“Where just incorporate the over two standards in

 “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”.

–         
Plato

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The
rule of law is antiquated perfect. It was talked about by the rationalist, for
example, Aristotle or Plato in 350 BC. Aristotle composed that law ought to
represent and those in powers are hirelings of law. It is gotten from the
French guideline ‘la principe de
legalite’ (the standard of lawfulness). It implies that the administration
is administered by standards of law and not of men. This control makes law the
incomparable. The regulation of Rule of Law is one of the essential standards
of English constitution. It is very much acknowledged in U.S and also Indian
Constitution. Administer of law is the premise of authoritative law.

The
precept of rule of law was started by Sir
Edward Coke. Later it was produced by A.V
Dicey and included three particular columns:

(I)
Supremacy of Law

It
implies that individuals ought to oversee as indicated by the law. Their energy
or obligations can’t surpass the limits of lawful system. Anything they ought
to be legitimizes in law. In India our constitution was preeminent and anything
which damages its fundamental guideline is void.

(II)
Equality under the watchful eye of Law

It’s
vital that law ought to be preeminent as well as that it ought to be simply and
reasonable. The law ought not to oppress race, sex, age or home. It is
imperative that law ought to be connected in just way. In our constitution this
idea is systematized in Article 14.

(III)
Predominance of Legal Spirit

In
including this as a necessity for the rule of law, Dicey’s conviction was that
it was inadequate to just incorporate the over two standards in the
constitution of the nation or in its different laws for the state to be one in
which the standards of control of law are being taken after. There must be an
upholding expert and Dicey trusted that this specialist could be found in the
courts. The courts are the authorities of the run of law and they should be
both fair and free from every outer impact. In this manner the flexibility of
the legal turns into an essential column to the rule of law.

In
present day speech Rule of Law has come to be comprehended as a framework which
has safe watchmen against official discretion, averts political agitation and
enables individuals to design the legitimate results of their activities.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Theoretical
Aspect of Rule of Law

India
embraced custom-based law framework with some change. In England, there is no
composed constitution or any type of composed managerial law. Uncertain trusted
that regular law and rule of law is sufficient to evacuate official assertion.
Be that as it may, we embraced this framework and have formal composed
constitutions in which the rule of law is arranged to guarantee consistence.

In
India constitution is preeminent. The officials and legislatives get their
power from the constitution. Any law which isn’t in similarity with the
constitution is void. This is expressed in Article 13. Article 14 guarantees
fairness under the watchful eye of law. No one ought to be separated based on
station, sex, religion and so forth. Our constitution incorporates division of
energy between three wings i.e. administrative, official and legal. The
administrative and official can’t impact legal. This guarantees free legal
which is one of the mainstays of Dicey’s run of law. In Union of India v. President, Madras Bar Association1,
the Supreme Court held that “Rule of Law has a few features, one of which
is that question of natives will be chosen by Judges who are free and
unprejudiced; and that debate as to legitimateness of demonstrations of the
Government will be chosen by Judges who are autonomous of the Executive.”
Article 21 ensures Right to life and freedom. It checks the subjective energy
of official and ensures that freedom of a man isn’t diminished aside from in
understanding of law.

The
constitution 1st amendment shocked the status of Rule of Law. In Shankari Prasad vs Union of India2,
the question came whether fundamental right can be amended under article 368.
The Supreme Court held that the parliament can amend fundamental right. The
word ‘law’ under article 13 included legislative action not the constitutional
amendment. Thus, constitutional amendment is valid even if it abridges with the
fundamental right. In Sajjan Singh v
State of Rajasthan3,
the Supreme Court again held the majority judgment given in earlier case4
and concluded that amendment of constitution means amendment of all provisions
of the constitution.

However,
these two judgements were overruled in Golaknath
vs State of Punjab5,
where it was held that parliament cannot amend Part III of the constitution.
So, at the end Rule of Law was applied. In the case of Keshavananda Bharti v. State of Kerala6 the
Supreme Court by majority overruled the decision given in Golaknath’s case and
held that Parliament has wide powers of amending the Constitution and it
extends to all the Articles, but the amending power is not unlimited and does
not include the power to destroy the basic feature or framework of the
Constitution. There are implied limitations on the power of amendment under
Article 368. Within these limits Parliament can amend every Article of the
Constitution. Thus, Rule of law prevailed.

In
various other judgements the court reinforced the doctrine of rule of law. In ADM Jabalpur vs Shivkanth Shukla7,
the question came before the court that whether there was any other rule of law
except article 21. This was during the emergency when article 14, 19 and 22
were suspended. The answer of 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: “Indeed, even without Article 21 in the
Constitution, the state has no energy to deny a man of his life and freedom
without the specialist of law. Without such holiness of life and freedom, the
refinement between an untamed society and one represented by laws would stop to
have any significance… Rule of Law is presently the acknowledged standard of
every single edified society”.

 

 

 

 

 

 

 

 

Practical
Application of Rule of Law in India

The
application of Rule of Law in India can be traced in the constitution very
clearly. There is separation of power
between legislature, executive and judiciary. The law is made by the parliament
who in turn is the representatives of people. The law making process is
transparent and no one is above law. The judiciary
is impartial and independent from other organs of government.

The
part III of our constitution incorporates key rights which can’t be taken by
anyone regardless. In ADM Jabalpur v.
Shivkanth Shukla8,
which tested the authoritative request amid crisis, there was an inquiry
whether there is govern of law with the exception of in Article 21. This was
being referred to as requirement of Article 14, 21 and 22 were suspended amid
the decree of crisis. The appropriate response was then in adverse in any case,
Justice H.R Khanna influenced disagreeing
sentiment and said “To even without Article 21 in the Constitution, the
state has no energy to deny a man of his life and freedom without the
specialist of law. Without such holiness of life and freedom, the refinement
between a rebellious society and one represented by laws would stop to have any
significance… ”

Another
critical part of Rule of Law is that there can be no activity of subjective
power by government. The administration needs to act inside the structure of
principles and direction which limits the abuse of power. In Som Raj v. Province of Haryana9,
Supreme Court said that absence of discretionary power is one of the signs of
Rule of Law. In any case, beyond any doubt finish imbalance and mediation can’t
be killed. In a similar vein the reality of the matter is that the idea of lead
of law is produced and predominant in the vast majority of the custom-based law
nations, for example, India itself. In my view, the control of law is a kind of
a trial of authoritative request at a given time. Article 14 says that no
individual should be denied of his life or individual freedoms aside from as
per technique set up by law. The administration authorities and the
administration itself are not exempt from the laws that apply to everyone else.
In India the idea is that there is uniformity under the watchful eye of the law
and equivalent assurance of laws. Any lawful wrong dedicated by any individual
would be rebuffed in a comparative way. The law settled in the standard
official courtrooms applies to every one of the general population with measure
up to compel. Openly benefit likewise the precept of equity is acknowledged.
The suits for break of agreement against the state government authorities, open
workers can be recorded in the standard official courtrooms by the general
population.

In
Chief settlement Comm Punjab v. Om
Prakash10,
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.”

India
has modernised the concept of rule of law and made it supreme. There are
numerous cases where the court has declared the doctrine of Rule of Law as a
basic structure. In Keshavananda Bharti
v. State of Kerala11,
Supreme Court has said that the parliament does not have unlimited power to
amend the constitution and anything which violates the basic structure is ultra-virus.
Again in Maneka Gandhi v. Union of India12,
the court said that equality before law is very important and is a part of
basic structure of our constitution. It acts as a deterrent against arbitrary
power of government or its officials. Thus, the case saw a high degree of
judicial activism, and lead into a new era of growing horizons of fundamental rights
and Article 21 in particular.

Indira Gandhi v. Raj Narain13,
the case that shaped the Indian politics showcases the same principle. Here under
39th amendment, a law was passed which provided immunities to
certain class of person from judicial review (Article 329-A). The Supreme Court
invalidated the article 329-A on the ground that it was violating the basic structure
of constitution and it was beyond the power of parliament to amend in such
cases.

In
the case of Sukhdev v. Bhagatram14
Mathew J. declared that whatever be the idea of the administer of law,
regardless of whether it be the importance given by Dicey in his “The Law
of the Constitution” or the definition given by Hayek in his “Street
to Serfdom” and “Constitution of freedom” or the composition put
forward by Harry Jones in his “The Rule of Law and the Welfare
State”, there is, as pointed out by Mathew, J., in his article on
“The Welfare State, Rule of Law and Natural Justice” in “Popular
government, Equality and Freedom,” “significant understanding is in
juristic suspected that the immense motivation behind the control of law
thought is the security of the person against discretionary exercise of energy,
wherever it is found”. It is in reality incomprehensible that in a vote
based system administered by the rule of law the official Government or any of
its officers ought to have self-assertive control over the interests of the
person. Each activity of the official Government must be educated with reason
and ought to be free from assertion. That is the very substance of the rule of
law and its exposed negligible prerequisite. Also, to the use of this standard
it has no effect whether the activity of the power includes fondness of some
privilege or refusal of some benefit.

In
Secretary State of Karnataka and Ors. v.
Umadevi and Ors15
a Constitution Bench of this Court has laid down the law in the following
terms:

“Subsequently, plainly
adherence to the administer of fairness in broad daylight work is a fundamental
element of our Constitution and since the lead of law is the basis of our
Constitution, a court would positively be handicapped from passing a request
maintaining an infringement of Article 14 or in requesting the disregarding of
the need to conform to the prerequisites of Article 14 read with Article 16 of
the Constitution.”

 

 

 

 

 

 

 

 

 

 

Criticism

We
have seen how rule of law has been the basis for various judgements in our country.
However, it is true that there are numerous cases where this concept has been
departed. The foundation of rule of law lies in ‘Equality’, but there are some
instances of inequality in our constitution such as no case can be filed
against diplomats, no criminal proceeding against the President or the
Governor, legal immunities enjoyed by Member of Parliament. Thus, it can be
said that India does not follow this concept fully.

As
it is said that law should develop with the changing society, it’s important
that we plug the weakness present in this doctrine. Critics have said that there
has been no clear distinction between ‘arbitrary power’ and ‘discretionary
power’. It has also been pointed out the Dicey’s rule of law lacks to see the
future as he cannot have imagined today’s need of discretionary power in the
state.

Another
aspect pointed out by the critics is that the Dicey’s concept of rule of law
provides insufficient individual and civil rights as it is more concerned with
the due process than the content of law.

The
Dicey’s idea of control of law has likewise been scrutinized. Law changes with
time. As the general public advances, even the law of the nation ought to
create. Some view the rule of law as nothing other than an apparatus of the
capable to keep up business as usual in the lawful framework. The general
agreement is that business as usual, a long way from being impartial, serves to
ensure the capable to the detriment of the weakened. This absence of non-partisanship
in the control of law runs in opposition to the perfect followed to Aristotle,
that in light of the law each individual ought to be equivalent; that it is
one’s humankind, not one’s status in the public eye that requires that laws be
fairly connected. More extraordinary faultfinders guarantee that “the
liberal worldview has pulverized the run of law.” The method of reasoning
behind this announcement is that, thinking about the genuine condition of the world,
many liken the rule of law with legitimateness. Notwithstanding, this is an
imperfect condition as “legality essentially implies that there are laws
and says nothing in regards to the nature of those laws.” Hence, there are
numerous lacunas in the idea of manage of law which servers the reason of
non-execution of the idea legitimately.

 

 

Conclusion

The
rule of law is a thought regarding law, equity, and profound quality. It thinks
about what laws, standards, rules, methodology, frameworks, and structures
ought to be and what they ought not to be. Standards ought to be broadcasted
freely by the people groups or potentially their suitable agents. Intrinsic in
this plan are three substances. One is that the law oversees individuals and
additionally the administration itself. Next, people ought to comply with the
law. Third is that the standards we call law should be obey able – not just in
the feeling of being known, understandable and unsurprising, yet in the most
profound feeling of being simply. It is a vital component for popular
government and great administration and furthermore a help to encourage
soundness and peace. As indicated by a few, it might help keep wars from
happening in any case. Also, Human rights can be considered as a check over the
feedback of rule of law i.e. absolutism and tyranny.

The
lead of law in the Indian culture has not accomplished the planned outcomes is
that the profoundly settled in estimations of constitutionalism or maintaining
the Constitution of India have not taken roots in the general public.
Defilements, Terrorism and so on are all direct opposite to Rule of Law. As of
late, customary law conventions, the Constitution of India, and the perseverant
part of the legal have added to the improvement of manage of law. Yet, on
events we have slipped over into government by will just to return sadder and
more astute to the control of law when hard certainties of human instinct showed
the childishness and self-love of man and reality of the announcement that
power taints and supreme power adulterates totally. A couple of cases of how
our legal framework has maintained the rule of law and guaranteed equity is
plainly found in the formation of new roads looking for solutions for human
rights infringement through PIL requests and advancement of honest to goodness
intercessions by the legal in the territories of fortified and tyke work,
prostitution, spotless and solid condition and so forth yet on the darker side
there have been violations of fundamental rights too. For e.g. the separation
of eunuchs in light of their class and sex makes the group a standout amongst
the most weakened gatherings in Indian society Eunuchs may have an acknowledged
place in Indian culture, yet it is a place basically at the base of the social
load – making them a sexual as well as an exceptionally denied social minority.

 

 

 

 

1 2010 11 SCC 1

2 AIR 1951 SC 455

3 AIR 1965 SC 845

4 Shankari Prasad vs Union of
India (AIR 1951 SC 455)

5 1967 AIR 1643

6 (1973) 4 SCC 22

7 AIR 1976 SC 1207

8 AIR 1976 SC 1207

9 1990 SCC  (2) 653

10 1968 SCR (3) 655

11 (1973) 4 SCC 22

12 1978 AIR 597

13 AIR 1975 SC 2299

14 AIR 1975 SC 1331

15 (2006) 4 SCC 1