Rule of Law is the bedrock of our democratic principles. It enshrines that all men and women must be governed by law which is just, equal and supreme. It is a basic component which developed with time and is the spirit of the article 14 which provides equality before law and equal protection of law. It is also the ancestor of every single fundamental right, government policy and directive principles as it upholds the supremacy and spirit of law. In 70 years of long history of independent India, we have witnessed various governments rise and fall and various conflicts between the executive and the judiciary. During this time there were numerous endeavors to twist, break and even wreck the idea of rule of law but is was due to the collective efforts of the judiciary which prevented this from happening. Hence this paper explores the relevance of rule of law and why it matters. It also depicts some of the changes in the concept of rule of law in contemporary world. The paper also discusses the conflict between executive’s arbitrariness and rule of law. It also covers the relationship between democracy and rule of law. It further extends the discussion to the viability of the doctrine of rule of law in 21st century and the role played by judiciary, legislature and executive in upholding the principles of rule of law.
Keywords: Democracy, Executive arbitrariness, Role of judiciary, Viability in 21st century.
From time immemorial, humankind has constantly vested the power of its organisation into some framework, ideology or individual for maintaining the order of the society. We as a society have witnessed a variety of systems starting from the “survival of the fittest” in the ancient times; rise of monarchy and despotism in the medieval times; to the ascent of ideologies of capitalism and socialism; to the birth of democracies, communists and republics in the modern times. This might make one ponder, why should our systems today outlive the ones before? What have we learned from the countless years of history which could actually have any kind of effect? How can we administer ourselves better?
The answer we came up with that mankind couldn’t be trusted to govern itself. As long as there stood a monarch or a group of people who were above everyone else, there could always be misuse of power. So now another question emerged. What could be bought about to prevent this misuse of power? What could replace the “Rule of Men” which was prevalent from thousand years? What was the ultimate remedy?
And here it was that the theory of ‘Rule of Law’ came into existence. In its simplest version, it means the supremacy of the law above all individuals, wherein every action is governed according to the law of the land treating all individuals as equal while having frameworks maintaining the spirit of this law.
The idea of rule of law is that the state is administered, not by the whims of ruler but by the laws. The monarch or the representatives of the people in government are limited by law. The King is not law but the law is the king.
21st century is experiencing a situation of balance of terror amongst the nations. Countries like North Korea and Iraq where there is rule by law instead of rule of law have made such situations. Rule of law can act like a positive measure if adopted by the countries. “Never forget that everything Hitler did in Germany was legal”-Martin Luther King Jr. There are many ways devised by scoundrels to pacify them as gentleman and rule of law is one of them.
The concept of rule of law is based on principle La Principe de Legality (the principle of legality). Sir Edward Coke is the originator of this concept said “The king must be under God and Law”. In India Upanishads lay down that “Law is the king of kings”
The viability of Dicey’s theory
A.V Dicey, in his book Introduction to the Study of the Law of the Constitution (1885) propounded the hypothesis of the the basic pillars of Rule of Law which were fundamentally made for separating England’s administration around that time from every single other republic in Europe, particularly condemning the French and Dutch administration by giving a contrast between them and the English governance. All the while Dicey legitimized England’s brilliance on three grounds, which are now considered three essential elements of rule of law:
- Supremacy of Law
- Equality before Law
- Predominance of legal spirit
In India Rule of law is supreme and constitution is the supreme law of the land and every law enacted should be in conformity to it, any violation makes the law ultra virus. In Kesavananda Bharti vs. State of Kerala – the Supreme Court enunciated the rule of law as one of the most important aspect of the basic structure of our Constitution. Laws are supreme. Justice R.S Pathak observed that “It must be remembered that our entire constitutional system is founded on the rule of law”.
The idea of Rule of Law was intertwined within the Indian constitution while it was in the process of creation. The preamble of the constitution discusses about the principles of equality, liberty, justice and fraternity to be guaranteed to all. The Constitution was made the instrumentwhich defined the law of the nation and hence different laws were required to be in consistency with it. By this procedure, the constitution became the supreme law from which all the organs of Government derived their authority and therefore it is considered the edifice of rule of law in India. Article 13 and 21 check that there can be no arbitrariness in taking decision. Decision making should be according to laws which enshrine the ideal of supremacy of laws which is the first pillar of Dicey’s Rule of law.
The concept of equality before law and equal protection of law is enshrined within Article 14 of the constitution, while the right to personal life and liberty within Article 21 of the constitution. These rights are those basic rights which A.V. Dicey promulgated. Since the idea of rule of law was the premise on which the constitution was made, the effect of its philosophy could be seen inexplicably from Article 12 to Article 35 (PART 3) which ensured fundamental rights to the citizens of the country. The second pillar of Dicey can be seen in this part.
Dicey states that many constitutions of the states (countries) guarantee their citizens certain rights (fundamental or human or basic rights) such as right to personal liberty, freedom from arrest etc. Article 21 which gives protection against self-incrimination, double- jeopardy and rights on detention; article 32 and 226, which provides remedies through writs to the aggrieved and Article 19 which provides several important rights like freedom of speech and expression, freedom of movement etc. Hence the basic structure of the constitution itself upholds the rule of law. These are enshrined in the constitution of India in form of fundamental duties and directive principles. This is depicting the third pillar of Dicey’s Rule of law.
For the better governance Dicey’s Rule of Law is applied in 21st Century with certain modifications and additions like separation of power, open government, Fundamental rights, absence of corruption etc. Globally, there is a WJP Rule of Law index 2017-2018 in which India ranked 62 among 113 countries with Switzerland ranked 1. Hence we infer that the Dicey’s doctrine continues to be of immense importance and relevance even in the 21st century. All the three pillars of rule of law can be found in most of the countries around the world including India.
Role of judiciary in maintaining rule of law
Despite the fact that the original provisions for rule of law was laid down in the constitution itself, their legitimacy and perpetuity was evolved through several landmark cases which decided the separation of power between the three pillars of democracy and laid the bedrock for consistent improvement and advancement of the principles of rule of law. Judiciary act like a guardian of the constitution which protect it from any abuse.
The controversy over the superiority is always there between judiciary and parliament.
This started from the Shankari Prasad v Union of India where Parliament was given unlimited power to amend any part of the constitution including the fundamental rights. It was said that the term law in article 13 does not include constitutional amendment. Therefore, a constitutional amendment would have been valid even if it abridged any of the fundamental rights.
This was further upheld in Sajjan Singh v Union of Indiaby the Supreme Court and now gave absolute power to the parliament to take away the basic liberties guaranteed by the makers of the constitution.
As the saying goes, ‘power corrupts, and absolute power corrupts absolutely.’ it was not long before court doors were knocked once again for the sake of justice. This lead to the historic case of IC Golak Nath v State of Punjab, wherein the Supreme Court took away the absolute power of the parliament to amend the fundamental rights and again restored equilibrium to the separation of powers in particular and the rule of law in general.
But yet again, the Rule of law was struck another blow with the 24th Amendment by the Parliament which restored the amending power of the Parliament and also increased the scope of its own powers. This was challenged in Keshavananda Bharti v. State of Kerala, wherein the basic structure doctrine was laid by the Supreme Court. The courts held that the Parliament had wide powers in regard to amending the Constitution but this power was limited and could have not included the power to abrogate the basic feature of the Constitution. There were implied limitations which were put within which the parliament could amend the Constitution.
Judiciary is an independent wing which acts as a protector of the basic structure of the constitution. Though this concept given by judiciary of basic structure is ambiguous; it is in contrary to rule of law. Judiciary from time to time has taken decisions which are appropriate according to the situation and tends to maintain Rule of Law.
Executive arbitrariness against rule of law
Rule of Law is frequently identified with decision-making as it protects against arbitrary decision making which is in opposition to law. It brings confidence in people as they know the legal consequences of their actions. Also law provides a mechanism for resolving disputes by a fair procedure. Arbitrariness is the negation of Rule of Law. Absence of arbitrary powers is one of the essentials of Rule of Law.
Executives are authorized with some arbitrary power. The rule of law principle is that government may act and may constrict an individual’s liberty only when authorized to do so. That is government’s action must be authorized by some valid source. Any act which is arbitrary must necessarily involve negation of equality. The executive action must not be arbitrary. It must be based on some rational and relevant principle which is non-discriminatory.
Article 21 is the rule of law regarding life and liberty. It protects individual rights from any arbitrariness of the government.
The judiciary’s tussle with the executive has been long and protracted. First amendment made by Nehru government on 10 may 1951 introduced a magic box for the executive’s arbitrary actions which is popularly known as the Ninth schedule. It added Article 31B which said that laws under the ninth schedule cannot be struck down by a court on grounds of violation of fundamental rights. This power given to the executive was very well utilized by Indira Gandhi government during emergency period. As many as 47 laws were sent to the Ninth Schedule in 1975.
In much famous case ADM Jabalpur vs Shivkant Shukla the four judges gave the judgment that no person has any locus to move any writ petition under 226 before high court against presidential order till the time proclamation of emergency is in force.
In R. D. Shetty v International Airport Authority of India, the Supreme Court held that the purpose of rule of law is the protection of individual against arbitrary exercise of power.
However, in a landmark judgement on 11th January 2007, the Supreme Court laid down that the laws placed under Ninth Schedule after April 24, 1973 shall be open to challenge in court if they violated fundamental rights guaranteed under constitution of India. So now the laws made by passes by the Parliament can be judicially reviewed. Now the condition is that the Rule of law again prevailed against the arbitrary actions of the executive.
Arbitrary actions of the state are in conflict with Article 14 of the Indian constitution. An act without reason is considered an arbitrary action. In E.P. Royappa vs state of Tamil Nadu others, Justice Bhagwati stated that Equality and arbitrariness are sworn enemies ; one belongs to rule of law in a republic while the other to the whim and caprice of an absolute monarch.
In Maneka Gandhi Case reaffirmed the fact that article 14 strikes at arbitrariness in a state action and ensures fairness and equality of treatment.
Our system of government follows the principle of non-arbitrariness. Executive passes the law in Parliament but if it seems arbitrary to the judiciary it struck it down. So here in our country rule of law prevails against arbitrary executive actions.
Democracy and rule of law
“Democracy and Rule of Law are inextricably connected with each other. Urgent steps are needed to establish a rule of law society in India, without which are fundamental credentials as a democracy will be seriously undermined” -C. Rajkumar
Democracy is for the people, by the people, and of the people. Constitution of India is supreme and this feature depicts the presence of the principle of Rule of Law and the Constitution derives its power and authority from the citizens of the country. The above interlink connection between rule of law and democracy gives a clear idea that they both are coherent.
Rule of law is a political arrangement by which the society chooses to be governed by the set of pre-determined prescriptions made by some constitutionally chosen body following some set procedure. Such prescriptions made by law making body are published and law is enforced by a legally sanctioned and authorized body and the enforcement is even handed i.e. it is not for selective people it is for everyone. The above definition depicts the close relation between democracy and Rule of Law. It is giving us an idea that laws directly or indirectly, are made by the people and they are for the people only, for their betterment.
In some countries referendums or plebiscites are held it is the finest example of coherency of democracy and rule of law. People directly participate in law making. Some have a point of view that in a democratic arrangement voice of people should prevail or rule of law. But it should be taken into consideration that generally rule of law are voices of the majority of that state. They agree with those laws and we call it a democratic way of taking opinion or else if the laws are against the majority then what kind of democratic measure it would be; it would more or less become an authoritarian state.
In India though referendums are not held but the laws which are made by the government are made by the representatives of the citizens whom they have elected. Government makes laws and policies for the people.
In a democracy people elect the representative and the representative makes the law. That simply means democracy elects power holder and rule of law is concerned with how that political power is exercised. Democracy put some fear in the power holder that if the will of the people is not followed and acts are arbitrarily or against spirit of law they would be thrown out of power. In a democratic country; rule of law prevails.
In 71 years of independence, Rule of Law of comprehended and interpreted in various manners and it has been adopted in varying degrees. There may have been some mistakes down the road, but they were corrected with time. What the rule of law envisaged were the basic liberties of its citizens, which have been upheld by our Constitution. Rule of law has become the foundation of our democracy and only its survival guarantees the balance of powers. It is like the Himalayas which protect us from the cold winds of Siberia, while at the same time ensuring that the monsoon winds do not fly away. Through the provision laid down & the precedents evolved, we have achieved our solemn aim of keeping law supreme and stopping dictatorial & authoritarian regimes of the rule of man from arising back into our country.
 Student, Ba. Llb. (Hons.) 2nd Year, Bhu.
 Student, Ba. Llb. (Hons.) 1st Year, Bhu.
 Alistair Price, Why the Rule of Law Matters, WORLD JUSTICE PROJECT, (May 13, 2018, 11:19 PM), https://worldjusticeproject.org/news/why-rule-law-matters
 Ivan Sage, Democracy, Constitutionalism & Rule of Law, Victoria University Of Wellington Journal 25.
 Mridushi Swaroop, Kelsens Theory of Grundnorm(January 20, 2018; 4:45pm) http://manupatra.com/roundup/330/Articles/Article%201.pdf
 World justice Project Index 2017-2018 ( May 22, 2018; 11:00pm), https://worldjusticeproject.org/our-work/wjp-rule-law-index/wjp-rule-law-index-2017%E2%80%932018
 IC Golak Nath v State of Punjab, AIR 1967 SC 1643.
 Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
 ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.
 Raman Dayaram Shetty v. International Airport Authority of India, 1979 AIR 1628.
 E.P. Royappa v. State of Tamil Nadu, 1974 AIR 555.
 Maneka Gandhi v. Union of India, 1978 AIR 597.