Rule of Law in Republic of India

Aditi Sharma[1] & Rupesh Jain[2]

Abstract

Legal system is one of the essential factors of any nation for the purpose of its governance without any dispute. For the proper legal system, the very basic or elementary requirement is to have connection of it with the Rule of Law. Rule of Law is nothing per se but the founding principles of Law which need to be satisfy by every legal system for the purpose of proper functioning and smooth programming state. Term Rule of Law may be describing in the different way by different authors but the intention or true genesis remains the same; which is Law is supreme. Any state or government for the matter is not govern by the rulers but it governs by the Law. The ruler may be the one which facilitates the governance process but even he is not above the law and he has to abide by the law. Apart from this, another principle which is attached to it is concept of Equality. Thus, this is the basic pillar of the legal system which needs to be followed by every nation in every situation. In the present paper author will discuss the rule of law in detail, and will analyze the practical and theoretical aspect of rule of law, and also tries to make comparative analysis of the rule of law how far it has been followed in India, and other nations.

Key Words: Rule of Law, Supremacy of Law, Legal System.

Introduction

The term Rule of Law originated from the French term ‘La Principe de Legality’ which means governance through different principles of law. In the literal sense this rule is nothing but provides that, every individual comes under the preview of law, which means ‘Law’ is supreme. Irrespective of the financial, political or regional status of an individual, may he be rule maker or the one who is being ruled; person has to follow the law and the law is something which is supreme over there and not an individual.[3]Whereas in other words it can be said that the governmental authority can only act according to written law which has been adopted or established by following the proper procedure with regard to the same. The purpose of this principle is to protect an individual from the arbitrary action taken by the governmental authority. This signifies that the Law whether natural or divine or positive in nature it is supreme in the country and not the ruler is supreme.[4] Every person of the nation is bound by the law so enacted by the parliament as well as natural law.  The rule of law talks about two basic things; firstly, law must be obeyed by people of nation and secondly, it has to be of such nature that it is able to guide its subject. 

When the different theorists believed that rule of law has these two facets, Dicey has come up with the three major principles which are considered as governing factor for rule of law are a) Absence of arbitrary power or supremacy of law b) Equality before law and c) Constitution is the result of the ordinary rule of land.

Thus, for any legal system it is required to follow the rule of law as proposed by Dicey so as to have just, fair and reasonable legal system of governance.

Meaning and origin of rule of law

The notion of Rule of Law is the grundnorm[5] on which the contemporary independent society is founded. It is for the smooth working of any nation that regulations are to be made and enforced and the same are made for the wellbeing of the people of that state to maintain peace and harmony amongst themselves as well as the contradictory power in the civilization. One of the key reasons for creation of laws is to lessen friction in order to generate a serene situation for the growth of the citizens. The concept of Rule of Law plays an important part in this process.

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The derivation of the concept of Rule of Law isn’t a one-day process but the same can be drawn back to the Indian Dhamashastra to the Manusmriti to the Kautilya’sArthashastra in numerous forms and by different names but the notion remained identical and over a period of time came to be known as the Rule of Law or the Rule of Justice. Rule of Law although has not been exactly enshrined under any constitution or any statute but the replication of the same can be seen in the legislative work.

Rule of law: Colonial encounter

The advent of British brought about a new dimension to the Rule of Law in Indian history, as in the later of the eighteenth century, the British East India had to create states and provinces for proper administration of rapidly acquired Indian territories, thus creating a separate juridical and political administration.[6] This brought about a conflict between the ancient Hindu law and the modern English laws which later on towards the end of nineteenth century was reflected in various judgements of Hindu Law citing judgments of the Anglo-Indian situations which was directly in conflict with the basic ancient Hindu ideology of dharma;15 for instance, earlier the Hindu temples were governed as per the Dharmashastra and after the colonial encounter to the Indian arena the same were governed by the Rule of Property enshrined under the modern English laws, as a trustee and beneficiary relationship.

Dicey’s rule of law: Analysis

 Rule of Law of the Rule of Justice as per Dicey is an important key principle of English Legal System. Dicey has ascribed three meaning to this principle namely; supremacy of law, equality before law and the judge-made constitution.

Supremacy of law

According to Dicey, Rule of Law means complete supremacy or the prevalence of law as contrasting to influence of any arbitrary or extensive discretionary power of ay authority; i.e. without existence of arbitrariness or prerogative or any wide discretionary power of the government. As opined by Wade, the rule of law needs administration to be subjected to the law and not vise-e-versa. [7] This is the elementary reason why Dicey has chosen the same as the dominant and most distinguishing feature of common law.

Equality before law

Coming to the another principle of Dicey’s Rule of Law, he states that there must be equality before law or the equal subjection of all classes to the ordinary law of the land directed by the ordinary law courts.[8] Thus, disapproving the formation of French Legal System of droit administratif, where there were separate administrative tribunals for deciding cases between the state servants and the citizens, according to him mere establishment of such tribunal negated the concept of equality before law.

Judge-made constitution

Elucidating the third principle of Dicey’s Rule of Law, he states that there are many states that have certain rights protected under their constitution and then there are certain states like England which do not have these rights preserved under their constitution but have been recognized by virtue of judgements of numerous cases accrued, thus, Dicey emphases on the standing of courts and that these rights shall be better secured if were enforceable under the court of law rather than merely stating on the documents.[9]

Dicey’s Rule of Law has proved the hypothesis by virtue of its principles of Rule of Law i.e. supremacy of law, equality before law and the judge made constitution; as has been explained in this chapter. 

Theoretical and practical aspects of rule of law in India

Rule of law or Rule of Justice, a legal principle that laws shall be the governing factor to any nation and not the individuals. Rule of law is a very wide and complex concept and is called upon in varying contexts and conditions. The rule of law is prayed internationally as a foundation for calling attention to the defects in a legal system.[10]

Application of Rule of Law or Rule of Justice in Indian context is relatively stimulating arena by the virtue of; firstly, the history of the state and the way in which the ethos and context has advanced its modern legal system; secondly, the people of the nation and the demands the legal system serves to the world’s second largest population.

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Lately the opinion newspapers in India have been targeting the concept of Rule of law, raising the question whether India is the country where Rule of law can be expected to prevail.25 Not only the newspapers and the foreign agencies have drawn their attention towards this question but Supreme Court and High Court Judges in India have time and again have referred to the concept of ruling as well. Getting insight of how the Rule of Law and various aspects of the same have been understood and interpreted by the actors of Indian Legal System through various cases.

In the case of Bimani Zinc Ltd. V. KSEB,26 the Hon’ble Supreme Court considered a case where due to a series of changes made to the law made it uncertain if the Kerala State Electricity Board has authority to raise any local tariff over Energy. In the Judgement of the case at hand S.B. Sinha, J. affirmed to the ability of Electricity Board to raise local tariffs on Energy taking ground of the uncontroversial nature of the aspects of Rule of Law. Sinha has further stated that the constant changes in law violate the basic requirement of form under Rule of Law. He further states in the judgement that it is a well settled and widely accepted principle that Rule of Law postulated that all laws would be prospective subject of course to enactment and express provision or intendment to the contrary,[11] i.e. indicating one of Fuller’s formal characteristics, well-settled and uncontroversial in India and worldwide.

Secondly, in Gadakh Yashwantrao Kankarrao v. BalasahebVikhePatil,[12]Hon’ble Court had discoursed that in the case where the results of election for LokSabha, the lower house of the Indian parliament were in issue, to be precise the election of Gadakh was questioned on the grounds that he and his supporters had violated fair election practice requirements in order to win the elections. In the judgement of the case at hand J.S. Vera, J. had presented his views on the interjection of the courts and the substances of Rule of Law. With reference to the same Vera stated in the judgement that in order to preserve this Rule of Justice as basic structure to the democracy of which the purity of elections is a part the courts may be duty bound in appreciating the evidences and construing the laws in a manner that would sub serve this higher purpose and show affirmation to the failing standards of the electoral procedure i.e. for the survival of democracy in India, the rule of law must be the prevailing factor. Vera further places his reliance over the Rule of Law in his decision making and points out that he like other thick substantiate believe that there is a nexus in law and substance which shall be preserved by the legal system in order for democracy of a nation to survive.

Further in the case of Satvir Singh v. UOI and others,[13] High Court of Delhi adjudicated upon a case that tested appointment practices for a government posts. Mool Chand Garg, J. iterates Dicey’s rule against arbitrariness stating that whatsoever is the object of the Rule of Law is the material lies in the juristic application of the same and the legislative intent behind the same is the protection of individuals against any arbitrary exercise of power of any authority against any individual.

The way in which the Rule of Law is applied and interpreted as per the situation by the judges in these cases help us give some insight to the way the Indian Judges have resonated the Rule of Law in Indian context. Thus the idea of Rule of Law is applicable to the Indian arena in the similar manner as is applicable to any other nation.

However, as has been mentioned previously, applicability of Rule of Law is interesting in Indian context due to varied cultural dimensions thus, true to the nature as it is primary to make a proper analysis of culture and the Rule of Law formal aspects by the judicial minds.

Measuring rule of law

After receiving an understanding to the concept of Rule of Law or the Rule of Justice in Indian context and other states through the glass door of various jurists and various judgements national and international we come to another question that is “Whether the Rule of Law can be put through scales and be measured?”

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 As per the Rule of Law Index, an annual report published by the World Justice Project (WJP) India, has been ranked 66th inter alia 112 countries in to with a score of 0.51 out of 1.00.[14]

WJP has used certain procedure in order to put the degree to which numerous legal systems obey to the concept of Rule of Law. The WJP Rule of Law Index tests the same on 9 varies aspects namely, limited government powers; absence of corruption; order and security; regulatory enforcement; access to civil justice; effective criminal justice and the informal justice.[15]

Now that we have already gotten an insight to the concept of Rule of law or the rule of justice we shall understand the parameters on which the extent of Rule of Justice Index is mapped by WJP.

  1. Limited Government Power
  2. Absence of Corruption
  3. Order and Security
  4. Fundamental Rights
  5. Open Government
  6. Effective Regulatory Management
  7. Access to Civil Justice
  8. Effective Criminal Justice System
  9. Informal Justice

Conclusion

Rule of law is the premise to proper governance to any nation and the same shall be followed in the manner as it is however can be interpreted in the way required based on the facts and circumstances of each case. The principles proposed by dicey establish the law is supreme and that both the ruler and the ones being rules shall comply with the laws and not vis-e-versa. Further, it can be seen that nation like UK has effectively enshrined the principles of Rule of law under their constitutions and has relied on the same while delivering justice in public domain. The same is true under Indian context which bring us to the next chapter i.e. Theoretical and Practical aspects of Rule of Law in India. The researcher would like to say that by virtue of fundamental rights and various other articles of the Indian Constitution, the governing bodies have given Rule of Law a prime position in the effective governance and the same has been recognized by judiciary in various cases time and again. With this we come to the chapter Measuring Rule of law, Certain parameters under this chapter have been discusses used in order to measure the Rule of Law index by WJP and the same are relying on the underlying principle of Dicey’s Rule of Law i.e. for an effective governance the parameters that have been takes are basic premise of Rule of Law itself. It can be said that Rule of Law is the basis to the basic structure of good governance for any nation and the same shall be complied with.


[1] Student, Institute Of Law, Nirma University.

[2] Student, New Law College, Bharati Vidyapeeth University (Bvp).

[3] Brain Z Tamanah, History of Rule of Law, Singapore J. Legal Studies (November 27, 2019),

https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=19&cad=rja&uact=8&ved=0ahUKEwjIiIjmfXWAhXELo8KHQX7DWgQFgiJATAS&url=http%3A%2F%2Fwww.paclii.org%2Flaw-andculture%2FMaori%2520Legal%2520Identity%2520and%2520the%2520Rule%2520of%2520Law%2520in%2520A otearoa%2520New%2520Zealand_Power%2520Point.pdf&usg=AOvVaw0Htu6DqxXku85K_oEPyMJQ,.

[4] Origin And Concept of Rule of Law, LAWTEACHER  (Oct. 16, 2017, 7:05 p.m.), https://www.lawteacher.net/free-law-essays/administrative-law/origin-and-concept-of-rule-of-lawadministrative-law-essay.php.

[5] Hans Kelson, General Theory of Law and State, Harv. L. Rev. (1949).

[6]Bernard Cohn, Colonialism and its Forms of Knowledge 57 (Delhi Oxford University Press, 1997); Arjunappadurai, Worship and Conflict under Colonial Rule: A South Indian Case 171 (Delhi Orient Longman, 1983).

[7]Wade & Forsyth, Administrative Law 286-287 (10th ed. Oxford University Press, 2009).

[8] C.K. Takwani, Lectures on administrative law 21(6th ed. Eastern Book Company, 2017).

[9] Id at 42.

[10] Jeremy Waldron, The Concept and the Rule of Law 1 Georgia L. Rev. 43 (2008); Peter Ronald Desouza, The Question of the Sealed Envelope, The Hindu, Nov. 11, 2015.; Bimani Zinc Limited v. Kerala States Electricity Board & Ors.

[11]Bimani Zinc Limited v. Kerala States Electricity Board and Ors. 2006 ELR APTEL 86.

[12]Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil 1994 AIR 678.

[13]Satvir Singh v. Union of India and Ors.

[14] Rule of Law Around the World: Score and Ranking, World Justice report (Oct. 29, 2017), https://worldjusticeproject.org/sites/default/files/documents/RoLI_Final-Digital_0.pdf.

[15] Juan C. Botero & Alejandro Ponce, Measuring the Rule of Law, World Justice Project (November 2010), https://worldjusticeproject.org/our-work/publications/working-papers/measuring-rule-law