“Where Constitution. Rule of law is the basis

“Where the law issubject to some other authority and has none of its own, the collapse of thestate, in my view, is not far off; but if law is the master of the governmentand the government is its slave, then the situation is full of promise and men enjoyall the blessings that the gods shower on a state”. –         PlatoThe rule of law isancient ideal. It was discussed by the philosopher such as Aristotle or Platoin 350 BC.

Aristotle wrote that law should govern and those in powers areservants of law. It is derived from the French principle ‘la principe de legalite’ (the principle of legality). It means thatthe government is governed by principles of law and not of men. This rule makeslaw the supreme. The doctrine of Rule of Law is one of the basic principles ofEnglish constitution. It is well accepted in U.

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S as well as IndianConstitution. Rule of law is the basis of administrative law.The doctrine of rule oflaw was originated by Sir Edward Coke. Later it was developed by A.

V Dicey andincluded three distinct pillars:(i) Supremacy of Law It means that peopleshould govern according to the law. Their power or duties cannot exceed theboundaries of legal framework. Anything they do should be justifies in law. InIndia our constitution was supreme and anything which violates the basicprinciple of it is void.(ii) Equality beforeLawIt’s not only importantthat law should be supreme but also that it should be just and fair. The lawshould not discriminate against race, sex, age or domicile. It is importantthat law should be applied in just manner. In our constitution this concept iscodified in Article 14.

(iii) Predominance ofLegal SpiritIn including this as arequirement for the rule of law, Dicey’s belief was that it was insufficient tosimply include the above two principles in the constitution of the country orin its other laws for the state to be one in which the principles of rule oflaw are being followed. There must be an enforcing authority and Dicey believedthat this authority could be found in the courts. The courts are the enforcersof the rule of law and they must be both impartial and free from all externalinfluences.

Thus the freedom of the judicial becomes an important pillar to therule of law.In modern parlance Ruleof Law has come to be understood as a system which has safe guards againstofficial arbitrariness, prevents anarchy and allows people to plan the legalconsequences of their actions.  Theoretical aspect ofRule of LawIndia adopted commonlaw system with some change. In England, there is no written constitution orany form of written administrative law. Dicey believed that natural law andrule of law is enough to remove executive arbitrariness. However, we adoptedthis system but have formal written constitution in which rule of law iscodified to ensure compliance.

In India constitutionis supreme. The executives and legislatives derive their authority from theconstitution. Any law which is not in conformity with the constitution is void.

This is stated in Article 13. Article 14 ensures equality before law. Nobodyshould be discriminated on the basis of caste, sex, religion etc. Ourconstitution includes separation of power between three wings i.e. legislative,executive and judiciary. The legislative and executive cannot influencejudiciary.

This ensures independent judiciary which is one of the pillars ofDicey’s rule of law. In Unionof India v. President, Madras Bar Association1,the Supreme Court held that “Rule of Lawhas several facets, one of which is that disputes of citizens will be decidedby Judges who are independent and impartial; and that disputes as to legalityof acts of the Government will be decided by Judges who are independent of theExecutive.”  Article 21guarantees Right to life and liberty. It checks the arbitrary power ofexecutive and makes sure that liberty of a person is not curtailed except inaccordance of law. The constitution 1stamendment 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. Theword ‘law’ under article 13 included legislative action not the constitutionalamendment. Thus, constitutional amendment is valid even if it abridges with thefundamental right. In Sajjan Singh vState of Rajasthan3,the Supreme Court again held the majority judgment given in earlier case4and concluded that amendment of constitution means amendment of all provisionsof the constitution.However, these twojudgements were overruled in Golaknathvs 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 theSupreme Court by majority overruled the decision given in Golaknath’s case andheld that Parliament has wide powers of amending the Constitution and itextends to all the Articles, but the amending power is not unlimited and doesnot include the power to destroy the basic feature or framework of theConstitution. There are implied limitations on the power of amendment underArticle 368. Within these limits Parliament can amend every Article of theConstitution. Thus, Rule of law prevailed.

In various otherjudgements 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 lawexcept article 21. This was during the emergency when article 14, 19 and 22were suspended. The answer of the majority of the bench was in negative for thequestion of law.

However Justice H.R. Khanna dissented from the majorityopinion and observed that: “Indeed, even without Article 21 in theConstitution, the state has no energy to deny a man of his life and freedomwithout the specialist of law.

Without such holiness of life and freedom, therefinement between an untamed society and one represented by laws would stop tohave any significance… Rule of Law is presently the acknowledged standard ofevery single edified society”.                   Practical Applicationof Rule of Law in IndiaThe application of Ruleof Law in India can be traced in the constitution very clearly. There is separation of power betweenlegislature, executive and judiciary. The law is made by the parliament who inturn is the representatives of people. The law making process is transparentand no one is above law. The judiciaryis impartial and independent from other organs of government.

The part III of ourconstitution 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 inquirywhether there is govern of law with the exception of in Article 21. This wasbeing referred to as requirement of Article 14, 21 and 22 were suspended amidthe decree of crisis. The appropriate response was then in adverse in any case,Justice H.R Khanna influenced disagreeingsentiment and said “To even without Article 21 in the Constitution, thestate has no energy to deny a man of his life and freedom without thespecialist of law. Without such holiness of life and freedom, the refinementbetween a rebellious society and one represented by laws would stop to have anysignificance… “Another importantaspect of Rule of Law is that there can be no exercise of arbitrary power bygovernment. The government has to act within the framework of rules and regulationwhich restricts the abuse of power.

In SomRaj v. State of Haryana9,Supreme Court said that absence of arbitrary power is one of the hallmarks ofRule of Law. However, it is true that complete inequality and arbitrariness cannotbe eradicated. In the same vein it is true that the concept of rule of law isdeveloped and prevalent in most of the common law countries such as Indiaitself. In my view, the rule of law is a sort of a test of administrative orderat a given time. Article 14 saysthat no person shall be deprived of his life or personal liberties exceptaccording to procedure established by law.

The government officials and thegovernment itself are not above the law. In India the concept is that there is equalitybefore the law and equal protection of laws. Any legal wrong committed by anyperson would be punished in a similar manner. The law adjudicated in theordinary courts of law applies to all the people with equal force. In publicservice also the doctrine of equality is accepted.

The suits for breach ofcontract against the state government officials, public servants can be filedin the ordinary courts of law by the public.In Chief settlement Comm Punjab v. Om Prakash10,it was observed by the Supreme court that, “Inour constitutional system, the central and most characteristic feature is theconcept of rule of law which means, in the present context, the authority oflaw courts to test all administrative action by the standard of legality. Theadministrative or executive action that does not meet the standard will be setaside if the aggrieved person brings the matter into notice.

“India has modernisedthe concept of rule of law and made it supreme. There are numerous cases wherethe 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 toamend 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 ofbasic structure of our constitution.

It acts as a deterrent against arbitrarypower of government or its officials. Thus, the case saw a high degree ofjudicial activism, and lead into a new era of growing horizons of fundamental rightsand Article 21 in particular.IndiraGandhi v. Raj Narain13,the case that shaped the Indian politics showcases the same principle.

Here under39th amendment, a law was passed which provided immunities tocertain class of person from judicial review (Article 329-A). The Supreme Courtinvalidated the article 329-A on the ground that it was violating the basic structureof constitution and it was beyond the power of parliament to amend in suchcases.In the case of Sukhdev v. Bhagatram14Mathew 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 Lawof the Constitution” or the definition given by Hayek in his “Streetto Serfdom” and “Constitution of freedom” or the composition putforward by Harry Jones in his “The Rule of Law and the WelfareState”, there is, as pointed out by Mathew, J., in his article on”The Welfare State, Rule of Law and Natural Justice” in “Populargovernment, Equality and Freedom,” “significant understanding is injuristic suspected that the immense motivation behind the control of lawthought is the security of the person against discretionary exercise of energy,wherever it is found”. It is in reality incomprehensible that in a votebased system administered by the rule of law the official Government or any ofits officers ought to have self-assertive control over the interests of theperson. Each activity of the official Government must be educated with reasonand ought to be free from assertion. That is the very substance of the rule oflaw and its exposed negligible prerequisite. Also, to the use of this standardit has no effect whether the activity of the power includes fondness of someprivilege or refusal of some benefit.In Secretary State of Karnataka and Ors.

v. Umadevi and Ors15a Constitution Bench of this Court has laid down the law in the followingterms:”Subsequently,plainly adherence to the administer of fairness in broad daylight work is afundamental element of our Constitution and since the lead of law is the basisof our Constitution, a court would positively be handicapped from passing arequest maintaining an infringement of Article 14 or in requesting thedisregarding of the need to conform to the prerequisites of Article 14 readwith Article 16 of the Constitution.”Critical AnalysisWe have seen how ruleof law has been the basis for various judgements in our country.

However, it istrue that there are numerous cases where this concept has been departed. The foundationof rule of law lies in ‘Equality’, but there are some instances of inequalityin our constitution such as no case can be filed against diplomats, no criminalproceeding against the President or the Governor, legal immunities enjoyed by Memberof Parliament. Thus, it can be said that India does not follow this conceptfully. As it is said that law shoulddevelop with the changing society, it’s important that we plug the weakness presentin this doctrine. Critics have said that there has been no clear distinction between’arbitrary power’ and ‘discretionary power’. It has also been pointed out theDicey’s rule of law lacks to see the future as he cannot have imagined today’s needof discretionary power in the state.

Another aspect pointedout by the critics is that the Dicey’s concept of rule of law providesinsufficient individual and civil rights as it is more concerned with the dueprocess than the content of law.The Dicey’s idea ofcontrol of law has likewise been scrutinized. Law changes with time.

As thegeneral public advances, even the law of the nation ought to create. Some viewthe rule of law as nothing other than an apparatus of the capable to keep upbusiness as usual in the lawful framework. The general agreement is thatbusiness as usual, a long way from being impartial, serves to ensure thecapable to the detriment of the weakened.

This absence of non-partisanship inthe 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 isone’s humankind, not one’s status in the public eye that requires that laws befairly connected. More extraordinary faultfinders guarantee that “theliberal worldview has pulverized the run of law.” The method of reasoningbehind this announcement is that, thinking about the genuine condition of the world,many liken the rule of law with legitimateness.

Notwithstanding, this is animperfect condition as “legality essentially implies that there are lawsand says nothing in regards to the nature of those laws.” Hence, there arenumerous lacunas in the idea of manage of law which servers the reason ofnon-execution of the idea legitimately.     1 2 AIR 1951 SC 4553 AIR 1965 SC 8454 Shankari Prasad vs Union ofIndia (AIR 1951 SC 455)5 1967 AIR 16436 (1973) 4 SCC 227 AIR 1976 SC 12078 9 (1990) 2 SCC 653          10 1968 SCR (3) 65511 (1973) 4 SCC 2212 1978 AIR 59713 AIR 1975 SC 229914 AIR 1975 SC 133115 (2006) 4 SCC 1


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