This article is written by Shraileen Kaur, a student of ICFAI University, Dehradun. In this article, the author discusses in detail about the definition, history, scope, concept, significance, and application of the rule of law along with its status at the national and international levels.
This article has been published by Sneha Mahawar.
“Democracy only has substance if there is the rule of law. That is if people believe that the votes are going to be counted, and they are counted. If they believe that there is a judiciary out there that will make sense of things if there is some challenge. If there is no rule of law, people will be afraid to vote the way they want to vote.”
- Timothy D. Snyder
Nowadays, the Rule of Law is a novel language of the population i.e., ‘Lingua Franca’. It is the idea of the dominance of law over other variables which is generated on a global level. It represents the aspirations and desire of an awakened democratic society to unite the level of independence without which rule becomes oppression.
In its most basic interpretation, the idea of the Rule of Law is the bedrock on which the present democratic system is built and strives to sustain. The notion of Rule of Law refers to a geographical territory that is administered by laws as well as regulations rather than unauthorised or unlawful processing by the men. The Rule of Law is among the most important elements in a list of modern political ideas reflecting ethical perspectives on a global level.
In a nutshell, the Rule of Law is an inalienable characteristic of democracies around the world. It facilitates effective administration that lends everlasting worth to the Constitution. This theory is based on natural justice and is a traditional framework that makes a compelling argument for the Rule of Law.
As a result, India’s second Prime Minister Lal Bahadur Shastri when asked about the significance of rule of law, asserted that – “The Rule of Law ought to be respected with the goal that the basic structure of our democracy is maintained and further reinforced”.
What is rule of law
The principle of the Rule of Law is a key component of modern civil society. As the phrase suggests, the rule of law is the rule of statutes, regulations, and other rules. It refrains from the arbitrary actions of men. It is to be noted that, rule of law in no way signifies any ‘law’ or any ‘rule’ rather it is a doctrine of moral administration of a state with political and social justice. It strives to maintain an ‘optimum balance of power’ between the two strata of social structure i.e. The rulers and the ruled. The Rule of Law establishes an equilibrium between the rights of the individuals and the duties of the state. The idea of rule of law is based on the principles of liberty, fair treatment, due process, equity, equality, and transparency.
The Rule of Law, like many other theories, is a highly detailed and evolving theory that defies precise definition. The expression ‘Rule of Law’ has been used to distinguish itself from the expression ‘Rule of Men’ which involves arbitrary actions by individuals. The values of sovereignty, equal opportunity, indiscrimination, brotherhood, tolerance, and equity are built on the rule of law. In a broad sense, the term ‘rule of law’ is often used in two ways: formatically and ideologically.
Ideological Sense relates to the direct influence on the interaction which takes place between the citizens as well as with the authority, while Formatic Sense pertains to institutionalised authority as contrasted to one-man tyranny.
Definition of rule of law
Though the concept of Rule of Law is not such a concept that can be summarised in a definite number of words. Despite this, several renowned academicians, lawyers, institutions as well as scholars have tried to define the Rule of Law.
One of the renowned personalities in administrative law, Professor William Wade defined the Rule of Law as –
“The rule of law requires that the government should be subject to the law rather than the law subject to the government.”
According to Black’s law dictionary,
“Rule of Law is the supremacy of law in which decisions are made based on well-established principles or laws, with no discretionary involvement in the application of such principles or laws.”
The United Nations Secretary-General describes the rule of law as follows –
“A principle of governance in which all individuals, institutions, and entities, public and private, including the state, are held accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated, and are consistent with international human rights norms and standards.” It also calls for safeguards to ensure that the supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency are upheld.”
Other scholars have also defined the rule of law as ‘the symbol of ultimate authority. This authority is so powerful that no man, whatever the case may be, cannot override this authority. Explaining the scope and ambit of the rule of law, Lord Denning in the case of Gouriet v. Union of post office workers (1978) held that the law of the land is supreme which no man can dominate. Irrespective of the power or status an individual possesses, law of the land shall be above them and it shall prevail under all circumstances.
Distinguished Sociologist and Political Scientist, Max Weber defined the Rule of Law as the –
“Legal domination as an idea of the government of law rather than an idea of men.”
Despite several definitions of Rule of Law, one cannot deny the fact that each of the above definitions is in itself incomplete. There are multiple loopholes in these definitions.
Across several constitutions around the world, the Rule of Law is considered the ‘Principle of Stimulation’ as it stimulates life to the laws mentioned in the constitution.
Rule of law implies that everyone, including the authority and its representatives, as well as individuals, should follow the law. In case of any violation of such law, the violator irrespective of the status, caste, creed, or other attributes shall be punished following the provisions of the concerned constitution.
The Doctrine of Rule of Law has also been referred to as ‘supremacy of law’. This signifies that where the rule of law exists, no one can be considered to be above the law; even the powers and conduct of the executive organ of the government must be governed by the law. Even the one making the law i.e., Legislature is also not above the law. All the legislators are expected to work in accordance with the laws mentioned in the constitution.
In a democratic institution, the rule of law places an obligation on all individuals to abide by the law, and the legislation itself must be just. It should not be arbitrary or tyrannical.
The ultimate aim of the rule of law, like some other constitutional concepts, is to promote people’s fundamental rights and constitutional protections. The rule of law is a concept that ensures that the three organs of the government i.e., legislature, executive, and judiciary do not utilise the law of the territory or nation to subjugate or limit the freedoms guaranteed by the constitution of different countries.
The notion of rule of law has been somewhat enlarged in the Indian setting. The Supreme Court has, on several occasions, clearly articulated and highlighted the rule of law through its decisions in support of A.V. Dicey’s theory of rule of law. It is regarded as part of the Constitution of India. The Supreme Court has stated in several landmark judgments that the Rule of Law comes under the basic structure of the Constitution of India and as such, it cannot be abolished or modified even by the Parliament. The preamble affirmed the ideas of the Constitution regarding liberty, equality, and fraternity. Even if the goal is to defend and secure peace and order, the rule of law dictates that no one shall be subjected to harsh, uncivilized, or discriminating treatment.
Origin and history of rule of law
The rule of law is the outcome of the struggle and hardship faced by generations since time immemorial for recognition of their basic rights. The phrase ‘Rule of Law’ has been derived from the French phrase ‘le Principe de legalite’ which means the principle of legality.
The origin of the Rule of Law can be traced back to the 13th century A.D. It was during the 13th century that Henry de Bracton, a judge in the reign of Henry III stated during the hearing of one of the cases that – ‘The King is not supreme. He is subjected to the almighty and the law. The king is subjected to the law because it is due to the law only that he is made a king.’
Although Judge Henry did not explicitly use the phrase ‘Rule of Law’, he highlighted the essence of the principle of rule of law.
In modern times, the credit for originating the concept of rule of law has been given to Edward Coke. He reinstated the words of Judge Henry and said that the King must be under God and the law. He further reaffirmed the supremacy of law over the sense of superiority of the executive.
Initially, several Greek philosophers such as Aristotle, Plato, and Cicero are considered to be the proponents of the Principle of the Rule of Law. For instance, advocating the Rule of Law, Plato in his book ‘Complete works of Plato’ wrote that –
“The collapse of the state is not far where the law is made subjective to the authorities but the states where the law is considered supreme all the blessings of the god fall on such a state and it flourishes through all times.”
As per a distinguished Greek scholar, Aristotle – The rule of law is the system of regulations that are inherent in the natural setting of the social structure prevailing in the society.
Rule of law in England
With the signing up of the Magna Carta in 1215 by King John, the rule of law began in England. When the Magna Carta of 1215 was signed, the monarchical form of government prevailing in then England conveyed its approval to be under the law, thereby making law – the ultimate supreme.
However, in England, the principle of Rule of Law took a new twist when the disagreement arose between the Parliament and the Monarchical system in the quest for more powers. Both the Parliament and the Monarch were struggling to attain the status of ultimate authority. In the end, the Parliament turned out to be the winner. The parliament was declared supreme over the monarchy. As a result, several laws were made by the parliament which governed as well as limited the power of the monarchy. This incident is considered the actual beginning of the rule of law in England as the executive organs of the government were now subject to the laws made by the Parliament.
Rule of Law in the United States of America
In the United States of America, the credit for introducing the doctrine of rule of law is given to the lawyers of the Constitution who are known as Paine in America. In 1776, Paine introduced a theory that stated that any sovereign country should have law as its king, America, as a sovereign nation, views Law to be the king.
The concept of Rule of Law was further developed by Albert Venn Dicey, a distinguished constitutional lawyer from England. He wrote a book known as ‘Introduction to the study of the law of the Constitution’ wherein he discussed in detail the concept of the Rule of Law. This book by A. V. Dicey is considered one of the phenomenal expressions of what exactly the concept of Rule of Law entails. In this book, he also discussed the powers which are expected to be exercised by different organs of the government in accordance with the provisions mentioned in the constitution.
According to A. V. Dicey, the rule of law comprises numerous fundamental principles which act as a guiding light in the proper exercise of the authority in a democratic system by different institutions such as legislators, law enforcement agencies, administrative officers, etc. All the rules, regulations, policies, and actions should be held in accordance with the law and are subject to judicial review.
Characteristics of rule of law
The doctrine of rule of law comprises several characteristics which are as follows:
- The Rule of Law explicitly condemns arbitrary actions by men. The foundation of the Rule of Law is safeguarded when authorities are not permitted to govern as per their inclinations and eccentricities while practising their authority.
- No one can be prosecuted or severely punished under the concept of the Rule of Law unless and until he has violated the laws.
- As per the Rule of Law, everybody is equal before the law. No one is above the law. Law does not change itself depending on the person before the law. Rich, poor, white, or black plays no role in the implementation of law and it provides justice to everyone irrespective of their caste, creed, status, gender, etc.
- The Rule of Law is a fundamental basis of most democracies around the world because it is pervasive in its applicability and has been a component of most judicial systems around the globe.
- As per the doctrine of Rule of Law, an individual could only be penalised if he is accused of a violation of any law and that accusation is proven by an autonomous entity, such as a court.
Basic principles of rule of law
The doctrine of rule of law comprises several basic principles. Some of them are as follows:
- Supremacy of Law. Law is above everyone irrespective of an individual’s rank, status or position.
- Whims and Fancies play no role in a state where rule of law prevails. All the actions of the legislature and the executive are held in accordance with laws.
- No person shall suffer due to the arbitrariness of another. One can be punished only by the procedure established by law and for the violation of such law.
- The absence of arbitrariness and discretionary decision-making is the heart and soul of the Rule of Law.
- The rule of law entails equality before the law and equal protection of the law.
- There are powers provided to people holding specific authority. Such power shall be exercised keeping in mind the limitations and boundaries that are set by the law itself.
- Law provides protection and justice against any tyrannical action taken by the executive.
- The judiciary is the preserver as well as the protector of the rule of law. It is meant to be independent and free from biases.
- For every action taken by the executive, just procedure should be followed, and fair treatment should be provided to all the individuals.
- A speedy trial is the basic component of rule of law. It entails ‘Justice delayed is justice denied’.
Exceptions to rule of law
The rule of law mandates both authorities and people to be answerable to the law, which is of indisputable utility in advanced democratic nations. To meet the demands of legitimate government, a wide range of exceptions have been inserted under Dicey’s theory of rule of law. Nonetheless, even after introducing numerous exceptions, the fundamental concepts of the rule of law are protected and reinforced.
In India, dicey’s theory of rule of law cannot be claimed to be strictly observed; various exceptions are given by the Indian Constitution as well as other legislation. Some of these exceptions are as follows:
- One of the fundamental exceptions to the theory of rule of law is the presence of broad discretionary powers provided to the executive organ of the government. Under the constitution of India, the president, as well as the governor of all the states, have been provided with broad discretionary powers in connection to several matters enshrined under three lists of the constitution.
- According to Article 72 and Article 161 concerning the president of India and the governor of the states respectively, they have the power to grant pardons, reprieves, respite, or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.
- According to Article 85 of the Indian Constitution,
(1) The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
(2) The President may from time to time —
(a) prorogue the Houses or either House;
(b) dissolve the House of the People.
- On the other hand, the governor of the state has the power to reserve the bill for consideration sent by state assemblies under Article 200 of the Constitution. Also, the governor has a discretionary power under the Constitution of India to send the report of state to the president for declaration of state emergency under Article 356 of the Constitution of India.
- Police officers, who are components of the executive organ of the government, have broad powers of arrest without even a warrant in cases of cognizable offences. In India, criminal courts have broad discretionary powers in imposing punishments.
- Article 14 of the Constitution of India emphasises equality before the law. However, it does not mean that the powers and privileges provided to the ordinary citizens of a country can be the same as that of public servants. Public servants like administrative officers, police officials, municipal authorities, and other such officials have been provided with certain privileges and immunities for better functioning of the system. Ordinary citizens of a country have been deprived of such powers.
- According to Article 361 of the Indian Constitution, the President of India or the governors of the states shall not be answerable under any court of law regarding the discharge of duties under the position held by the individual.
- Also, as per the Constitution, no proceedings shall be instituted against the President or Governor of state regarding any criminal accusation while he is in office.
- Under the constitution, no civil proceedings can be instituted against the President or Governor of a state in which relief can be claimed except after the expiration of a 2-month notice that is served on him.
- According to international law, visiting heads of government of the foreign state, chiefs of government, politicians, bureaucrats, and foreign dignitaries who are deployed in the foreign state are not subject to the laws of local courts while performing their authorised activities.
A.V. Dicey’s theory of rule of law
Albert Venn Dicey, a Britain-based constitutional jurist, is given the credit for propounding the concept of rule of law which was originally introduced by Sir Edward Coke. In 1885, Dicey in his book – ‘The Law of the Constitution’ enumerated the concept of Rule of Law which made a differentiation between the law of administration and the rule of law.
He gave several real-life examples to explain his theory. He stated that the essence of rule of law is equality and equal treatment. He took the instance of the person in power, say, the Prime Minister, and an ordinary citizen of a country working in a 9 to 5 job. He said that in a state where rule of law prevails both the prime minister as well as an ordinary citizen of a country working in a 9 to 5 job shall be treated equally irrespective of the position they are holding.
Hence, the same laws should be enforced for everybody, there should be no distinction under the rule of law based on certain defined variables. The rule of law advocates the supremacy of law. A.V Dicey proposed three postulates of Rule of Law, which are as follows:
- Supremacy of Law
- Equality before the Law
- The predominance of legal spirit
Postulates of rule of law
Supremacy of Law
It is the first postulate of Dicey’s theory of rule of law. It indicates that the law is supreme over all individuals. It also includes the individuals who are making, administering, or executing the laws. As per the words of Dicey, the rule of law is constituted by absolute supremacy of the laws in contrast to the tyrannical power exercised by the government. In brief, an individual must only be penalised for a specific violation of the laws, and not for something else. The individual must not be prosecuted by the state just on the ground of its unilateral arbitrary will. One can only be punished in accordance with established legislation.
Furthermore, Dicey claimed that personal discretion can have no place where the rule of law is supreme. Discretion, he believes, is linked to arbitrary nature. According to Dicey, whenever a decision is taken through personal discretion, there is ample opportunity for the state’s arbitrary nature as well as discretionary control to undermine the fundamental liberty of the individuals.
Equality before Law
The second postulate of Dicey’s theory of Rule of Law is Equality before law. It states that every individual, regardless of status or rank, is subject to ordinary laws of the land as well as the jurisdiction of the ordinary court, not any special court. All the special courts offering competence under special laws, in his opinion, are a danger to the values of equality. As a result, he believes that all individuals should be governed under the same code of norms and values and be legally challenged by the very same civil courts.
Even the Indian Constitution states the second pillar of Dicey’s theory of rule of law. Under Article 14 of the Constitution of India, it is stated that –
Equality before Law – “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
The predominance of the legal spirit
The third postulate of Dicey’s theory of Rule of Law is the predominance of legal spirit. As per Dicey, for the rule of law to prevail, there has to be an enforcement institution, which he recognised in the court system. He felt that because the courts are the actual enforcers of the rule of law, they should be devoid of bias and extraneous intervention. The autonomy of the judicial system is thus a critical component for the functioning of the rule of law. He claimed that the institutions of law, rather than the codified constitution, are the supreme guardians for the protection of the fundamental rights of the individuals.
Dicey’s theory of Rule of Law has been criticised from numerous perspectives, but the main premise articulated by him is that authority is derived from law. It must also be employed in accordance with the law. In simple terms, Dicey’s concern in his theory of the rule of law is on the elimination of arbitrary and discretionary decision-making by people in authority, avoidance of misuse of power, equal treatment under the law, and protection under the law for fundamental rights, and these values remain meaningful and pertinent in every constitutional democracy even today.
Criticism of Dicey’s theory of rule of law
A. V. Dicey’s theory of rule of law has been appealing to the nineteenth-century individuality thoughts. However, it has also been the recipient of critical assessment. Several academic researchers and jurists have claimed that Dicey’s conclusions and assertions contain several fallacious arguments. Some of the criticism faced by Dicey’s theory of rule of law are as follows –
Wade and Forsyth
They argue that even in England, there was no absolute equality of law since the Monarch was granted several exemptions under the doctrine of Rex Non-Potest Peccare which stated that ‘The King can do no wrong as he is a son of God, and he cannot be prosecuted.’ Dicey was reprimanded for casting a blind eye to the King’s privilege and claiming equality before the law which is a crucial assumption of the rule of law to prevail in England.
William Paton stated that the constitution of the United Kingdom was the consequence of political struggle rather than logical inferences from the Rule of Law.
Dicey, on the other side, argued that the Rule of Law was considered during the drafting of the constitution, which is the reason there existed a Preamble. William Paton was highly opposed to this assertion and contended –
“These are undoubtedly the characteristics of the past and are not logical deductions from the rule of law. For law may have a varying content; it may protect the subject against despotism or give the most ruthless power to a tyrant. It is not enough for the democrat to demand a rule of law–everything depends on the nature of that law. Every legal order which functions as a rule of law; applies to the Nazi state as well as a democracy.”
William Ivor Jennings
He challenged each of Dicey’s three proposed postulates of the Rule of Law which he mentioned in his book.
The initial interpretation assigned to the Rule of Law has been the supremacy of law, i.e., law as contrasted to arbitrary power, in order to rule against the presence of broad discretionary authorities on the side of the government. However, Dicey made no distinction between arbitrary and discretionary powers. The legislative authority of the government was also employed at the pleasure of the concerned individuals in power.
Moreover, Dicey emphasised that every man is subject to the same legal rules of the land, which are implemented in ordinary courts. Ivor Jennings directed the contemplation to the growing tendency of placing adjudicatory powers in administrative agencies and commissions, as well as the privilege granted to public servants in the performance of their duties.
Lastly, Dicey claims that the basic tenets of the constitution of England are the product of conventional laws of the nation, which means that they are the consequence of legal pronouncements. Jennings called this an internally inconsistent assertion because Dicey has limited his reasoning to only specific constitutional freedom such as free speech. In actuality, the most essential components that make up the British Constitution were not established by judges.
Rule of law in India
The notion of the Rule of Law can be ascribed back to the Hindu scriptures in India. Its roots can also be detected in sagas and epics such as the Ramayana and Mahabharata, and also the Ten Commandments, the Dharma Chakra, as well as other fundamental sacred writings. There have been no writings in contemporary days that expressly examine or acknowledge the theory of Rule of Law. The Rule of Law is considered to be incorporated in numerous clauses of the Indian Constitution. The founders of the Constitution were not just acquainted with Dicey’s postulates of Rule of Law, but also with their application in British India.
Rule of law and Constitution of India
The Constitution of India is the guiding principle of the nation, from which all other laws acquire their legitimacy, making all other laws subordinate to it and following the postulates of the Rule of Law outlined by the Indian Constitution.
Furthermore, Article 13(1) specifies that every law passed by the legislature must be in accordance with the provisions of the Constitution, or it will be considered unconstitutional. As a result, any new law must be consistent with the requirements of the Constitution. Even the Preamble of the Constitution of India includes the words justice, sovereignty, and equality, which are unambiguous indicators of a just and fair government with no discrepancy amongst the masses regardless of their social status.
Dicey’s enumeration of equality before the law is included under Article 14 of the Indian Constitution, which establishes the idea of equality before the law and equal protection under the law. The right to life and personal liberty, which is a fundamental human right, is also enshrined in the constitution for all citizens.
The word ‘rule of law’ has no set formulation in the Indian constitution. However, Courts in India use it in a plethora of judgments. In India, the proverb ‘The King can do no wrong’ does not apply, as all public institutions are subject to the jurisdiction of common law courts and the same sets of laws. The Indian constitution is the supreme law of the land, superseding the 3 organs of the government i.e., the Judiciary, the Legislature, and the Executive. These three governmental organs must act in accordance with the principles enshrined in the constitution of India.
Rule of law and the judicial system of India
The judiciary has consistently worked to uphold the Rule of Law and has had equal backing from citizens and the state by adhering to the legislation as laid down by the legislature and enforced by the courts. Though there have been numerous occasions where the citizens have engaged in violence against the Parliamentary act or any judicial proceedings or doing actions contrary to law.
Along with the provisions of the constitution, the judgments given by several courts and tribunals have played a prominent role in the interpretation and advancement of the doctrine of rule of law in India.
It has been opined by several distinguished jurists of India that the Constitution of India is founded on the Principle of the Rule of Law.
During the hearing of Suman Gupta and others v. State of Jammu and Kashmir and others in the Supreme Court, Justice R. S. Pathak stated that –
“Rule of Law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason.”
Court judgments have been critical in countering any arbitrary nature on the behalf of a nation. The Supreme Court ruled in A.K. Kraipak v. Union of India (1970) that our welfare system is governed as well as regulated by the Rule of Law. In Maneka Gandhi v. Union of India (1978), the Supreme Court ascertained that the government’s arbitrary exercise of power would violate people’s rights. The Supreme Court interpreted Article 14 of the Indian Constitution as well as widened its scope in the case of E.P. Royappa v. State of Tamil Nadu (1973). The Apex Court stated that this article added a new meaning to the rule of law, and it was regarded as a safeguard against arbitrariness.
In a subsequent decision, the Supreme Court observed that the Rule of Law, as enshrined in Article 14 of the Constitution, is a basic feature of the Indian Constitution and thus cannot be amended, revoked, or modified even by a constitutional amendment under Article 368 of the Constitution. In accordance with the third postulate of the Rule of Law principle, India has a strong judicial system that checks other organs of government while carrying out work independently.
In the landmark case of Indira Gandhi v. Raj Narain, the Apex Court stated that the doctrine of Rule of Law enshrined under Article 14 of the Constitution of India forms the ‘Basic Structure’ of this Constitution. It asserts that even an amendment under Article 368 of the Indian Constitution cannot destroy this legal provision.
The constitutional validity of Articles 323A and Article 323B of the Indian Constitution has been challenged in Chandra Kumar v. Union of India (1997) on the grounds that it is contrary to the spirit of the law because it exempts the jurisdiction of the Supreme Court under Article 32 and the High Court under Article 226 of the Indian Constitution in matters tried by the Central Administrative Tribunals under same provisions. The Court declared the judiciary’s independence to be a part of the basic structure, and it also overturned the amendment to Article 323A of the Constitution. In a later case, the Supreme Court ruled that disputes over the legality of the government’s actions will be made by judges who already are distinct from the Executive. As a result, the ultra vires or arbitrary acts of the government are checked.
The Habeas Corpus case was among the most significant in terms of the Rule of Law. The question before the Supreme Court was whether there is another repository of the rule of law in India besides Article 21 of the constitution. The majority’s decision on this question was negative, but Justice H.R. Khanna issued a dissenting opinion in which he stated that even in the absence of Article 21 in the Constitution, the state has no power to deprive a person of freedom even without the authority of law.
Application of rule of law in India
Theoretical Application of rule of law in India
Indians accepted the prevalent legal system of justice delivery, which has its origins in British jurisprudence and is based on the Rule of Law. Dicey famously stated that the Englishman does not require administrative law or any form of written laws that keep checks on the government, but that the Rule of Law and natural law are sufficient to verify the absence of the executive’s arbitrary decision-making. While India accepts and continues to follow the theory of natural law, there have been formal and written laws in place to ensure compliance.
From time to time, the Apex Court has upheld this framework of natural justice and rule of law through numerous judgments. Some of them are as follows –
Chief Settlement Commissioner, Punjab v. Om Prakash (1968)
In this case, the apex court opined 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.”
Secretary, State of Karnataka and others v. Uma Devi and others (2006)
In this case, issues are raised regarding equality in public employment. During the hearing of the case, the court observed that –
“Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution.”
Practical application of rule of law in India
Critics have frequently claimed that the concept of Rule of Law in India is merely a theoretical concept without any practical application. Though it can be outrightly rejected that abuse of power is prevalent in society, which is reaffirmed according to 2012 World Justice Project data, India ranks well enough on the responsiveness of administration and socially progressive control mechanisms, India ranks 37th of the 97 nations sampled worldwide. However, the rule of law which looks good on paper is often not followed in practice. India performs poorly in terms of procedural efficiency. The degrading rank of India in numerous surveys reaffirm the same. Recently, in the category of corruption, security and order, India slipped from the rank of 83rd to 96th rank (Corruption Perception Index, 2020).
In addition to the challenges of abuse of power in India, there is also the issue of obsolete legislation that is still in effect. India’s laws do not include a ‘setting sun’ provision which refers to a legal provision which stipulates that unless the legislature expressly decides to renew it, a government programme, agency, or statute will end automatically on a specific date. After freedom, the Indian Independence Act stated that all laws in effect under the British colonists would continue to survive under the new regime except if expressly repealed by the national assembly.
While this provided the country with a strong legal structure, avoiding civil unrest in the fallout of independence, most of this legislation was formulated to fulfil the necessities of the time and is difficult to interpret in the present circumstances. In an effort to understand the provisions, this creates uncertainty and unending lawsuits.
While these issues persist, it is worth noting that the constitutional framework has provided sufficient safeguards to protect that the Rule of Law will always exist. The action of the judges in understanding the constitution is among the most significant factors leading to the upkeep of the Rule of Law.
However, apart from the legal judgement, the constitutional framework itself ensures the preservation of the rule of law through the establishment of monitoring authorities. While there have been innumerable violations exposed in recent years, for instance, dictatorial discretion of a civil servant to refrain an individual from practising his right to education. it is important to note that these violations have been exposed and the national judicial framework has been activated against them.
Status of rule of law on international level
The concept of rule of law is considered one of the basic dimensions on which the governance and administration of a nation can be judged. Internationally, there are several rankings and research that consider the rule of law while analysing, studying, and ranking the nations. The concept of rule of law has been propounded at the international level through several treaties, agreements, conferences, and incentives and initiatives by distinguished international institutions. Some of these initiatives are as follows –
- The rule of law has been embraced as the cornerstone of the nations where rights and duties are honoured by the human rights treaties. In the Vienna World Conference on Human Rights, 1993 a recommendation was made concerning the rule of law stating – “The United Nations should provide financial support upon request to a nation’s initiative in reforming judicial institutions, including training and education of judicial officers and security forces in human rights, and any other professional class and activity relevant to better functioning of the rule of law.”
- The concept of rule of law has long been regarded and endorsed as a way of accomplishing economic prosperity. The World Bank has mentioned that the rule of law is a crucial component because economic progress is dependent to some extent on countries’ optimism and adherence to social norms.
- Emerging economies have embraced and encouraged the rule of law. The 2005 World Summit Outcome Document recognizes that democratic accountability and the rule of law at the international level are critical for achieving major objectives such as sustainable economic development, environmental sustainability, and the abolition of food insecurity.
- Recently, the United Nations Security Council has emphasised the rule of law as a method of resolving conflict and maintaining global peace. Even the European Union has encouraged the rule of law as crucial for economic progress, particularly in light of globalisation.
- At the 2005 United Nations World Summit, Participating Countries unanimously acknowledged the pervasive importance of complying with and incorporating the rule of law at both the home and abroad and reinforced their pledge to maintain the rule of law.
Considering the concept of rule of law, it can be deduced that because of the vibrancy innate in the theory itself, the Rule of Law has advanced at a rapid pace since its outset. This progress can be attributed to the various laws enacted by parliament as well as the innumerable court rulings.
According to the rule of law, the people must be influenced by proper conduct rather than choices taken arbitrarily by the ruling elites. It is critical to remember that the laws that are created should be broad and specific and that they should be enforced equally by all citizens. The essential feature of constitutionalism is the legal constraint on authorities. Under the idea of constitutionalism, ruling classes are not above the law; government powers are divided into legislation passed by one body and administered by another, and judicial independence exists to guarantee laws.
However, despite all of the evolution that the principle has undergone, when examined in the reference to India, the Rule of Law does prevail, but it cannot be said to be strictly followed. The rule of law has not produced the desired results in Indian society.
A few instances of how the judicial system has established the rule of law and guaranteed justice include the emergence of new pathways for seeking remedial measures for violations of human rights through the filing of PIL petitions. Hence, the proper working of all the organs of the government is essential along with public coordination for the proper functioning of rule of law.
Frequently Asked Questions
- What are the four significant attributes of the concept of Rule of Law?
The four significant attributes of the concept of Rule of Law are as follows –
- Limited Government Powers
- Fundamental Rights
- Civil Justice
- Regulatory Enforcement Agencies
- What is the major difference between the rule of law and the rule by law?
Rule by law means that decisions are imposed on citizens, whereas Rule of Law means that the supreme rulemaking authority of the land regulates the unrestricted concentration of power.
- What is the difference between the rule of men and the rule of law?
The use of governmental power arbitrarily for personal benefits at the expense of others is referred to as the rule of men. The rule of law, on the other hand, means that there are concise, rational, and effective laws that are persistently implemented across the general public.
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