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RULE OF LAW {SUPERMACY OF LAW}

RULE OF LAW

 


MEANING OF RULE OF LAW

Rule Of Law, it means that no man is above law and also that every person is subject to the jurisdiction of ordinary courts of law irrespective of their position and rank.

The term ‘rule of law’ is originated from England and India has taken this concept. The concept of rule of law further requires that no person should be subjected to harsh or arbitrary treatment. The word ‘law’ in rule of law means that whether he is a man or a society, he must not be governed by a man or ruler but by law. In other words, as per Article 13 of the Indian Constitution rule of law means law of land.


According to Black’s Law Dictionary: “Rule of Law” means legal principles of day to day application, approved by the governing bodies or authorities and expressed in the form of logical proposition.


According to Oxford Advance Learner’s Dictionary: “Rule of Law” means the situation in which all the citizens as well as the state are ruled by the law.

 



CONCEPT OF RULE OF LAW

The originator of the concept of rule of law was Sir Edward Coke the Chief Justice in James I’s Reign.

The concept of rule of law is of old origin. Greek philosophers such as Plato and Aristotle discussed the concept of rule of law around 350 BC. Plato wrote “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state”.

 

Aristotle wrote “law should govern and those who are in power should be servant of the laws.”


The derivation of the phrase ‘ Rule of Law’ is from the French phrase ‘la principe de legalite’ which implies principle of legality. By this phrase it refers to a government based on principles of law and not of men. One of the basic principles of Constitution is rule of law and this concept is up to standard in both India and America Constitution.


The doctrine of rule of law is the entire basis of Administrative law. As discussed by Aristotle, the concept of rule of law is grounded in the ideas of justice, fairness and inclusiveness. Today, an intricate chain of fundamental ideas is incorporated in rule of law which further encompasses equality before law, equal treatment before the law for government, independence of judiciary, consistency, transparency and accountability in administrative law.

 



ORIGIN OF RULE OF LAW


The origins of the Rule of Law theory can be traced back to the Ancient Romans during the formation of the first republic; it has since been championed by several medieval thinkers in Europe such as Hobbs, Locke, and Rousseau through the social contract theory. Indian philosophers such as Chanakya have also espoused the rule of law theory in their own way, by maintaining that the King should be governed by the word of law.

The formal origin of the word is attributed to Sir. Edward Coke, and is derived from French phase ‘la principe de legalite’ which means the principle of legality. The firm basis for the Rule of Law theory was expounded by A. V. Dicey and his theory on the rule of law remains the most popular. Dicey’s theory has three pillars based on the concept that “a government should be based on principles of law and not of men”, these are:

Supremacy of Law: 

This has always been the basic understanding of the rule of law that propounds that the law rules over all people including the persons administering the law. The lawmakers need to give reasons that can be justified under the law while exercising their powers to make and administer the law.

Equality before the Law: 

While the principle of supremacy of law sets in place cheques and balances over the government on making and administering the law, the principle of equality before the law seeks to ensure that the law is administered and enforced in a just manner. It is not enough to have a fair law but the law must be applied in a just manner as well. The law cannot discriminate between people in matters of sex, religion, race etc. This concept of the rule of law has been codified in the Indian Constitution under Article 14 and the Universal Declaration of Human Rights under the Preamble and Article 7.

 

Pre-dominance of legal spirit

In including this as a requirement for the rule of law, Dicey’s belief was that it was insufficient to simply include the above two principles in the constitution of the country or in its other laws for the state to be one in which the principles of rule of law are being followed. There must be an enforcing authority and Dicey believed that this authority could be found in the courts. 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.

In modern parlance Rule of Law has come to be understood as a system which has safeguards against official arbitrariness, prevents anarchy and allows people to plan the legal consequences of their actions.





PRINCIPLE OF RULE OF LAW

The main principle of the rule of law is - equality of all people before the law. In India, it is adopted in the same sense in which it is adopted in English-American legislation. The Indian Constitution declares that for every citizen there will be only one law which will be equally applicable. No one will be privileged for reasons of birth, caste etc. (Article 14).

In a state, if a class is privileged and other people are deprived of it, then the rule of law cannot be called there. Therefore, in ancient states or in the feudal society of the Middle Ages where there was a difference between the rights of the ruling class and the common people, there was no equality of law. For example, in the legislation of the Kingdom of Rome, we find differences between the rights of the Patricians (upper class) and the Plebian (populace) and Roman citizens and Peregrinas (inhabitants of the conquered country). Slavery was also supported by the method.

 In India, the common law of the country applies equally to every person, whether it is a king or poor, and everyone gets equal justice in the ordinary court. There are few exceptions to this rule in terms of political and international mutual dignity. As such, the President and the Governor cannot be punished by the ordinary court of the country (Article 361 (1)) The King, President or Ambassador of foreign countries is outside the jurisdiction of the Court (Article 51).

In the Constitution of India, equality of protection of law is given not only to the citizens of the country, but also to foreigners equally, irrespective of caste, religion, varna, place of birth, etc.

The right of men and women is also not differentiated (Article 15). All citizens have the right to equal opportunity in livelihood or government appointment (Article 16). Untouchability has been completely banned (Article 17). Apart from military and educational titles, the state cannot grant other degrees to its citizens (Article 18). A citizen can be punished only once for an offense prescribed by law (Article 20). Death penalty or imprisonment can be given to any person only in a lawful manner (Article 21), only in exceptional circumstances in a crisis can the government arrest anyone without conducting the case (Article 19 (2)).

One can pursue a case against the government in a civil court over the abduction of its fundamental rights conferred by the Constitution. The Constitution directs that the High Courts of the States and the Supreme Court of the country protect these fundamental rights. Justice has been enacted by impartial and fearless judges. It is the duty of the government to follow their orders. Fair and independent newspapers and conscious public opinion are the watchdogs of the people.

 

 

 

DICEY’S VIEW ON ADMINISTRATIVE LAW

Law or rule of law means rule by law in place of will. This is the tradition of British rule and the same exists in its true sense, although the rules in every country is ruled by law. Dicey has become a famous legal person of England. According to him, administrative law is a violation of the rule of law.

Rule of Law - Dicey's Rule (Rule of Law-Vote of Dicey)

According to Lord Hewert, the rule of law means superiority and supremacy of law rather than autocracy. In fact, the rule of law insists on following a "common law", under which all individuals, whether a king or a rake, a rich or a poor, a government person or a non-governmental, are governed by the same court by similar laws. It also means that the person will be punished only for violating the prevailing law.


Administrative Law - Opinion of Votes by Dicey:

The meaning of the rule of law given by the Dicey has lost its original meaning in England with certain exceptions, such as citizens against civil servants can be brought to trial within six months, the Church's law is applicable to the priests, a violation of equality before the law.

Similarly, in England, the executive has got many legislative powers under the same arrangement, which has demolished the concept of common law in the developed administrative law. It is up to the will of the Home Secretary to whom to grant British citizenship or not.

Dicey considered it a violation of the rule of law. Lord Hayward called it the new autocracy. Administrative law, according to Dicey, cannot replace the rule of law. It cannot be synonymous with law in any way.

Although it is being used as a way of dealing with modern complications, it increases the autocracy of the administration. Also, the concept of one country and one law also collapses. This gives rise to inequality. However, Dicey has also acknowledged that administrative law is necessary to meet the requirements.

In France, also known for administrative law, common law is applicable to most of the system and the rule of law is the basis of constitutional governance of every country today.

 

 


RULE OF LAW UNDER INDIAN CONSTITUTION

In order to develop Indian democracy, rule of law has played a great role. At the time of framing of Constitution, the framers had two options i.e. USA and England. Some of the provisions were adopted from USA and some of them were adopted from England.

 

Rule of law was adopted from England by our constitutional fathers and many provisions were incorporated in the Indian Constitution. Indian Constitution is considered to be supreme and no one is above Indian Constitution. Rule of law is also given impliedly in the preamble and such concept is enshrined in Part III of the Indian Constitution.


In case of violation of such rights, one can approach Supreme Court or High Court under Article 32 and 226 of the Indian Constitution. The Constitution of India is enriched with the principles of law i.e. justice, equality and liberty. Any law made by the Central government or State government must be complied in accordance with the Constitution of India. If any law made by the legislature contravenes with the provisions of the Constitution then such law will be declared void.

Under Article 32 of the Indian Constitution, the Supreme Court has the power to issue writs in the nature of Habeas Corpus, mandamus, prohibition, quo warranto, and certiorari. The power of judicial review is also given to Supreme Court in order to prevent any ultra vires law so as to preserve ‘Rule of law’.

 

 


ROLE OF INDIAN JUDICIARY

There are a plethora of cases where the concept of rule of law was discussed and came into light. Some of the cases are as follows:

1. ADM JABALPUR VS SHIVKANT SHUKLAThis case is also known as “Habeas Corpus case”. It is one of the most important case when comes to rule of law. The question that was raised before the hon’ble court was that whether there was any rule of law in India apart from Article 21 of the Indian Constitution. It was in context relating to the proclamation of emergency where the enforcement of Articles 14, 21 and 22 were suspended.


2. SOM RAJ V. STATE OF HARYANA In this case it was held that the absence of arbitrary power is the postulate of rule of law upon which the whole constitutional edifice is dependent.

 

3. UNION OF INDIA V. RAGHUBIR SINGH In this case it was held by the court that a considerable degree that governs the lives of the people and regulates the State function flows from the decision of the superior courts.


4. CHIEF SETTLEMENT COMMISSIONER, PUNJAB V. OM PRAKASH In this case, Supreme Court observed“In our constitutional system, the central and most characteristic feature is the concept of rule of law which means, in the present context, the authority of law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the matter into notice.”

 

5.  KESHVANANDA BHARTI V. STATE OF KERELA  In this case, the Supreme Court enunciated the concept of rule of law as one of the most important aspects of doctrine of basic structure.


6. MANEKA GANDHI V. UNION OF INDIA In this case Supreme Court declared that Article 14 strikes against arbitrariness.


7. GADAKH YASHWANTRAO KANKARRAO V. BALASAHEB VIKHE PATIL In this case, the ratio laid down was “If the rule of law has to be preserved as the essence of the democracy of which purity of elections is a necessary concomitant, it is the duty of the courts to appreciate the evidence and construe the law in a manner which would sub serve this higher purpose and not even imperceptibly facilitate acceptance, much less affirmance, of the falling electoral standards. For democracy to survive, rule of law must prevail, and it is necessary that the best available men should be chosen as people's representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values who win the elections on a positive vote obtained on their own merit and not by the negative vote of process of elimination based on comparative demerits of the candidates.”


8. SECRETARY, STATE OF KARNATAKA AND ORS. V. UMADEVI A Constitution Bench of this Court has laid down the law in the following terms:“Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution.”


 


THEORETICAL APPLICATION OF RULE OF LAW IN INDIA

The Constitution of India intended for India to be a country governed by the rule of law. It provides that the constitution shall be the supreme power in the land and the legislative and the executive derive their authority from the constitution.

Any law that is made by the legislature has to be in conformity with the Constitute failing which it will be declared invalid, this is provided for under Article 13 (1). Article 21 provides a further check against arbitrary executive action by stating that no person shall be deprived of his life or liberty except in accordance with the procedure established by law.

Article 14 ensures that all citizens are equal and that no person shall be discriminated on the basis of sex, religion, race or place of birth, finally, it ensures that there is a separation of power between the three wings of the government and the executive and the legislature have no influence on the judiciary. By these methods, the constitution fulfills all the requirements of Dicey’s theory to be recognized as a country following the Rule of Law.

 

The Supreme Court of Indian has further strengthened this mechanism through its various judgments, the foremost of them being, A D M Jabalpur v. Shivkanth Shukla In this case, the question before the court was ‘whether there was any rule of law in India apart from Article 21’. This was in the context of suspension of enforcement of Articles 14, 21 and 22 during the proclamation of an emergency. The answer to the majority of the bench was in negative for the question of law. However, Justice H.R. Khanna dissented from the majority opinion and observed that:

“Even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning…Rule of Law is now the accepted norm of all civilized societies”

 

In Chief Settlement Commr; Punjab v. Om Prakash, it was observed by the Supreme Court that, “In our constitutional system, the central and most characteristic feature is the concept of rule of law which means, in the present context, the authority of law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the matter into notice.”

In the case of Satvant Singh Sawhney v. D Ramarathanana the Supreme Court has held that every executive action, if it operates to the prejudice of any person, must be supported by some legislative authority.

In Secretary, State of Karnataka and Ors. v. Umadevi and Ors a Constitution Bench of this Court has laid down the law in the following terms: “Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution.”

 




PRACTICAL APPLICATION OF RULE OF LAW IN INDIA

Critiques have often maintained that the Rule of Law in India is merely a theory with no practical application. While it cannot be denied that the country is one where corruption runs rampant and according to 2012 World Justice Project data, India fares well on openness of government and democratic controls, in the category limited government powers, which evaluates the checks on government, India ranks 37th of the 97 countries surveyed around the world, is first among five in its region and comes in second out of 23 lower-middle-income countries. Yet the rule of law that exists on paper does not always exist in practice. When it comes to procedural effectiveness, India fares poorly. In the categories of the absence of corruption and order and security, India ranks 83rd and 96th globally.

In addition to the problem faced in India due to corruption in the lawmaking and justice delivery systems, there also exists the problem of old laws still being in place. India does not adopt a ‘sunset’ clause in its laws and post-independence the Indian Independence Act provided that all laws existing under the colonial rulers would continue to exist under the new system unless explicitly revoked by the parliament.

While this did provide the nation with a firm basic system of laws, thereby preventing a situation of anarchy in the immediate aftermath of independence, some of these laws were drafted to suit the environment of those time and they become hard to interpret in the current environment. This leads to ambiguity and endless litigation in an attempt to interpret the provisions.

While these problems persist it is important to note that the constitutional mechanism has provided enough safeguards to endure that the Rule of Law in some form will always persist. One of the most important factors contributing to the maintenance of the Rule of Law is the activity of the courts in the interpretation of the law. It is rightly reiterated by the Supreme Court in the case Union of India v. Raghubir Singh that it is not a matter of doubt that a considerable degree that governs the lives of the people and regulates the State functions flows from the decision of the superior courts.

Apart from the judicial decision, the constitutional mechanism in itself provides for the protection of the rule of law through the creation of monitoring agencies. While there have been numerous scams that have come to light in the last few years, the fact that must also be noted is that these scams have come to light and the justice delivery mechanism has been set in motion against the perpetrators.

The role of the Central Vigilance Commission and the Comptroller and Auditor General in the exposure of these discrepancies is commendable and this shows how the law has provided for its own protection by putting in place multiple levels of safeguards which ensure that it will be effective at some level. The Election Commission of India, a constitutional body has also been undertaking the task of ensuring free and fair elections with some degree of efficiency.

 

 

 

 

 

CONCLUSION
From the above mentioned discussion, it can be concluded that Supremacy of law is the Aim, Rule of Law is the best tool to achieve the Aim. Some of the efforts are also taken by the court where the Rule of Law is linked with Human Rights of the people. Strategy is being evolved by the court by which government can be forced not only to submit to law but also to create conditions where capacities can be developed by the people so as to enjoy their rights in proper and meaningful manner.

In the Indian society, the rule of law has not achieved the intended results. A few examples where rule of law was upheld by our judiciary and ensured justice can be clearly seen in the creation of new avenues seeking remedies for human rights violations by filing of PIL pleas.

The originator of this concept i.e. Sir Edward Coke, the Chief Justice of King James I’s reign maintained that the King should be under God and the law and also he established the supremacy of law against the executive and that there is nothing higher than law.

 


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