The Real “Rule of Law”

Aayush Sharma[1]

Abstract

The tern “Rule of law” though seems to be a simple concept is in reality a very hard one to explain. In simple words “Rule of Law” means that there should be supremacy of law and that no one should be above the law, the law should be the real ruler of everyone and every person should be governed by the same supreme law. It also means that the law should be same for every individual or every entity and law should not be unfair with everyone, this is the simplest understanding of the concept of “Rule of Law”, but in reality there are great many aspects to this concept which are necessary to understand for the purpose of finding the true essence of “Rule of Law”. For a state or a polity to have a true and real rule of law there should be presence of a supreme authority which will ensure the enforcement of the laws in the society.

The role of judiciary is also sometimes overlooked while discussing rule of law but in present conditions each and every polity should keep in mind the judiciary has a very important role in attaining Rule of Law. Judiciary holds the power of utilising the concept of “Rule of Law” to its real and full potential.

The concept of “Rule of Law” as given by professor A.V. Dicey in his book ‘INTRODUCTION TO THE STUDY OF LAW OF CONSTITUTION’ in 1885 is considered as the introductory point for this concept but whether it is still valid in the 21st century is the matter of deep discussion and thorough understanding of the concept itself while comparing it to the current needs of society at the same time.

Introduction

The origin of the term “Rule of Law” can be traced back to the early 13th century, a judge in the rule of king Henry 3rd introduced it for the first time and named it as “Rule of Law”, it is derived from the French phrase ‘La Principe de Legality’ which means ‘the principle of legality’. It means that in a state a government should be based on the principle of legality and not on the principle of men. In other word it means that in a polity a government should be such that it treats everyone equally and that there should no discrimination of any sort, equal laws and equal access to them is one of the main features of Rule of Law.

In India its origin can be traced back from the ancient times, the most common reference can be found in the ‘Upanishads’ as it says that a “Law is the king of kings”. Later the kings also used to rule with keeping main principal in mind that the law is supreme authority.

No individual should be above the law, no matter to their financial or social status and at the same time no person should be beneath the other in the eyes of law every person should be equal in front of law and their treatment should also be equal. Not only equality of individuals is the key feature of Rule of Law but the law at the same time should also be equal for everybody, there should be uniformity of law in a polity.

The concept of “Rule of Law” is a form of safeguard against the arbitrary actions of the government and of its official. It prevents the interest of the individuals in the society for unfair and arbitrary actions of the government. The real meaning of rule of law is that there should be ‘government of law and not government’ it is the duty of every government that it should work according the law of the land and not take any action arbitrarily.

The concept of “Rule of Law” does not provide any solid method of how laws should be made or what should be the “Laws” but it only tells there should be supremacy of law that is prevalent in the society.

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In a polity the individuals will feel safe only when there is rule of law and not rule of man. Rule of law is the very basis of the democracy; it means that if there is no rule of law then the head of state can make arbitrary actions thus making such state a dictatorship but when this power of making arbitrary decisions is curtailed due to rule of law then a true democracy emerges thus making “Rule of Law” an essential for a true democracy.

Rule of law and Grundnorm

A grundnorm is a norm or a rule on which other norms are based which is also superior to all the norms but no norm is superior to it. A grundnorm is very basis of rule of law as there should be a supreme authority or a supreme law which governs all the individuals of the society but which is not subjected to any supreme authority. It means that there should be a law above which there is nothing. A complete sovereignty of a law makes it a grundnorm.

In ancient times it is believed that the laws are made by the Gods and are present in the form of ‘Shastras’ and thus law have a supreme authority even over the king, the king is also subjected to those God made laws and is beneath those laws.

In modern India there is also a very clear presence of a ‘grundnorm’ that is the Constitution of India as all the laws are one way or the other are derived from the constitution and no law is above the constitution. Also no individual is above the constitution and all are equally subjected to it, as it is duty of the government the government to work according to the constitution there is no space for any form of arbitration in such a scenario. The Constitution by its various provisions provide for methods of ensuring “Rule of Law”

Dicey’s rule of law and its validity in 21st century India

Professor A.V. Dicey wrote a book in 1885 in which he thoroughly discussed the concept of “Rule of Law”, he gave three principles of Rule of Law which are

  1. Supremacy of Law: It is one of the most important requirements for Rule of Law that there should be supremacy of laws in a state and that no one should be above it. This is strictly followed in India in 21st century.
  2. Absence of Arbitrariness: The true essence of Rule of Law lies in the condition that there should be no form of arbitrariness in the state and in its functioning, if there is presence of any form of arbitrary power then there can be no place for rule of law. They both are complete contradictory of each other and they can in no case go hand in hand. In India in current conditions it is clearly observed that there is no presence arbitrariness but it cannot be said that it is completely non-existent, there are many cases in which it is seen that some arbitrary decisions are taken by the government as they tend to take benefit of the loop holes of the laws.” Arbitration is the very negation of Rule of Law.”[2]

Thus it can be said that even though this principle is very necessary even in 21st century but its strict observance is not always strictly observed, thus putting a big question on the concept of Dicey as it is not so valid in the 21st century.

Equality Before Law: This is the most important principle of rule of law according to which there should be equality and equal treatment of individuals in front of law, in other words the law should be such that it should treat everyone equally, it should not discriminate on any basis, a law should give equal protection to every person also the law should be equally accessible to all. In India Article 14 of the Constitution provides for Equality before law thus we can say that this principle of Dicey is completely and fully observed in India, this also shows the validity of this principle in 21st century.

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The concept of rule of law by Dicey is a dynamic concept and it is very difficult to capture the true essence of it in 21st century but by reading the above principles it can be understood that his idea of rule of law even though is given in 19th century still holds some validity in the 21st century. His first principle is completely valid and totally useful in 21st century and it is fully observed in India and in many other nations. The second principle is also very valid but its observance is the matter of discussion as the governments of all the states tend to break it by making arbitrary decisions in some way or the other, this is trend which is seen in 21st century, thus making it the most controversial principle of the lot. Lastly his third principle is the one which is most important in 21st century and it is a relief that it also strictly observed by all the states.

Democracy and rule of law

It is safe to say that Rule of Law is the very basis of a true democracy, they go hand in hand as there can be no presence of Rule of Law if there is no democracy. For democracy to be successful there must be a presence of the concept of rule of law. When the government of the superior of the state makes any or all decisions arbitrarily and with ill will then it cannot be a democracy and it will turn into a dictatorship. It is a characteristic feature of a democracy that there should be a supremacy of law which should prevail in the state if there is some other superior than the law the then that superior is a dictator who only work for his benefit. It can be easily said that Rule of Law and Democracy are co-existent and on one can exist without the other.

In Indian context it can easily deduced that there is presence of rule of law and that India is a true democracy.

Role of judiciary in “Rule of Law”

Judiciary must be credited as the most effective and useful organ in India when it comes to securing the “Rule of Law” in the modern times. Judiciary is that organ which keeps a check on every arbitral action taken by the parliament and it prevents the citizens from any loss that would bestow upon them due arbitrary actions of parliament. Judiciary being a completely independent organ can take all necessary steps against anyone who it thinks is at a fault. The concept of judicial activism is one which must be mentioned here as it gives a lot of power in the hands of judiciary.

Judiciary completely eliminates any possibility of arbitrariness, and absence of arbitrariness is the first essential of Rule of Law upon which the system of constitution is based. In a system which is governed by Rule of Law, any discretion given must be confined by some limits and those limits will ensure the evolution of such decisions which are completely free from any kind of ill will and arbitrariness and then the Rule of Law in its true sense will be seen.[3] The presence of judiciary is presence of such limitations upon any discretionary power but it is also important that judiciary should work without coercion and in itself should follow the Rule of Law and any decision that is taken by the judiciary must be according to the law only then it ensure the fairness and complete observance of Rule of Law in other spheres of the state as well. Judiciary thus is also called as watchdog of securing Rule of Law.

This concept of giving the power to judiciary to keep a check on arbitrary powers is adopted from the British jurisprudence as Britain in late 17th century and till now only has laws which are made by the judges and they truly ensure the effective observance of Rule of Law.

Constitution and Rule of law

The constitution of India is very wide in scope and it also provides of supremacy of Rule of Law. Part 3 of the constitution which provides of Fundamental rights ensures that there must be a presence of rule of law and not mere presence but complete supremacy should be given to it. The part 3 expressly provides for “equality before law,”[4] which clearly shows that equality is superior compare to the laws which eliminates any chance of any arbitrariness due to any law which is the basic element of Rule of Law.

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The constitution of India also provides for “freedom of speech and expression.”[5] The freedom of speech and expression is such an integral part of Rule of Law as in its essence is the concept of non-arbitrariness and the right of having freedom to express and to make any speech negates any form arbitrariness as in an arbitrary form of polity or in a dictatorship there no such freedom which also signifies the point that Rule of law only prevails in a democracy, but this right should be cautiously used as it cannot be used for spreading hate towards other individuals or towards state. There is also provision for restricting this right by imposing “reasonable restrictions”[6] which may be imposed by the state. The right of freedom of speech and expression does not give an absolute right to any person and dignity and freedom of other individuals should also be maintained. This further shows the presence of Rule of Law in India as even a Fundamental right can also be taken back in some situations which again show that law is above all in India.

Conclusion

The term “Rule of Law” is the very basis of existence of Fundamental Rights in modern India, it is very safe to say that in India Law is a true Ruler as no one is above it, but it does not mean that everyone is below the law, there is kind of harmony between individuals and the law and it individuals who makes the laws which will govern them but they are not above them such is the beauty of “Rule of Law” that the creators of law themselves submit to its rule. Law plays a role of modern day emperor who is loved by its people, law provides the interest of individuals in all the aspects and it tends to give some to them as well. People will willing choose to bind them with laws and they make law a superior authority and in case of any dispute they may refer to the for the purpose of resolving the dispute, this is indeed the “REAL RULE OF LAW” where law is above everything and nothing is above it.

But the current situation of India is far from “REAL RULE OF LAW” and achieving it seems like a distant dream as there are a lot of powerful players who tend to mend the law by making unjust use of loophole present in the statues and they then make very arbitrary decisions which is completely against the nature of rule of law. In nearly 71 years of independence India has seen a fair share of such events of arbitrary decision making which only for the benefit of some individuals of the society.

There is still a widespread of discrimination on various bases even when it is completely banned by the constitution and the leaders of the nation takes benefit out of it. For taking proper benefit of Rule of Law there is an urgent need of making the judiciary strong as only judiciary can take the country to the position where there is “Real Rule of Law”. The concept which now only appears as a distant dream as some people are making mockery of the law, can in near future become a reality but for achieving such position there is need to educate the people on a large basis.

India is a country with great potential and with such steps it can surely be a country which has a “Real Rule of Law”.


[1] Student, Vivekananda Institute of Professional Studies.

[2]  Kumara Vidyarthi v State of U.P. 1990 AIR 537.

[3] S.G. Jaisinghani v Union of India, 1967 S.C.R. 703.

[4] INDIA CONST. art.14.

[5] INDIA CONST. art.19, cl 1(a).

[6] INDIA CONST. art 19, cl 2.