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This article is written by Avishek Mehrotra, a second-year student of Symbiosis Law School, Pune.

Introduction and Background

The term “Rule of Law” is derived from the French phrase ‘La Principe de Legalite’ (the principle of legality) which refers to a government based on principles of law and justice as opposed to the arbitrariness of a ruler.  The concept of Rule of Law in its most fundamental sense is the foundation upon which modern democratic society is founded and seeks to establish. The principle of Rule of Law vests in a state that is governed by laws and not by the arbitrary actions of men. The Rule of Law is a crucial component in a list of items that make up contemporary political ideals; other items in this list include democracy, human rights, and the principles of the free-market economy.[1]

“Rule of Law symbolizes an enlightened civilized society’s efforts and quest to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes license.”[2]

Origin

The genesis of the Rule of Law can be dated back to the 13th century A.D. when Henry de Bracton, a judge in the reign of Henry III said that the King ought to be subject to God and law as it is the law which has made him King however, he did not use the phrase Rule of Law, therefore the credit of originating the concept of Rule of Law has been bestowed upon Edward Coke who said that the king must be under God and law and thus vindicated the supremacy of law over the pretensions of the executives.

But a detailed analysis of the concept of Rule of Law was done by Professor A.V. Dicey who in his book “Introduction to the Study of the Law of the Constitution” published in the year 1885 tried developing the concept of Rule of Law. According to Dicey no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land[3]. He advocated the fact that law is the supreme and not much discretionary powers should be vested in the executives as where there is too much concentration of power there is scope of arbitrariness i.e. misuse of power due to which the liberty is violated.

Content

Dicey’s theory of Rule of Law consists of three basic principles

(i) The supremacy of law– Dicey believed that Rule of Law stands for absolute supremacy of law. No person, irrespective of his position whether he is a common man or government authority is bound to obey the law. No one should be punished except for the breach of law and that the alleged offence is proved before the ordinary court following the due procedure.

(ii) Equality before law– It means the equal subjection of all class of people to the law of the land administered by the ordinary courts. No man is above the law and would be treated equally in the eyes of law irrespective of their pedestal in life.

(iii) The predominance of Legal Spirit– The phrase legal spirit refers to the spirit of justice. This concept advocates the principle that law should be according to justice and not vice-versa. He was against providing rights such as the right to personal liberty, freedom, etc. in the written constitution of the country. The constitution is not the source but the consequence of the rights of the individuals[4] thus these rights should be a result of the judicial decisions.

Criticism of Dicey’s Theory

Professor A. V. Dicey’s theory which was so acceptable to the penchant of nineteenth-century individualism, has been a subject of critical inquiry in later years. Several fallacies have been alleged by various academicians and theorists in the findings and claims made by A.V. Dicey:

  • W.Paton

He stated that the constitution of the UK as a result of political struggle and not a result of logical deductions from the Rule of Law[5]. Dicey on the other hand had stated that Rule of Law was in mind while framing the constitution of while framing the constitution and this was why there was a preamble UK and that is why there was a Preamble. This claim was vehemently opposed to by G.W. Paton in the words:

“These are undoubtedly the characteristics of the past and are not logical deductions from a 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.” [6]

  • Wade and Forsyth

They advocate that there was no equality of law in stricto sensu even in England as there were many immunities given to the King following the principle of Rex Non-Protest Peccare, ‘The King Can Do No Wrong’. Dicey was criticized for turning a blind eye to the immunity so provided to the King and stating the concept of equality before the law (which is indeed a major postulate of rule of law) as being existent in England.

  • W.I. Jennings

He criticized each of the three suggested meanings of Rule of Law as propounded by Dicey in his book. [7]

The first meaning allocated to the Rule of Law was the supremacy of law i.e. law as opposed to arbitrary power to exclude the existence of wide discretionary powers on the part of the government. However Dicey failed to distinguish between arbitrary and discretionary powers as even during Dicey’s period wide discretionary powers were vested in public authorities. The legislative power of the parliament also was exercised according to a discretion vested in the same.

Secondly, Dicey pointed out that every man is subjected to the ordinary laws of the realm enforced in ordinary tribunals. Here Dr. Jennings drew our attention to the increasing practice of vesting powers of adjudication in administrative tribunals and boards and the immunity given to the public officers in the exercise of their duties.

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Thirdly, Dicey says that the general principles of the constitution in England are the result of the ordinary laws of the land that is to say that they are a result of judicial decisions. Dr. Jennings termed this as being an overstatement because Dicey herein has concentrated his thinking to only special individual rights namely freedom of speech etc. Whereas in reality, the most important principles underlying the British Constitution are not judge-made at all. [8]

Development of Rule of Law in India

Constitutional provisions

In India, the concept of Rule of Law can be traced back to Upanishads. Its traces can also be found in the epics like Mahabharata and Ramayana, Ten Commandments, Dharma Chakra and other seminal documents. In modern times there are no drafts in which Rule of Law is directly discussed or mentioned. The Rule of Law as administered in India is interpreted to be embodied within several provisions of the Constitution. The framers of our Constitution were not only familiar with the postulates of Rule of Law as propounded by Dicey but also as modified by its action in British India. Constitution is the grundnorm of the country from which all other laws derive their authority, thus acting subservient to it and upholding the postulates of Rule of Law that is envisaged under the Constitution of India. Further Article 13(1) states that any law that is made by the legislature has to be made in conformity with the Constitution failing which it will be declared invalid. [9] Thus every law that is created has to be in line with the constitutional provisions. The Preamble to our constitution incorporates the word justice, liberty and equality which are a clear indicator of a just and fair system without any existent disparity between the masses irrespective of their stature in life. The equality before the law as enumerated by Dicey is incorporated in Article 14 of the Constitution of India which lays down the principle of equality before law and equal protection of laws[10]. The right to life and personal liberty which is the basic human right is also guaranteed to every person by the constitution[11]

Judicial Pronouncements

Apart from the constitutional provisions, the judicial decisions have also played a vital role in the understanding and development of Rule of Law in India. Rule of Law is regarded as a part of the basic structure of the Constitution or and, therefore, it cannot be abrogated or destroyed even by the Parliament.[12] Several jurists have opined that the Rule of Law is the basis upon which our constitution is founded. In one of the cases before the Supreme Court, Justice R.S. Pathak stated that:

It must be remembered that our entire constitutional system is founded on the 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.[13]

The judicial decisions have played an indispensable role to counter any arbitrariness on part of the state. In A.K. Kraipak V. Union of India[14] the Apex Court held that ours being a welfare State, it is regulated and controlled by the Rule of Law. In Maneka Gandhi v. Union of India[15], the court ensured that the exercise of power in an arbitrary manner by the government would not infringe the rights of the people.  In the E.P. Royappa v State of Tamil Nadu [16], Article 14 of the Constitution of India [17]was interpreted by the Supreme Court and its ambit was broadened. A new dimension was given to this article and it was considered as a guarantee against arbitrariness. The Apex Court in a subsequent judgment held that Rule of Law embodied in Article 14 of the Constitution is the “basic feature” of the Indian Constitution and hence it cannot be destroyed even by an amendment of the Constitution under Article 368 of the Constitution.[18]

In line with the third principle of Rule of Law, India has an independent judiciary that keeps a check on the other organs of governance while independently performing its functions. In L Chandra Kumar v Union of India [19]the constitutional validity of Article 323A [20]and 323B[21] was challenged on the ground that it is contrary to the spirit of constitution as it excludes the jurisdiction of Supreme Court under Article 32 [22]and High court under Article 226 [23]of the Constitution of India in matters that were tried by the Central Administrative Tribunal under the said provisions. The court declared the independence of the judiciary to be a part of the basic structure and further the court struck down the amendment to article 323A of the constitution. The Supreme Court in a subsequent case held that disputes as to legality of acts of the Government will be decided by Judges who are independent of the Executive.[24] And thus, keeping a check on the ultra vires or arbitrary acts of the Government.

The Habeas Corpus Case[25] was one of the most important cases with regard to the Rule of Law. The question before the Apex Court was regarding whether there is any repository of the Rule of Law in India apart from Article 21 [26] in the constitution. The decision of the majority was in negative with regards to this question however, Justice H.R. Khanna gave a dissenting opinion and observed that even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. 

Analysis

The framers of our constitution had embodied the Rule of Law in the conscience of our constitution. The three wings of the government work in coordination with each other for the establishment of Rule of Law through the system of checks and balances. The judiciary has worked efficiently towards the establishment of Rule of Law and has been equally supported by civilians and government by obeying the laws as laid down by the parliament and interpreted by the judiciary. Though there also have been several instances when the public has resorted to violence against an Act of Parliament or any Judicial pronouncement or doing acts contrary to law which according to their perception is not contrary to Law and Justice, resulting in situations where the principle of Rule of Law has just become a de jure concept while in de facto the Rule of Men has prevailed.

The malicious practice of honor killing is prevalent in the Indian society particularly in northern parts of the country. This practice includes the murder of a member of a family, due to the belief of  the perpetrators that the victim has brought shame or dishonour upon the family, by violating the principles of a community or a religion, usually for reasons such as divorcing or separating from their spouse or for engaging in inter-caste marriage. The decision in this regard is taken by an extra-constitutional body by the nomenclature of Khap Panchayat which engage in feudalistic activities have no compunction to commit such crimes which are offences under the Indian Penal Code, 1860. No heed is paid to the basic human right of “Right to life and liberty” as evident by the actions of the panchayat[27]. Choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognised in the Constitution under Article 19, and such a right is not expected to succumb to the concept of “class honour” or “group thinking”. It is because the sense of class honour has no legitimacy even if it is practised by the collective under some kind of a notion.[28]

Several guidelines have been laid down by the court to curb the practice but still there have been numerous instances of honour killing reported and the masses have largely turned a deaf ear to the decision of the Apex Court.

The Sabarimala case verdict throws light upon the discretion of men in abiding by the directions given by the Supreme Court only to the point if they are analogous to the belief they hold. The court had allowed women of menstruating age i.e. between 10-50 years to enter the temple premises for worship[29]. The Lord Ayappa temple has traditionally barred all women of menstruating age from entering into the shrine. After the verdict massive protest were carried out, there were also occurrences of violence against women who tried to enter the temple. The women were denied their constitutional right to worship and the principles of equality were violated even after the practice was declared as unconstitutional by the Apex Court.

Another evil practice pertinent in the society is that of mob lynching. Lynching, a form of violence in which a mob, under the pretext of administering justice without trial, executes a presumed offender, often after inflicting torture and corporal mutilation. The term lynch law refers to a self-constituted court that imposes sentence on a person without due process of law. Supreme Court described it as horrendous acts of mobocracy [30]and stated that “the law, is the mightiest sovereign in a civilized society[31] The majesty of law cannot be sullied simply because an individual or a group generate the attitude that they have been empowered by the principles set out in law to take its enforcement into their own hands and gradually become law unto themselves and punish the violator on their own assumption and in the manner in which they deem fit.[32] Usually people belonging to religious and caste-based minorities become the victim of this wicked practice. This practice is a present-day example of a lawless society where there is denial of basic human rights as well as fundamental rights.

Besides these, there is a plethora of other instances that are indicative of the adulteration of the indigenous principle.

Conclusion

Thus, on the basis of the aforementioned information it can be undeniably deduced that since its inception, the principle of Rule of Law owing to the dynamism inherent in the very concept itself has evolved at a brisk pace. This development can be accredited to the several laws laid down by the parliament and also through the numerous judicial pronouncements.

However, despite all the development that the concept has undergone, Rule of Law when analysed in the context of India does exist but it cannot be said to be followed in stricto sensu. Instances often come to light when following a particular law becomes subject to public convenience and they subscribe to such law only if it is in line with their perception of right and wrong and is in consonance with the ideologies that they uphold.

Endnotes

[1] Jeremy Waldron, The Concept and the Rule of Law, Vol. 43, Georgia Law Review,  (2008) available at  https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1028&context=lectures_pre_arch_lectures_sibley.

[2] Soli J. Sorabjee’s Lecture at Brandeis University, Massachusetts, April 14th 2010, available at http://www.brandeis.edu/programs/southasianstudies/pdfs/rule%20of%20law%20full%20text.pdf. Last seen on (23/09/2019).

[3] A.V. Dicey, Introduction to the study of the law of the constitution, (10th edition, 1985).

[4] A.V. Dicey, Introduction to the study of the law of the constitution, (10th edition, 1985).

[5] G.W. Paton, A Textbook of Jurisprudence, (4th edition 2004).

[6] G.W.Paton, A Textbook of Jurisprudence, 139, (4th edition 2004).

[7] W.I. Jennings, The Law and The Constitution (5th edition 1964).

[8] Edward I. Sykes, The Rule of Law in the modern world, W. Ivor Jennings the Law and The Constitution, Available at http://classic.austlii.edu.au/au/journals/ResJud/1938/12.pdf.

[9] Art. 13 (1), the Constitution of India.

[10] Art. 14, the Constitution of India.

[11] Art. 21, the Constitution of India.

[12] His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr, AIR 1973 SC 1461.

[13] Suman Gupta and Ors. Etc v. State of J & K and Ors, AIR 1983 SC 1235.

[14] A.K. Kraipak and Ors. Vs. Union of India, AIR 1970 SC 150.

[15] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[16] E.P. Royappa v State of Tamil Nadu and Anr, AIR 1974 SC 555.

[17] Art. 14, the Constitution of India.

[18] Smt. Indira Nehru Gandhi v. Shri Raj Narain, AIR 1975 SC 2299.

[19]L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.

[20] Art. 323A, the Constitution of India.

[21] Art. 323B, the Constitution of India.

[22] Art. 32, the Constitution of India.

[23] Art. 226, the Constitution of India.

[24] Union of India v. R Gandhi, (2007) 4 SCC 341.

[25] ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1283.

[26] Art. 21, the Constitution of India.

[27] Shakti Vahini v. Union of India (UOI) and Ors, AIR 2018 SC 1601.

[28] Asha Ranjan v. State of Bihar and Ors, (2017) 4 SCC 397.

[29] Indian Young Lawyers Association and Ors v. State of Kerala and Ors, (2017) 10 SCC 689.

[30] Tehseen S. Poonawalla v Union of India and ors, AIR 2018 SC 3354.

[31] Krishnamoorthy v. Sivakumar and Ors, AIR 2015 SC 1921.

[32] Shakti Vahini v. Union of India (UOI) and Ors, AIR 2018 SC 1601.


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1 COMMENT

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