“Where those in powers are servants of law.

“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
ancient ideal. It was discussed by the philosopher such as Aristotle or Plato
in 350 BC. Aristotle wrote that law should govern and those in powers are
servants of law. It is derived from the French principle ‘la principe de legalite’ (the principle of legality). It means that
the government is governed by principles of law and not of men. This rule makes
law the supreme. The doctrine of Rule of Law is one of the basic principles of
English constitution. It is well accepted in U.S as well as Indian
Constitution. Rule of law is the basis of administrative law.

The doctrine of rule of
law was originated by Sir Edward Coke. Later it was developed by A.V Dicey and
included three distinct pillars:

(i) Supremacy of Law

It means that people
should govern according to the law. Their power or duties cannot exceed the
boundaries of legal framework. Anything they do should be justifies in law. In
India our constitution was supreme and anything which violates the basic
principle of it is void.

(ii) Equality before
Law

It’s not only important
that law should be supreme but also that it should be just and fair. The law
should not discriminate against race, sex, age or domicile. It is important
that law should be applied in just manner. In our constitution this concept is
codified in Article 14.

(iii) Predominance 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 safe guards against
official arbitrariness, prevents anarchy and allows people to plan the legal
consequences of their actions.

 

 

Theoretical aspect of
Rule of Law

India adopted common
law system with some change. In England, there is no written constitution or
any form of written administrative law. Dicey believed that natural law and
rule of law is enough to remove executive arbitrariness. However, we adopted
this system but have formal written constitution in which rule of law is
codified to ensure compliance.

In India constitution
is supreme. The executives and legislatives derive their authority from the
constitution. Any law which is not in conformity with the constitution is void.
This is stated in Article 13. Article 14 ensures equality before law. Nobody
should be discriminated on the basis of caste, sex, religion etc. Our
constitution includes separation of power between three wings i.e. legislative,
executive and judiciary. The legislative and executive cannot influence
judiciary. This ensures independent judiciary which is one of the pillars of
Dicey’s rule of law. In Union
of India v. President, Madras Bar Association1,
the Supreme Court held that “Rule of Law
has several facets, one of which is that disputes of citizens will be decided
by Judges who are independent and impartial; and that disputes as to legality
of acts of the Government will be decided by Judges who are independent of the
Executive.”  Article 21
guarantees Right to life and liberty. It checks the arbitrary power of
executive and makes sure that liberty of a person is not curtailed except in
accordance 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 important
aspect of Rule of Law is that there can be no exercise of arbitrary power by
government. The government has to act within the framework of rules and regulation
which restricts the abuse of power. In Som
Raj v. State of Haryana9,
Supreme Court said that absence of arbitrary power is one of the hallmarks of
Rule of Law. However, it is true that complete inequality and arbitrariness cannot
be eradicated. In the same vein it is true that the concept of rule of law is
developed and prevalent in most of the common law countries such as India
itself. In my view, the rule of law is a sort of a test of administrative order
at a given time. Article 14 says
that no person shall be deprived of his life or personal liberties except
according to procedure established by law. The government officials and the
government itself are not above the law. In India the concept is that there is equality
before the law and equal protection of laws. Any legal wrong committed by any
person would be punished in a similar manner. The law adjudicated in the
ordinary courts of law applies to all the people with equal force. In public
service also the doctrine of equality is accepted. The suits for breach of
contract against the state government officials, public servants can be filed
in the ordinary courts of law by the public.

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.”

Critical Analysis

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.

 

 

 

 

 

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

9 (1990) 2 SCC 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