Rule of Law in Republic of India

Meghali Gaur[1]

Abstract

This article throws light on the indispensable principle of Rule of Law essential to govern any political and legal system. This principle assimilates the notion that ‘nation should be governed by the law’ in contrary to the vague and arbitrary powers of government and its officials. Supremacy of Constitution in India intended this country to be governed by the rule of law. This principle can trace back its origin from the time of ancient Greece, and developed gradually in Rome. Sir Edward Coke enlightened about this concept in real sense. Later on a broader interpretation was offered by Dicey in British Constitution.

This paper initiates with the Dicey’s pillars of Rule of Law and asserts this principle as ‘common principle’. Further a clear distinction has been made between ‘Rule of Law’ and ‘Rule by Law’. Then the later section deals with the incorporation of Dicey’s Rule of Law in Indian Constitution.  Gradually the Constitution has been interpreted by the judiciary and provided with the liberal interpretation of this principle of Rule of Law.

Keywords: Arbitrary powers, Constitution, Government, Rule of Law, Supremacy.

Introduction

Looking at the history it becomes clear that man has always applied for something higher than his own creation. For Romans it was ‘jus naturale’ for Hobbes, Locke and Rousseau it was ‘social contract’ and for modern people it is ‘Rule of Law’.[2] This phrase of Rule of Law in utilized frequently whenever ‘law’ is studied and contains different meanings and upshots. Though it’s primary meaning is that everything must be done in accordance with the law. It maintains checks and balances over the arbitrary and vague powers of the government, secures the ‘liberty’ of an individual. In case of infringement of any right of the people, authorities are liable to provide with fair and reasonable justifications and they can only act within the purview of the law.[3]

The phrase ‘Rule of Law’ has been derived from a French term ‘la principe de legalite’ which means the principle of legality. It defines the government working on the basis of principles of law and not of men.[4] As per the concept of A.V Dicey, Rule of Law denotes ‘supremacy and predominance’ of ordinary and working law curbing the arbitrary functioning of the government and withers away the existence of vagueness, of prerogative and the discretionary authority of the government.[5]

Rule of law: a dynamic concept

It does admit of being readily expressed. The Rule of law is a dynamic concept hence it is difficult to pop out the exact definition. This nowhere decreases its basic value which it represents. It is referred as in contradistinction to rule of man and rule according to law. In real sense Rule Of Law indicates such laws, depending on the principles of equality, accountability, nondiscrimination, non-arbitrariness and fraternity and is regular, certain, utilizing the word law in the sense of ‘Jus’ and ‘lex’ both.[6]

Origin of rule of law

This concept is of old origin and is considered as an ancient ideal. It can be traced back to classical Greek thought, discussed by the then philosophers like Plato and Aristotle in around 350 BC.[7] Medieval theorists like Sir John Fortescue (1471), proceeded with the concept further, sought to distinguish lawful from despotic forms of kingship; it goes on through the early modern period in the work of John Locke (1689), Niccolò Machiavelli (1517); in the European Enlightenment in the writings of Montesquieu (1748) and others.[8] Indian political thinkers and philosophers like Chanakya have also championed their own concept of Rule of Law theory, by stating that king should be headed by the law.[9]

Formally, Sir Edward Coke is regarded as the originator of this concept in UK, where he propounded the Supremacy of law over executives. Later on, the firm concept of the Rule of Law theory was expounded by A. V. Dicey. His theory that “a government should be based on principles of law and not of men”, became popular worldwide. In India, this theory can be traced to Upanishad, explaining that the law is the king of kings and there is nothing superior to law. In this way, in government, the concept of law created to control the work out of self-assertive powers of the rulers who claimed divine powers to run the show.

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Rule by law and rule of law: difference[10]

‘Rule by law’ essentially implies run the show by any law which is laid down by the preeminent law making specialist of that nation. One isn’t concerned approximately what the law is or what its reason is. In most of the dictatorships and governments, there’s a set of laws through which the equity is managed. But, in such nations, rule of law does not exist.

On the other hand, ‘rule of law’ suggests run the show of law which is based on certain principles of law. What the standards of law will be could be a point of impressive wrangle about. This concept of rule of law was created by Dicey after he noticed the advancement of law in France. The fundamental concept of rule of law is to control the boundless work out of the control by the incomparable law making specialist of the nation.

 Rule of law too implies certain standards. In case in any society, the law by which the individuals are ruled is based on both the specific standards, at that point as it were one would say that that specific society could be a run the show of law society. Something else, each other society may be a ‘rule by law’ society.

Dicey’s rule of law

Dicey unfolded his thesis by peeping from a foggy England into sunny France. He remarked that in France vast discretionary powers were exercised by the government officials and in case of any dispute between the government official and an individual, the mater was not heard by the ordinary court instead it was tried in a special administrative court. The law that was applicable was put forth by the administrative court.[11] From here Dicey deduced that the system in France is in negation with the concept of Rule of Law which is a secret of individual’s liberty in England. In England there is a firm applicability of Rule of Law in concrete cases and no administrative law was in functioning.

In Wilkes v. wood[12] it was held that an action for damages for trespass was maintainable even if the action complained of was taken in pursuance of the order of the minister. In the leading case of Entick v. Carrington[13] a publisher’s house was ransacked by the king’s messengers sent by the secretary of state. In an action for trespass, 300 were awarded to the publisher as damages. In the same matter, if a man’s land is compulsorily acquired under an illegal order, he can bring an action for trespass against any person who tries to disturb his possession or attempts to execute the said order.[14]

Hence, following the approach of Montesquieu’s, in the year 1885, Dicey laid down three pillars while formulating the concept of Rule of Law, which forms the basis of constitution of UK.[15] These are:

Supremacy of Law

As per this principle of Dicey, the rule of law denotes lack of arbitrariness or wide discretionary powers. Every act should be governed and controlled by law. According to Dicey “Wherever there is discretion, there is a room for arbitrariness and that in a republic no less than under a monarchy discretionary authority on the part of Government must mean insecurity for legal freedom on the part of its subjects.” [16]

As per the opinions of Wade[17] the Rule of Law needs that the Government should be subject to law, rather than the law subject to the Government. The principle of supremacy also entails generality in the Law, which is an expansion of the principle of equality before the law providing that laws should not be made in connotation with a particular individual.                                                                                                                                                                                                                                                      

Further, stability of laws is a prerequisite of the certainty in laws which are essential for the security and freedom of an individual. Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner.[18]

Equality before the law

The attribute of ‘Rule of Law’ Dicey stated was ‘equality before the law and equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.’[19] Further it emphasizes that everyone, irrespective of position and rank, shall be subject to same principles of law. This principle of Dicey faced bundle of criticism. In fact, in order to maintain law and order in society, there is a requirement of certain exceptions such as Crown, Police, and Members of Parliament. The crown by virtue may exercise such powers which may be in contradiction with the individual’s right. The Police have powers above the citizens and Members of Parliament have certain immunities.[20]

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Prof. Dicey criticized the concept of droit administrative of French legal system, where there were separate administrative tribunals for deciding the cases of State official and the citizens.

Predominance of legal spirit

The Structure isn’t the source but the result of the rights of the people. Here, Dicey emphasized on the part of the courts. Without a specialist to secure and implement the rights conferred upon citizen, there consideration in an archive etc. is of small value.

Mere consideration isn’t authoritative and its arrangements may well be abbreviated, trampled or overlooked.[21]  The courts are the enforcers of the rule of law and they must be both impartial and free from all external influences. Thus the freedom of the judicial becomes an important pillar to the rule of law.

Rule of law in republic of India

Rule of Law has played a major role in developing Indian democracy. Indian constitution is a borrowed constitution and our founding fathers have adopted the Concept of Rule of Law along with certain other provisions from England. In India constitution is supreme and no one is above it. All the organs work in consistency with the constitution, any act in violation of the provisions of Constitution would be considered ultra vires. All the principles of Rule of Law i.e. justice, equality and liberty are enshrined in the Constitution. Indian Constitution guarantees equality before law under Article-14, as an aspect of rule of law.

In case, any executive and administrative action falls beyond the standard of legality, it can be set aside by the competent court on an action brought by the aggrieved party.[22] Thus, in India everyone is subjected to law however, President and the Governors are given exemption (under Article 361), officials are provided with certain immunities etc. But these provisions do no override the effectiveness of rule of law in India.

Rule of law in correspondence with Indian judiciary

The concept of rule of law in India is adopted from the British Judicial system. The Supreme Court and the High Courts from time and again have tried to interpret and expand the meaning of the Rule of Law in India. By expansion of the meaning, it means that there are certain fundamentals attached to the nature of Rule of Law with Indian context.

However, the judgments pronounced by the learned judges have been varying in the context, but there are few essential judgments that add to the meaning of Rule of Law like Shankari Prasad case, ADM Jabalpur case[23], Bachchan Singh case and several others discussed here under in:

The rule of law imposes reasonable restrictions on the law making power of the legislature

The debate on the Rule of Law started from the case of Shankari Prasad v. Union of India, in which, the main question which was settled included the amendment of the Part III of the Indian Constitution. This ephemeral doubt of the Indian Judiciary was put to rest with reasons in the case of Keshavnanda Bharati v. State of Kerala,[24] where in the apex court ruled that however the amending power of the legislation enshrined under Article 368 is unlimited, yet the law made by it should pass the test of being just, fair and reasonable.

 This case is fundamental to the emboldening the concept of Rule of Law in India because after this case Rule of Law came to be identified under the “basic feature” of the Indian Constitution. Hence the rule of law imposed restrictions on the law making power of the legislature.

Rule of law is embodied in the article 14 of the Indian constitution

Article 329-A was inserted in the Indian Constitution by the 39th Amendment which imposed certain limitations on the power of judiciary to intervene in the election matters of the Prime Minister. In the case of Indira Nehru Gandhi v. Raj Narain,[25] the Supreme Court held that the Rule of Law is enshrined in the Article 14 of Indian Constitution, and it is the basic feature which cannot be amended even by the act of the Parliament.

Rule of law has three basic assumptions

This was observed by the Apex Court in the case of Bachchan Singh v. State of Punjab,[26] in which case it laid down that the Rule of Law has three basic assumptions:

  1. Law making power is essentially in the hands of a democratic legislature.
  2. The law making power is not uncontrolled, but has reasonable restrictions.
  3. Separation of Power is a feature of Rule of Law and hence the Judiciary is independent of any interference with its powers.
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Similar view was observed in the case of Som Raj v. State of Haryana,[27] where the apex court ruled by interpreting the meaning of arbitrary powers and held that the absence of such a power is the central point of which the principle of Rule of Law is balanced.

Article 21 of the Indian constitution embodies within itself the concept of rule of law

This was observed by the Supreme Court in the case of Maneka Gandhi v. Union of India,[28] where in it was observed that no law can arbitrarily deprive any citizen of his right to life and personal liberty.

To deprive a person of his right to life and personal liberty, the law has to fulfill four conditions:

  1. The law must be valid.
  2. There should be a procedure.

The procedural and substantive nature of Rule of Law is an essential component of the British Judicial System.

  • The procedure must pass the test of being just, fair and reasonable.
  • The law must be according to Article 14 & 19 of Indian Constitution.

Independence of judiciary and power of judicial review is also one of the face of rule of law in India

The system of checks and balances has been described as one of the essential features of Rule of Law in British system. To implement such system of checks and balances, the Indian Judiciary has been identified over the time through judicial pronouncements as independent. This was observed in the case of Union of India v. Raghubir Singh.[29] In this case it was held that the system of checks and balances can be implemented by the power of Judicial Review of the Supreme Court.

This was also observed in the case of S. P. Sampath Kumar v. Union of India.[30]

Conclusion

The establishing fathers of India fulfilled what the rest of the world in spite of the fact that outlandish- build up a nation that would take after the letter of the law and execute the Rule of Law. Through its choices courts have strived to strengthen these instruments and guarantee smooth equity conveyance to all citizens. Issues such as outdates legislations and stuffed courts are but little preventions and bodies such as the Law Commission of India work towards pressing out these issues with the point of accomplishing a framework where there are no obstructions to the smooth operation of the Rule of Law.


[1] Student, Indore Institute Of Law.

[2] Mrinalini Singh, Growth of Administrative Law in India, MANUPATRA (June 12, 2018, 8:30 p.m.) http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=61fb07af-8c80-4868-b707-b9939e9dae87&txtsearch=Subject:%20Administrative%20Law.

[3] Dr. Beena Deewan, Rule of law a comparative study, ANMRJRAE, 3(9) Abhinav National Monthly Refered Journal of Research in Arts (2014).

[4] Mounica Kasturi, Rule of Law in India, Symbiosis Law School, Pune, (June 12, 2018, 10:17p.m.) https://www.lawctopus.com/academike/rule-of-law-in-india-2/.

[5] Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545; Air India v. Nergesh Meerza, (1981) 4 SCC 335; D.K. Basu v. State of West Bengal, (1997) 1 SCC 416; PUCL v. Union of India, (1997) 3 SCC 433.

[6] Varsha Rajora, Research Paper on Comparative Analysis of Rule of Law in UK & India, (June 13, 2018, 9:19 p.m.), http://ssrn.com/abstract=1533265.

[7] A.V Dicey, The Law of the Constitution, 198 (8th Ed.).

[8] The Rule of Law, PLATOSTANFORD, (November 28, 2019), https://plato.stanford.edu/entries/rule-of-law/.

[9] Supra Note 3.

[10] IP Massey, Administrative law, (Eastern Book Company, 2008).

[11] Ibid.

[12] Wilkes v. wood, 1763 19 St Tr 1153.

[13] Entick v. Carrington, 1765 19 St Tr 1030.

[14] Varsha Rajora, Research Paper on Comparative Analysis of Rule of Law in UK & India, (June 13, 2018, 9:19 p.m.), http://ssrn.com/abstract=1533265.

[15] Jain & Jain, PRINCIPLES OF ADMINISTRATIVE LAW, (6th Ed., 2013).

[16] The Law and the Constitution, (1915).

[17] Administrative Law 34-36, (1994).

[18] International journal of Law and Legal jurisprudence, OURCIVILISATION (June 21, 2018, 7:30p.m), http://www.ourcivilisation.com/cooray/btof/chap181.htm.

[19] The Law and the Constitution, (1915).

[20] Supra Note 19.

[21] Chhavi Agarwal, Rule of Law- A reflection upon we the people and beyond,  (June 23, 2018, 11:00 p.m.) http://www.legalserviceindia.com/article/l459-Rule-of-law.html.

[22] Chief Settlement Commissioner, Punjab v. Om Prakash, A.I.R 1969 S.C 33.

[23] ADM Jabalpur case, AIR 1976 SC 1283.

[24] KeshavnandaBharati v. State of Kerala, AIR 1973 SC 1461.

[25] Indira Nehru Gandhi v. Raj Narain, 1975 SCC (2) 159.

[26] Bachchan Singh v. State of Punjab, AIR 1980 SC 898.

[27] Som Raj v. State of Haryana, 1990 SCR (1) 535.

[28] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[29] Union of India v. Raghubir Singh, 1989 SCR (3) 316.

[30] S. P. Sampath Kumar v. Union of India,1987 SCR (3) 233.