legal scholars and its relevance in the present times.

Introduction

The term Rule of Law suggests that the law will have supremacy over others and no one can supersede the law which is established for the welfare of the public at large. The term Rule of Law is derived from a French phrase Le Principe De Legalite’ which means ‘Principle of Legality ‘and it refers to a Government which is based on the principles of law. In other words, it can be said that the phrase points out that the State will work according to the provisions established by the law and that it is duty bound to follow it.

The gospel truth of the Rule of Law is that the State will always be governed by the law and not by the Ruler or the nominated Head of the State. The concept of Rule of Law can only prevail in a State if the law is the grundnorm of that State and all other organs and authorities of that State derive their powers from that grundnorm. It can be said that the State will run on the provisions of the grundnorm and will always enjoy its powers through the supreme authority and i.e. the law.

The main idea behind the Rule of Law is that the public at large shall be governed by the rules which are made for their welfare and not by any other arbitrary decision of a Ruler or a Government. These rules shall not be discriminative and should equally be applied to all the people without any pressure or influence. An efficacious and efficient Government is the one which always work as per law and which protects the rights and interest of its individuals.

Origin of the rule of law

The idea of Rule of Law has a deep historical background. It can be traced from ancient Greece, to Aristotle who discussed the concept of justice and fairness. It was the Greek civilization which gave rise to the Western concept of democracy and satirically it was the undemocratic Roman Empire which gave birth to the Western tradition of a well-codified structure of law.

Thereafter the ingredients of the Rule of Law can be traced in the Magna Carta. On the 12th day of June 1215, King John gave his approval and affixed his seal to the Magna Carta and placed himself and England’s future sovereigns and magistrates within the Rule of Law but Pope Innocent III nullified it ten weeks later and England drowned into internal war.
There are two principles[3] mentioned in the Magna Carta that can be understood to this day:-

1. “No freeman shall be taken, imprisoned, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land.”

2. “To no one will we sell, to no one will We deny or delay, right or justice.”
During the 13th century, a judge named Bracton in the reign of Henry III, introduced the idea of Rule of Law. He wrote that “The king himself ought to be subject to God and the law, because law makes him king.”

One may not know that the Magna Carta also inspired the Americans during the American Revolution and later they enshrined some rights into their State laws, Constitution, etc. The Fifth Amendment to the American Constitution (“no person shall . . . be deprived of life, liberty, or property, without due process of law.”) is a direct descendent of Magna Carta’s guarantee of proceedings according to the “law of the land.”[4]

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Later, in the Nineteenth century, Prof. A.V. Dicey in his book “Introduction to the Study of the Law of the Constitution “wrote about the concept of Rule of Law. According to Professor A.V. Dicey, the concept of Rule of law has three main principles[5]:

1. Supremacy of law;                                                          

2. Equality before law;

3. Predominance of legal spirit.

Dicey’s view on the rule of law versus modern concept

Prof. A.V. Dicey in his book “Introduction to the Study of the Law of the Constitution”, published in the year 1885 derived three principles on which the idea of the Rule of Law is based and he said that “a Government shall be established on the basis of principles of law and not of men.” The principles given by Dicey are:

Supremacy of Law: It means that there will be supremacy of the law over others and no one can supersede the law, there will be a rule of law not rule by law. In other words, it can be said that the law rules upon all including the people administering the law. While exercising their powers to make or amend any law, the law makers have to mention a reasonable reason it.

For Example: Every Bill which is tabled in the Parliament of India contains a statement of objects and reasons.

This rule was also criticised on the basis that Dicey equated supremacy of rule with absence of not only arbitrary powers but also discretionary powers. As according to him “discretion opens the doors for arbitrariness”. Discretionary powers aren’t inconsistent with the rule of law and it is a proven fact that no welfare state can work effectively without exercising discretionary powers.[6]

Equality before Law: It states that the law is equal for all and no one is above the law. This principle ensures that the law must be implemented in just and reasonable manner and there shall not be any discrimination on any basis and shall have equal subjection of all citizens to the law of the land.

Dicey carried an impression that administrative courts of France, conferred on government officials some special rights, privileges as against the private citizens. But that wasn’t the case. The actions of administration were not immune from judicial scrutiny of the Conseil.[7]

Predominance of Legal Spirit: Prof. Dicey emphasized on the role of the Courts, he said that there shall be a law enforcing authority and that authority can be found in the Courts and this authority shall be free from the interference of others’ and must work in an impartial manner for the protection of the Rule of Law and promotion of justice. Here the judicial decision protecting the rights and interests of the society is the best suited example for this principle.

The modern concept of Rule of Law in itself is very broad therefore in present scenario Prof. Dicey’s idea of the Rule of Law cannot be accepted completely. The modern concept sets up an objective for any Government to achieve. In the Delhi Declaration of 1959, modern concept of the Rule of Law was formulated and developed by the International Commission of Jurists which was later confirmed at Logos in the year 1961.

As per the report of International Commission of Jurists on the Rule of Law in a Free Society, “functions of any Government in a free society are indicated by the Rule of Law and it is to be exercised in a manner in which the dignity of a person is upheld. This dignity not only requires the due recognition of certain rights but also creation certain cultural, educational, social, political and economic conditions which are somewhere essential for the development of his personality.”[8]

K.C. Davis gave the seven principles to the modern concept of law. According to Davis, the objective behind the Rule of Law is to protect individual liberty. Davis’s seven principles are as follows: –

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1. Law and Order;

2. Fixed Rules;

3. Elimination of discretionary powers;

4. Observance of the principles of natural justice;

5. Due process of law or fairness;

6. Judicial Review of administrative actions;

7. Preference for Judges and Ordinary Courts of law to executive authorities and Administrative Tribunals.

Sir Ivor Jennings in his work on the Rule of Law where he equated it with democracy and mentioned that the Rule of Law in its proper sense is a democratic system, a system in which the people are free to choose their Government and they have a right to criticize the Government as well. He added that the powers of the executive should not only be derived from the law but it should also be limited by law.[9]

Finally, it can be said that the Rule of Law in its modern sense does not mean any Government under any law however it is the Rule by a democratic law. The Rule of Law is possible only in democratic society where it put sobriety on majoritarian rule.

Constitution of India and the rule of law

The Constitution of India is supreme and is considered as the law of the land. The concept of the Rule of Law is borrowed from England. The doctrine of Rule of Law is nowhere written in the Constitution of India and is considered as one of the salient features of the Constitution and is regarded as a part of the Constitution of India. Our preamble clearly depicts the principles of the Rule of law vide concepts like Justice, Equality and Liberty. The 3 organs of the government are subordinate to and work in consonance of the Constitution.

The Fundamental Rights which are guaranteed in Part III of the Constitution of India also upheld the idea of the Rule of Law. Fundamental rights are a restriction on the law-making power of the Indian parliament. Article 13(1) of the Constitution of India states that “all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.”[10] And Article 13(2) states that “the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”[11] Thereafter Article 14 guarantees “equality before the law or the equal protection of the laws within the territory of India”[12] and provisions for the protection of life and personal liberty[13] is enshrined in Article 21 of the Constitution. In the same way Article 19 and 20 also provide certain rights to every citizen of this country. Rule of law is treated as the basic structure of the constitution.[14]

Indian judiciary and the rule of law

The Doctrine of judicial Review is being accepted by the Constitution so that mala fide and ultra vires action of the legislature and the executive can be challenged, they aren’t immune from ordinary legal process. Subjects can approach the High Courts and the Supreme Court for the enforcement of the fundamental rights guaranteed by the Constitution.

Indian Judiciary from time to time vide its judgements has demonstrated the idea of the Rule of Law.

One of the most prominent cases on the doctrine of the rule of Law is ADM Jabalpur v. ShivakantShukla[15], also known as Habeas Corpus Case. In this case, the question which was raised before the Hon’ble Supreme Court was “whether there was any rule of law in India apart from Art. 21”. This was in context of suspension of enforcement of Arts. 14, 21 and 22 during the proclamation of an emergency.  

In the year 1953, Hon’ble Supreme Court in Ram Prasad Narayan v. State of Bihar[16]held that nothing is more likely to drain the vitality from the Rule of Law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability not imposed on others.

In Chief Settlement Commr. V. Om Prakash [17] the apex court observed in our constitutional system the central and the most characteristic feature is the concept of rule of law which means the authority of the law courts to test all administrative actions by the standard of legality. The administrative action that doesn’t meet the standard will be set aside if the aggrieved person brings the appropriate action. The rule of law rejects the conception of dual state in which governmental action are placed in a privileged position of immunity from control by law

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In the case of Wazir Chand v. State of Himachal Pradesh[18], the Apex Court held that the Rule of Law meant that the State or its executive officers cannot interfere with the rights of persons unless they can show some specific Rule of Law which authorizes their acts. This is the rule that all executive powers have to have a source in statutory provisions.

The Supreme Court in the year 1961 in Bishan v. State of Punjab[19]held that Rule of Law means that the Government could not take the law into its own hands, that it cannot dispossess persons by a display of force, and that it cannot disregard the normal requirement of procedures in a society governed by a Constitution that guarantees its citizens’ protection against arbitrary invasion of their rights. By this it is clear that nobody is above the law including the State.

In Som Raj v. State of Haryana[20], the Court observed that the absence of arbitrary power is the primary postulate of the Rule of Law. When the discretion is exercised on an executive authority it must be within unambiguous defined limits.

In Keshavananda Bharati Case[21] it was held that the Rule of Law is the “basic structure” of the Constitution of India. The Hon’ble Supreme Court by majority overruled the decision given in Golak Nath’s case. In his conclusions summarizing his judgement, Justice Khanna held: –

“(vii) “The power of amendment under Article 368 does not include the power to abrogate the Constitution not does it include the power to alter the basic structure or framework of the Constitution.”

(ix) “There are no implied or inherent limitations on the power of amendment apart from those which inhere and are implicit in the word “amendment”.

Conclusion

In the modern times, the Dicey’s theory of rule of law has been identified with the concept of right of citizens. The concept is accepted in almost all countries with some variations.it is invoked in the democratic countries to keep control over the arbitrary, oppressive exercise of power by the administrative authorities. It is even accepted by the International Commission of Jurists in their “Delhi Declaration” made in the year 1959.

To protect individual liberty only rule of law isn’t sufficient. Even parliament can pass some statutes which can encroach upon the liberty and freedom of its citizens e.g. National Security Act, Preventive Detention Act.

According to Prof. Harold Laski,“Eternal vigilance is the price of liberty”, and not a particular principle of law.


[1] Student, Vivekananda Institute Of Professional Studies, Ggsip University, Delhi.

[2] Student, Vivekananda Institute Of Professional Studies, Ggsip University, Delhi.

[3] The Magna Carta, NATIONAL ARCHIVES (Jun. 25, 2018, 02:20 PM), https://www.archives.gov/exhibits/featured-documents/magna-carta.

[4] The Magna Carta, NATIONAL ARCHIVES (June 24, 2018, 02:20 PM), https://www.archives.gov/exhibits/featured-documents/magna-carta.

[5] Kudrat, Rule of Law in India, ACADEMIKE, (Jun 25, 2018, 10.47 AM), https://www.lawctopus.com/academike/rule-of-law-in-india-2/.

[6] Indira Nehru Gandhi v. Raj Narain, A.I.R 1975 SC 2299.

[7] K.C. DAVIS, Administrative Law 18-19 (1984)

[8] The Rule of Law in the Free Society, INTERNATIONAL COMMISSION OF JURISTS (June 26, 2018, 04.10 PM), https://www.icj.org/wp-content/uploads/1959/01/Rule-of-law-in-a-free-society-conference-report-1959-eng.pdf.

[9] Dr. S.B.M. Marume et al., The Concept of the Rule of Law, 21 IOSR-JHSS 82, 87 (2016).

[10] INDIAN CONST. art. 13, cl. 1.

[11] INDIAN CONST. art. 13, cl. 2.

[12] INDIAN CONST. art. 14.

[13] INDIAN CONST. art. 21.

[14] Indira Nehru Gandhi v. Raj Narain, A.I.R 1975 SC 2299.

[15] ADM Jabalpur v. ShivkantShukla, A.I.R. 1976 S.C. 1207.

[16] Ram Prasad Narayan v. State of Bihar, A.I.R. 1953 S.C. 215.

[17] Chief Settlement Commr. v. Om Prakash, A.I.R 1969 SC 33.

[18] Wazir Chand v. State of Himachal Pradesh, A.I.R. 1954 S.C. 415.

[19] Bishan v. State of Punjab, A.I.R. 1961 S.C. 1570.

[20] Som Raj v. State of Haryana, A.I.R. 1990 S.C. 1176.

[21] Kesavananda Bharati Sripadgalvaru v. State of Kerala, A.I.R. 1973 S.C. 1416.