This article is written by Aishwarya Majumdar and Pranjal Chaturvedi, students of Sharda University School of Law.
Table of Contents
Introduction
The term Rule of Law is derived from French phrase “La Principe De Legality” (the principle of legality) and this very doctrine is ascribed to British Jurist and Great Constitutional theorist A.V Dicey, The writing of Dicey in 1885 on British Constitution gave three kindred of Rule of Law, Absence of Arbitrary Power, Equality before Law, and Individual Liberties, while he cautiously ventured through Constitution of USA, where individual liberties are not product of Judge made concept, that constitution containing just seven Articles, he found in accordance of principle of rule of law, because very core of concept was getting satisfied on scale of components of principles, with change in time, in modern world there are many more noble values and principle added, as of Judicial Review, Habeas Corpus, no arbitrary form of government, so on and so forth, ultimately these values, also somewhat and somewhere come in ambit and strengthen three fundamental principles, laid down by Dicey, but taking all modern concept in consideration separately and classifying them independently, it could be brought into umbrella of just three components, Legal Supremacy, Legal Equality and Legal Certainty.
Principles considered by Dicey under the ambit of Rule of Law
Absence of Arbitrary Power – It is to be taken as, no man is above law, and law is supreme regarding man, there is to be a similar mechanism for every individual, and no person could be punished on fiat and whimsical wishes of government where there is discretion, on that place arbitrariness may emerge, discretion gives power and power corrupts, but the application of Absence of Arbitrary Power, limits unbridled discretionary power of government or statutory authority, at a time when Dicey was investigating pulse of British Constitution on golden principles, that he derived, found constitution in accordance of this very rule of “Rule of law”.
The second considered principle by Dicey was Equality before Law, as per this every man will be equal in eyes of law, and will be treated equally before the law; whosoever he is doesn’t matter on what designation he is ascribed or what political/social/economic power he enjoys. There is special mention of this in articles – 14, 15and 16 of the Indian Constitution. In India, there are some codified exceptions to this rule, as Article – 361 of the Constitution, in which protection is granted to the President, Governors and Rajpramukhs, indeed this is an exception, but to run, state machinery smoothly.
The third principle considered is Individual Liberties, principle of British Constitution and principle of individual liberties in Britain are judge made concept, It is peculiar to Britain, where as there are large number of other countries, in which individual liberty is not a result of judicial exercise, it is ensured in fundamental law book of land itself, that following fundamental rights will not be violated accept, due process of law or procedure established by law, as Constitution of United States of America, Japan and India, In context of India, life and liberty of individual, is of paramount importance and constitution protects and preserves and ensures the same, “no person shall be deprived of his life and personal liberty accept procedure established by law”, what was concerning Dicey was not, individual liberty is result of Written Constitution or output of judicial exercise, for him what matters is, is individual liberty recognized, considered, cherished, protected and preserved, this is why, Dicey while examining USA Constitution, found that in accordance of his derived principles, rule of law, taking example of value of individual liberty, in recent in case of Arnab Goswami, “Indian Journalist and Editor in Chief of news network Republic TV”, 2 judges bench of Hon’ble Apex Court, comprising J. Indira Banerjee and J. D.Y Chandrachud protects individual liberty of accused Arnab Goswami, by granting interim bail and Justice D.Y Chandrachud observed that “If we don’t interfere in this case today, we will walk on the path of destruction”.
Dicey has set three principles, but as society and democracy evolves and evolves continuously, apart from all settled and traced rules, there are some other existing and later evolved rules/principles, which is a product of spirit to strengthen, individual liberty as “no arbitrary form of government”, the government is expected to be democratically elected, which is supposed to be by the people and for the people, working in accordance and consonance of fundamental law of land, “Constitution”.
Supreme Court cases contributing in strengthening the Rule of Law
In India this was very well observed in landmark, unfortunate, dark but historic judgment in “ADM Jabalpur V. S. Shukla, 1976” (Habeas Corpus case) during the emergency era, the case which was there, but should not have been, contrary to the majority opinion of four Judges, Justice Khanna delivered very articulate dissenting, judgment, and observed that “rule of law is the antithesis of arbitrariness ……. Rule of law is now an accepted norm of all civilized societies, everywhere it is identified by the liberties of individuals.
In another landmark and historic judgment of “Bacchan Singh V State of Punjab, 1982”, Justice P.N Bhagwati, emphasized that rule of law excludes, arbitrariness and unreasonableness, further suggested, to make laws it is important to have, democratic form of government, but the power of the legislature is not to be unfettered, and there should always be independent judiciary to protect citizens from excessive powers of legislature and executive,
Another derivation of rule of law is Judicial Review, the doctrine of a judicial review originally originated from the United States of America; It was not expressly given even in American Constitution, holding seven Articles, but was developed by the Honourable Supreme Court of America in a landmark and historic judgment of Marbury v Madison. In Indian Constitutional observation, power of judicial review is ascribed pre-independence and pre-constitution, Supreme Court is the successor of federal court, which was exercising the power of judicial review, after Independence of India or India turning Indian Democratic-Republic, Supreme Court inherited the great tradition, established by Federal Courts, by virtue of Constitution of India, power of Judicial Review is derived from Article 32 of Indian Constitution to honourable Supreme Court and by Article 226 of Indian Constitution to honourable High Court.
In the landmark and historic judgment of L Chandra Kumar v. Union of India, 1973 seven judges, constitutional bench of honourable apex court held judicial review as basic structure of constitution, and stated that “power of judicial review over legislative action vested in High Court under Article 226 and in Supreme Court in Article 32 in the constitution and is integral and essential feature of the constitution constituting part of its basic structure, judicial review not only looks and determines constitutionality of law but also looks and takes care of validity of administrative action, another offshoot of rule of law is upholding of individual liberties, Indian constitution ensures, protects, preserves and cherishes the individual liberties, in Part 3 of Indian Constitution, which is of paramount importance and looked very cautiously, another emerged and important feature of rule of law is habeas corpus, (writ issued to produce/bring body before the court, in common law system) In India power to issue certain writ is with High Court under Article 226 & Article 32 with Supreme Court, and one of such five writ is habeas corpus, referring to particular habeas corpus, A.V. dicey said “Habeas Corpus is equal to hundred constitutional articles, securing individual liberty”. Generally, this writ is issued when, law enforcing agency has wrongfully or arbitrarily detained any person, for what so motive, but detention is against the spirit of the constitution or not in accordance of law or is contrary to Part 3 of Indian Constitution and violative of Individual Liberty, hence also against rule of law.
In DC Wadhva v State of Bihar, 1987, the Supreme Court used rule of law to decry state government which was too frequently using its ordinance making power as a substitute of legislation by the legislature.
In Yusuf Khan V Manohar Joshi, the Supreme Court has laid down proposition that, it is the duty of the state, to preserve and protect the laws, and constitution, and that it may not permit any violent act, which may negate, rule of law.
Codification of rule of law
Combining all, modern concepts and principles, it would be better to codify and classify “rule of law” in just three phrases:
- Legal Supremacy;
- Legal Equality;
- Legal Clarity.
A) Legal Supremacy: The principle is, society should be regulated by an authoritative set of rules and regulations, instead of might as a right or whimsical wish of an individual and moving towards a state of nature, where bigger fish eats little, ones.
B) Legal Equality: Legal Equality means the law is to be applied equally on all; even monarch, executive head, or elected head of state is not above law, or beyond the grasp or holding of law.
Steps towards legal supremacy and legal equality were taken, by the several states of Greek, initially during the archaic period during 750-500 BCE., by bringing magistrate under subordination of written laws, further in Athens as a result of the reform of Solon, of 594/3 BCE, legal protection of the law was clearly established, several of solon’s reformed aimed at, the remedy of law to be available to every citizen, doesn’t matter how so ever low, downtrodden a citizen is, how poor and infirm his condition is, but has accesses to the benefit and remedy of law. What is important and to be noted is, establishment of Legal Equality and Legal Supremacy is even before democracy, but despite traces are found pre-democratic era, clear reorganization are made post-democratic rule.
In the context of India, in P Sambhumurthy v State of Andhra Pradesh, 1987, the Supreme Court has declared the provision of executive interference, with tribunal justice, unconstitutional.
C) Legal Certainty: This means law should be clear in meaning and understanding, assessable, approachable, and predictable; it is within reach of common man, not just turns, the bread of some, for aristocrat, privileged or nobleman.
Traces of legal supremacy and legal equality and it’s clear establishment has been, regarded, but most debatable and controversial among all three is legal clarity, It is highly debatable among scholars, constitutionalist, constitutional philosophers, that to what extent, legal clarity is possible, Even in the modern era there is plenty of disagreement between, how far legal clarity is possible and attainable, as in civil law tradition of western-Europe the principle of legal clarity is not accepted, but is believed to be achieved on high degree, as Jams Maxeiner states, legal intermediacy may govern – Americans, but for Europeans, it is not acceptable, legal certainty – not legal intermediacy is guiding principle for Europeans.
Above two (a) and (b) are straightforward, but (c) has a very wide ambit, which generally turns matter of intense debate and discussion. It is very easily understandable, that disputes are to be resolved peacefully, within the ambit of law, and law is to be might not individual, organization or institution, the law will be equally applicable on law, whosoever he is, whatsoever power he enjoys and howsoever important he is or his designation is, is of no meaning and use, in the ambit of law and ultimately law is to be certain and clear in meaning.
The Constitution of India, by its very nature, protects and cherishes, individual liberties and promotes rule of law, through many of its provision, as the government is to be democratically elected, through adult suffrage, separation of judiciary from the executive, the supremacy of fundamental rights, Supreme Court by being the custodian of Indian Constitution, separation of power between, legislature, judiciary, executive, judicial review, power to issue writs with High Court and Supreme Court, under Article 226 and Article 32, the extraordinary power of doing complete justice and lot more.
Democratic form of government (of the people, by the people, for the people) can only sustain, thrive and prosper with the protection and strengthening spirit of rule of law, this is that golden principle which is essentially required in any civilized and mature democracy and direly required in diverse democracy like India, what we can understand from “rule of law” is rule of law not of man, Dicey’s rule of law, hold three components, ABSENCE OF ARBITRARY POWER, EQUALITY BEFORE LAW and INDIVIDUAL LIBERTIES, and further rules, principles and doctrines have emerged later, as separate judiciary, power of judicial review in hands of judiciary, power to issue writ of habeas corpus, mechanism to secure individual liberty and freedom, guarantee of basic rights, as it is widely addressed in Part – 3 of Constitution of India “it will not be regarded as rule of law or when there is no proper mechanism to get laws in accordance of rule of law, it can’t be said its rule of law”, combining all this, newly emerged and recently developed principles, we can categorize, just in three, legal supremacy, legal certainty and legal equality is core of rule of law in modern society, but even this will not remain static, rule of law is like democracy, enhances, enriches and standardizes its values and principles and will add more components, in future, as civilization and civilizational values, enhances and grows with time.
Conclusion
The Rule of law is one of the most widely used term in political discourse same as democracy, it is god of constitutionality “omnipresent” some find it relevant and some scholars also find it of no use, because it is so widely used with such different meaning but it imbibes golden values and principles, basic tenant of Dicey’s rule of law is power is to be derived from law and is to be exercised strictly in accordance of law, the term rule of law has no particular articulate connotation, even though Indian Judiciary, gives very high importance to this and uses very repeatedly, the broad emphasis or sense of rule of law is absence of any centre of unchecked, arbitrary power, even if frequent government intervention in ordinary pursuit of citizens, is on increase may give rise to arbitrariness of government, which will be contrary to rule of law, informed citizenry is strongest foundation laying under and with pillars of democracy, they are the subjects and they are the authority as well, in tussle between supremacy of state and limitation of state, via constitutional principles, it’s only citizens “we the people” who will have to ensure government is upholding pre-set golden benchmarks and endeavour to strengthen, spirit of rule of law, Indian Constitution framers have addressed these golden principles very sincerely and cautiously, hence have given these values upper hand, but again ultimate is “source of constitution”, The thing, essentially to be remembered is, words of Dr. Baba Sahib Ambedkar, which he spoke in final speech in the Constituent Assembly –“however a good constitution may be, it is sure to turn out bad because those who are called to work is it, happen to be bad lot, however bad a constitution may be it may turn out to be good, if those who are called to work It happened to be good a lot”
References
2 Dicey, A.V., – “INTRODUCTION TO THE STUDY OF LAW OF THE CONSTITUTION” – Chapter – 4.
3 Constitution of India, 1950, Article-21,
4 https://www.barandbench.com/news/supreme-court-grants-bail-to-arnab-goswami
5 AIR, 1976 SC 1207
6 1982, 2 SCC 1324
7 (1997) 3 SCC 261.
8 Ibid
9 https://lsa.umich.edu/content/dam/classics-assets/classicsdocuments/FORSDYKE/ForsdykeRuleOfLaw.pdf
10AIR, 1987 SC 63.
11 AIR 1987, SC 579
12 Maxiner- 2007: 543.cf.pp544-5.
13 Abraham Lincoln
14 Shklar, 1987 with response to Waldron 2002.
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