This article is written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of this article has discussed in detail the concept of rule of law, its application in India and in the US constitution, the principles of the rule of law and the article further discusses the stance of rule of law in modern society and finally the exceptions to rule of law.
The term rule of law is derived from a French phrase – ‘La Principe de Legality’ which means- The Principle of Legality. The concept of rule of law refers to the government which is based on principles of law and not of men. Rule of law acts as a building block for the formation of the democratic society. The primary concept which the rule of law puts forth is- The state is governed not by the rulers or elected representatives of the people but by the law. The country which adopts and follows the principle of rule of law is the one in which the Grundnorm(the basic constitution of the country) or the core law from which all the other laws derive their authority is the supreme authority of the state.
The monarch or the republic of a state is governed by the law which is derived from the Grundnorm, and the same even places restrictions on the use of power by them. The concept of rule of law enshrines the principle that the ‘King is not the Law, but the Law is the king’.
Origin of concept of rule of Law
The origin of rule of law can be dated back to the Greek Era of Aristotle and Plato. Hence it can be said that rule of law is as old as civilisation and over the period of time, transforming notions of the society have changed the perception and interpretation of rule of law by various authors.
The German customary law which laid down the principle that the king is always under the law has been considered as the independent source of rule of law in the medieval period. John Locke’s proposition on the rule of law stated as follows- A separation between the Legislative and Executive, though not Judiciary. This was done by him in order to assure that the government acts in accordance with the duly enacted standing laws. John Locke finally held that the legislation should be constituted by the majority vote.
Principles of Rule of Law
A K Dicey on observing the UK model of Rule of Law laid down the following Principles:
Supremacy of Law
The notion of supremacy of law embodies under its ambit the principle that the law should not be prepared from the perspective of a particular individual. The primary understanding of the rule of law is that the law rules over all people, and this includes even the people administering it. As dicey postulated, the law presupposes that there is an absence of broad flexible authority in the rules so that they cannot create their own laws but must govern according to the established laws. Those laws should be in such a manner that they cannot be easily changed. Stable laws are a prerequisite of the certainty and confidence which additional form an essential part of individual freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in a very detailed manner.
Equality before Law
The first discussed principle states that, supremacy of law ensures the cheques and balances over the government which makes and administers such laws. The second principle that is the principle of equality before law ensures that the law is applied in a just manner.
It further provides that the law cannot in any way discriminate between people regarding race, sex or religion. Article 14 of the Indian Constitution incorporates the principle of equality under its ambit. In addition to this, the Universal Declaration of Human Rights includes the principle of Equality under its preamble and also under Article 7.
Predominance of Legal Spirit
By considering the predominance of legal spirit, Dicey wanted to signify the authority that enforces the rule of law, that is the courts. As the courts are ones which enforce the rule of law, it becomes very important on their part to be impartial and free from all the external influence. Hence, the independence of the judiciary becomes a very significant aspect in the rule of law.
Rule of Law in Modern Sense
Due to the changing times and evolution of society in modern times, it can be said that Dicey’s rule of law cannot be accepted in totality. The concept of rule of law in the modern sense was developed by the international commission of jurists known as Delhi Declaration, 1959. According to this formulation-
By the way of rule of law, the dignity of a man as an individual in the society should be upheld. And in order to attain this, it not only requires certain political and civil rights but also the creation of such political and civil rights. In addition to this, there should also be ample scope for the creation of certain educational, economic and cultural conditions which are essential for the overall development of an individual’s personality.
Federalist Kim Davis in order to explain the ideology of rule of law put forth 7 principle meanings of the term rule of law which are-
- Due process of law and fairness
- Elimination of discretion
- Law and Order
- Fixed Rules
- Judicial review of Administrative Actions
- Preference for judges and ordinary courts of law to executive authorities and administrative tribunals.
- Natural Law, or taking into account the various principles of natural justice.
Features of Rule of Law
- Those in the exercise of power are themselves constrained by law while making use of that power. There are restrictions placed on them with regard to the use of such power and they are not allowed to act according to their whims and fancies. This finally leads to the upholding of principle of rule of law.
- No person can be punished or made to suffer unless and until the person has committed a breach of law.
- Each and every individual is equal before the law, and by this, it means that the law cannot be based on a class of persons.
- Rule of law is universal in its application, it has also been the part and parcel of most of the legal systems in the world. Hence, due of this characteristic of the rule of law, it becomes an important bedrock of most of the democracies.
- If a person is alleged of committing a crime and is charged with wrong then such a charge should be proved by an independent tribunal like that of a court, and only then can the person be punished.
Rule of Law under the Indian Constitution
India adopted the common law system of justice which had its origins in the British jurisprudence. The constitution of India intended India to be governed by rule of law. It further provided that the constitution is the supreme authority of land and the organs of the constitution, that is the legislature and executive would derive their powers from the constitution. Any law which is made by the constitution should be in conformity with the constitution and failure to do so would result in the said law being invalid.
Judiciary and Rule of Law
It can be said that the Indian judiciary has played an instrumental role in the shaping of the rule of law in India, as it adopted a dynamic and a positive approach while interpreting the constitutional provisions of India.
In the case of A D M Jabalpur v. Shivkant Shukla, the issue which arose was in the context of suspension of article 14, 21 and 22 during the proclamation of emergency. The answer of the majority of the bench was however negative to the question of rule of law. But Justice H R Khanna dissented from the majority opinion and held that – ‘Even in the absence of article 21 of the constitution the state has no power to deprive a person of life liberty without the authority of law’. The onus of the issue was that the concept of rule of law is accepted everywhere by giving prominence to the liberty of an individual and in addition, it also seeks to maintain a balance between the opposing notion of individual liberty and public order.
In another landmark case of Bachhan Singh v. State of Punjab, it was held that the rule of law has three basic assumptions which are:
- Lawmaking should always be in the hands of the democratically elected legislature.
- The democratically elected legislature should possess unfettered legislative power.
- There should always be an existence of independent judiciary which should be capable of protecting the citizens from the atrocities of executive and legislative powers.
In the renowned case of Kesavananda Bharati v. State of Kerala, it was held by the Supreme Court that the rule of law is a very essential part of the basic structure of the constitution.
Practical application of Rule of law in India
Political theorists have always set forth the notion that rule of law in India is merely a theory and has no practical application as such. The reasons behind this is the problems faced by India due to the existence of rampant corruption in lawmaking and justice delivery system. In addition to this, there also exists the problem of presence of age-old laws in India. The post-independence era provided that all laws existing in India under the colonial rule would continue to exist even post-independence, under the new system unless the same is explicitly revoked by the Parliament.
While such problems continue to exist in the Indian subcontinent, it becomes important for one to note that the constitutional mechanism of India has provided enough safeguards to ensure that the rule of law will continue to persist in some way.
In the much-discussed case of Maneka Gandhi v. Union of India, the Supreme Court laid down that no one should be deprived of his life and personal liberty except procedure established by the law under article 21 of the Indian Constitution. Article 21 requires the following conditions before a person is deprived of his personal liberty and life-
- That there must be a valid law.
- The law must provide a procedure.
- The procedure must be just, fair and reasonable.
- The law must satisfy the requirement of Article 14 and 19.
Rule of Law under the US Constitution
America inherited the rule of law from medieval England, which was expressed as ‘A government of Laws, not of men’. The federal constitution of 1787, changed the concept of constitutional government on a larger scale by way of introduction of “Principle of Constitutional Supremacy”. Article VI of the American Constitution declares that ‘Constitution shall be the supreme law of the land’.
In the renowned case of Marbury v. Madison, Justice John Marshall held that an act of Congress contrary to the constitution was not a law. It should be further noted that the American Constitution and the power of judicial review are the extensions of rule of law.
Basic Principles of the American Constitution
Federalism, Separation of Powers and Rule of Law are the heart of the American Constitution. All of these collectively contribute to the achievement of liberty, equality, order and justice.
- The constitution is based on the belief that the legitimate constitution is the one with originates with people and controlled by the people. This principle has even been described in the preamble which proclaims that the Constitution is ordained and established not by the government but by the people.
- Te UN constitution requires the government in all respects to be politically responsible both to the state and the people who are governed by it.
- The constitution is a legal and not just political restriction on the government. Political supremacy and identification of all laws with the legislature are thus hostile to the American Constitution as it declares that the constitution shall be the supreme law of law.
Exceptions to Rule of Law
For the modern democratic societies, the rule of law requires both the rulers and the ruled to be accountable to the law, which is of unquestionable value.
- The liberals who focus their attention on ways of protecting liberty in some way and further avert threats to it often see rule of law as an overarching source of security.
- Nonetheless, there exists a disagreement among the liberals over what exactly counts as the faithful application of the term of rule of law and when the concept of rule of law is pinned down how exactly to accomplish it.
- It can be stated that rule of law is not a faithful description of any state of affairs but a complex idea, which becomes even more complex when it comes to the realization of the same.
- The independence of judiciary clearly becomes a problem if that independence is misused for the privilege of such judicial personnel or allowing of unchallenged interpretation of laws, hence it can be said that such things act in contrary to the principles which the rule of law tries to enshrine.
- Critics of the strictly formal conception of rule of law argue that too much attention to legal process creates significant vices of its own in the form of exaggerated legal theories and it further tends to neglect the political or real-world dimensions of legal conflicts.
- Giving excessive importance to the law and the legal proceedings may act as a disadvantage if a policy proposal or its official mandate is given a green signal even when there is opposition to the same by many people.
- Some writers have expressed that the increasing domain of judges and lawyers and their encroachment in the areas which were previously left to the politicians and electorate, results in the loss of much that is politically and democratically considered to be valuable.
Rule of law has many perks in it and all that it requires to entail the fruits of rule of law is to enforce it and bring it to practice in a rightful manner. The inception of rule of law dates back to the very beginning of civilisation and hence, it can be said that rule of law is a very old concept which has moreover gone through changes with the evolution of the society. The article even provides the application of rule of law in the US constitution and if at all it varies from that applicable in India.
Further, there are even challenges posed to the concept of rule of law, which has been put forth by many political thinkers and writers in their distinct ways which are important to be analysed for the better understanding of the concept of rule of law.