Rule of Law

RULE OF LAW

Author: Deepanshi Kalra

This article traces the concept of Rule of Law which is a dynamic and viable concept along with postulating the length of its application in India while determining its merits and pitfalls.

The concept of Rule of Law carries momentum among democratic countries as it attributes great value to the conception of constitutionalism. The root of this doctrine of ‘Rule of Law’ can be traced back to the times when there was a system of Droit administratif in England.

Sir Edward Coke was the founder of this doctrine, and his work was later developed by A.V. Dicey in his classic work “The law and The Constitution” published in 1885. Dicey posed extreme significance to the presence of arbitrariness in the rule of governments. Dicey emphasized through this concept that limitation on the power of discretion provided to the government must be imposed.

In simple words, the ‘rule of law’ denotes that the law is supreme and the powers provided to the executives must be exercised as per the “Rule of Law”. According to dicey, even when there is a presence of law, there is room for arbitrariness due to the power of discretion provided to the executive. Just like God is above all, even the king, similarly law must be given that authority that it is considered as ultimate so that the king does not act capriciously, and confirm his actions with the contours of Rule of law. For rule of law to not operate under the whimsicality of the kings or the executives, limitation on its liberty is necessary to avoid a breach of law and vindicate the supremacy of law.

Dicey attributed three meaning to this fundamental concept:

1.      Supremacy Of Law

2.      Equality before Law

3.      Judge-made Constitution

SUPREMACY OF LAW

This principle articulates the dominance of law over the discretionary power provided to the executives. It encourages that no one should be made to undergo any undue rejection or be arrested or punished except by the due process of law. In case of any breach, as per the legal manner, the procedure must be dealt with and not otherwise.

Also, it emphasizes the fundamental rule of democratic government as opposed to the undue functions established by the autocratic government and in this aspect, if the wide powers of the government interfere with liberty and freedom of people then it must be laid down.

EQUALITY BEFORE LAW

The principle of equality before law asserts that everyone should be subjected to the law of the land in the same manner. For the law to prevail equally, the inhibitions entrusted in discrimination, different treatment of people, singling them out based on factors of status must be removed.

The separation of people into groups to subjugate them will lead not to the imposition of equality among people in a democratic country.

This principle of equality before law simply enunciates that law must be the same for everybody irrespective of the purpose they serve.

To regulate this principle there should be an absolute absence of special privileges to the officials, all must be committed to the same law established by the authority and there should be no deviation in their governance.

JUDGE MADE CONSTITUTION

In many countries, the rights provided to people are enshrined in the constitution of those countries. But this system of the predominance of legal spirit does not sustain the privileges provided to people in the form of these rights as they can be scrapped or curtailed at any time.

Dicey believed that instead of a written constitution, to assert the rights of citizens, a judge-made constitution must be enforceable wherein the customs and beliefs of people are followed.

Therefore judicial decisions will aid in administering justice to people than a written document which is unviable.

APPLICATION OF RULE OF LAW IN INDIA

The constitution seeks to protect the individual rights of people and the spirit of human liberty. However, some conflicts are discerned between the rule of law on the one hand and the tension of state-building on the other. The latter concept often threatens individual liberty and freedom because of the authoritarianism of the rule of law.

In this context, the concept of judicial review established in India strikes the proper balance between contradictory trends. The independence of the judiciary is an inalienable attribute in every constitution as it serves the purpose of providing welfare to the people by balancing both the authoritative and legitimate ends so that people can have opportunities to enjoy life which is a conducive development.

The concept of personal liberty enshrined in the constitution along with the freedom provided to the citizens to approach the courts in case of violation of their rights established the concept of rule of law in a fruitful manner. The vision of the preamble of the Indian constitution places the dignity of the individual on the same footing as the unity and integrity of the nation. It confirms the concept of equality before the law and equal protection of laws.

Even though the doctrine is incorporated in the Indian constitution as a basic structure, it however with passing time and various landmark judgments by the supreme court on varied concepts, led to the questioning of the cardinal principles of this doctrine which was later resolved by the prominent judgments given by the court.

MERITS

• A powerful weapon in keeping administrative actions under limits.
• Served as a constitutional safeguard of legal systems.
• A touchstone to measure the actions of administrative authorities.
• Outrightly opposed unfettered discretion of government authorities.
• Asserted the importance of equality before the law
• Emphasized the role of judicial bodies in enforcing rights.

PITFALLS

• Limited to political struggle and not logical deductions^[1].
• Ignored the momentous inclusion of discretionary power with arbitrary power.
• Misunderstood the reality that all administrative actions are immune from judicial scrutiny.

CONCRETE CASES

In this case of ADM Jabalpur v. Shivkant Shukla^[2], popularly known as the Habeas Corpus case the Supreme Court was confronted with the question of whether the third limb of doctrine was an integral part of the Indian Concept of Rule of Law. The basic issue was whether there was any ‘Rule of Law’ in India apart from and irrespective of Article 21 of the Constitution.

In the case of Kesavananda Bharati v. the State of Kerala^[3] rule of law was considered as an “aspect of the doctrine of the basic structure of the constitution which even the plenary power of parliament cannot reach to amend. It was held that the doctrine is an antithesis to arbitrariness and formulates an expansion of the concept of equality.

In the case of Som Raj v. State of Haryana^[4], the court rightly observed that the first postulate of the doctrine of rule of law is the absence of arbitrariness upon which the entire constitution edifice is relied upon.

In the case of Indira Nehru Gandhi v. Raj Narain^[5], Article 329 A (4) was believed to be offensive of the rule of law concept which postulates the pervasiveness of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere.

---

---

^[1] Paton, Textbook of Jurisprudence (4th Edn.) 346.

^[2] ADM V. Shivkant Shukla, (1976) 2 SCC 521: AIR 1976 SC 1207: 1976 Supp SCR 172.

^[3] (1973) 4 SCC 225: AIR 1973 SCC 1461

^[4] (1987) 1 SCC 362.

^[5] 1975 Supp SCC 1: AIR 1975 SC 2299