Posted on: July 23, 2020 Posted by: Radhamani Saxena Comments: 0

Author: Shanu Sharma (L.LM 2019- 2021)
Co-Author: Dushyant Chauhan (B.A. LL.B 2015-2020)

Abstract

“A constitution enclosed after an opportunity fight or a fight for self-sufficiency is, like section, feeling reviewed in quietness. It is a severance from a prior time, a finish of constrained suzerainty and the setting up of one’s very own political intensity family. It lays on the affirmation of real brokenness, the difference in a people from the status of subjects to that of inhabitants, of a nation whose force is arranged in the people. This presentation of inconsistency we find in the Declaration going before the Preamble to the Indian Constitution. We set out to set up India into a sovereign dominant part rule socialist republic and starting there set out the targets which this republic expected to achieve. We molded our fight on liberal qualities and the standard of law. We excused eminent control regardless, not the parliamentary structure, which vivified the legislative issues and history of Britain and the British people’s fights against inside and out government.” ‘Rule of Law’ encapsulates the specific educating in inimitable nature of legitimate viewpoint which is law. Absolutely, is basic and key need to a prepared and created society? If an organization exhibits according to the standard of rule of law then individual opportunity and right can be made sure about in better way. The standard comprehended in the Rule of Law that authority must act under the law, and not by its own statement or fiat, is up ’til now a cardinal principle of the exclusively based law system. The authority is seen as not having any natural powers of its own yet the whole of its powers stream and ooze from the law, a rule which expect such a basic occupation in each and every notoriety based country of to-day.

 Keywords: Rule of Law, Principle, Equality, Liberty. Etc.

Introduction                                                       

The very basis of Rule of law is that the state is not only directed, by the ruler or by the ones who are nominated members by the people but on the very basis of Law. Whereby, the Rule of Law is the Grundnorm of the country, or the structure and main gist of the Law from which basically all the different laws derive their authority i.e. superiority of the State. The people nominated/ elected by the people are generally being governed by the law and also their powers are also being limited by it. Hence, the King or the dictator is not the law who we follow, but the law is the main king which we must follow. The quoted “Rule of law” is nowhere contemplated in our Indian Constitution but our Courts have given various judgments on behalf of the same.

For clarification, an online chase of the Supreme Court’s reportable choices passed on between 1 January 1950 and 1 January 2010 happened in 1,299 hits of the term ‘rule of law’. There is no vulnerability that the standard of law swarms the Constitution as an essential guideline. As a matter of fact, the Supreme Court has announced the standard of law to be one of the “fundamental highlights” of the Constitution[1], so this rule can’t be expelled even by an ensured change. As this Country Report will graph, the Indian beginning of the standard of law is both formal and significant. It is moreover seen as a crucial bit of good organization. Questions are anyway raised regarding how much the ensured assurance of the Rule of law matches with certifiable situation in India.

The doctrine of “Rule of Law” is set up for the people to follow and in need of the same it should be accepted by rules, relatively than the arbitrary decisions of the king or the Ruler. The characterized essential of the Constitutional mandate is their limitation on governance. Under our Constitutional mandate, the dictator is not above the law, but is governed by the law, division of administrative work, along with, where judiciary ensuring the work objectively. A well-established provisions of the constitution, majorly involves the protection of the lives and liberties of the citizens without infringing their rights.

Notion of Rule of Law

Rule of law certainly implies to the supremacy of Law, which is coordinated by the Rule of the Law and Rule of the men, which generally implicates that the ‘Law’ should be the one which prevails over the ‘men’ in our society.

Whereby, this conceptualization of the above statement was being used, to enumerate different things by different people which rather than creating peace to it creates enumerous confusions to its meaning.

Henceforth, the thought of Rule of Law is taken by the Greek philosophers named: Aristotle and Plato. As discussed earlier the concept Rule of Law ensures the government must be acting in their limitation mentioned by law, and therefore, it imposes check and balance to their functioning as well. Giving the practical effect to the same, Judicial Review is one of leading examples of Rule of Law. In the implementation of Law these four notions are neatly woven by our Constitution i.e. judicial review, separation of power, rule of law & constitutionalism.

As articulated by Aristotle “it is more proper that Law should govern than any one of the citizen. The Rule of law, argued, is preferable to that of any individual.” The principle of Aristotle was compared to the principle that ‘he who abides the God and reasons would alone Rule whereas, he who abides the man, who tends to an element of beast.

Instantly, the concept of Rule of Law is woven into a nitty tidy chain of duties and rights, accountability, independency of Judiciary, justice and fairness & this chain is nothing but as strong as it’s the only weakest link.

Gist of Rule of Law

The doctrine of “Rule of Law” is adopted from England where it tends to infers that no man is absconded by its rights and privileges by the arbitrary power of the court. The other meaning of the doctrines comprises to the fact that “no man is above law, everyone is equal before the law”. No citizen or any other person is subject to the arbitrary power of the law, whereby every person must follow the Law not the man. Law which is contemplated in the Article 13 of our Indian Constitution which suggests us the Law of Land and  to review the working to the same, Judicial review given to the courts for ensuring work to be done objectively and reasonably by the government.

However, enunciation “rule of law” contemplates a circumstance where everything must be as indicated by law. It is where there are genuine limits to regulatory attentiveness and certainly limitations are also being given in terms of the arbitrariness and protection also being given to the citizens.

Among many other famous scholar’s, Professor Dicey gave three elements to be followed:-

  1. The supremacy of the regular law which are opposed to the arbitrariness & wide discretionary power of the government to exercise.
  2. Equal subjection to all classes of people and equality before law on the Law of Land; and
  3. Through our common law tradition we have our ordinary law Constitution to be followed.
  • Supremacy of Law

Supremacy of Law which means that no one is above law, and no man can be punished except for a breach of Law. It is a phenomena which certainly means that, a protection to be given to the citizen or to the people from the wide arbitrary power of the government along with the exclusion of the discretionary power of them as well. ‘No man is above law’ is the statements is speaking its order by stating that no man even the nominated as well as the elected members of the government has to abide the Law of Land which means, equality before law. The law made must not be in subject to a particular person.

  • Equality before law

Equality before law or equal subjection to all classes to people” subjectively states in terms of the state governance or the people who governed, irrespective of their position. The criticism to the same started with the numerous cases. Which tends to include the exceptions for the:

During operation of emergency the enforcement of Article 14 may be suspended, the president & the governor are not answerable to Courts, M.P’s & MLA’s cannot be held liable for anything said within the house (Art.105-194), Ambassadors enjoys full immunity.

  • Predominance of Legal Spirit

Predominance of Legal spirit means the general principles of the constitution are the result of judicial decisions. According to Dicey, the whole point of the doctrine of Rule of Law is to provide protection to the citizens or the people from infringement to their ordinary rights, which are not enough. For example, if we trace it from England, these rights are vested to them by the judicial decisions of the court due to the unwritten constitution. The Courts are the guarantors of these rights to the citizens. Which creates a criticism to the doctrine of rule of law.

The whole point of making the Doctrine worthy was to exclude the discretionary powers from the court, because where there is power of discretion in hands of the courts, there is room for arbitrariness.

Hence, it is evident from the point being mentioned in the three elements that while when India adopted the Doctrine, it excludes the dominance of judicial decisions from the paper and adopted the 2 former elements i.e. the supremacy of law and Equality before Law.

Rule of Law under Indian Constitution

The Doctrine of Rule of Law has expanded to its extent till now. The case Indira Nehru Gandhi v. Raj Narayan which gives a landmark judgment that: Rule of Law is the “basic structure” of our constitution and cannot be vanished by our Parliament. It is also regarded as the principle of Natural justice. The Doctrine of Rule of law is the dominance of law over the man and therefore, every organ of the state which is established under our constitution is abide and regulated by the rule of the law. The foremost essential of the doctrine is the absentia of the arbitrary powers.

Free legal Aid for poor people and speedy trial is necessary, whereas the powers given to the authorities of executives must be construed in the limited sense, excluding the arbitrariness. The provisions made in the preservations of the law are:

  • Article 13

Where Part III states the Fundamental Rights guarantees to our citizens, on the other hand the the violation the same is invalid. The Indian Constitution is the very basis of our Supreme Laws made in conformity with the same.

  • Article 14

Article 14 of our Indian Constitution states us about the equality before Law and Equal protection before law to every person and within the territory of India. If state acts in special privilege to any person would be an arbitrary action by the state and the same would be against Article 14.

Various acts have been formed which categorized the authorized under those acts but those acts are also according to our Constitutional mandate, starting from the top of the hierarchy to the bottom.

The case of Indira Nehru Gandhi it was stated that the doctrine of Rule of Law is the basic structure of the constitution, it also mentioned that it cannot be destroyed by the amendment of Art 368 of our constitution..

Rule of Law and Indian judiciary

The rights provided to us by our constitution in Part III are the Fundamental rights is in itself is a restriction on the law making power of the Legislature. Which means our constitution is the only basic legal system of the country to follow.

The landmark case ADM Jabalpur v. Shivakant Shukla it is also known as Habeas Corpus case. And notable case in the Doctrine of Rule of Law. The question which was raised in case was in regards to Article 21 that: is there any other Rule of law apart from article 21? It was also in context to the proclamation of emergency where the certain provisions of the constitution were suspended Art 14, 21 and 22.

Majority of the bench denied for the question of law. In the case, Justice H.R. Khanna differ from the larger part share end and watched that “Even without Article 21 in the Constitution, the state has no ability to prevent a person from claiming his life and opportunity without the authority of law. Without such holiness of life and opportunity, the separation between an untamed society and one spoke to by laws would stop to have any significance… “

The second most essential element of the Dicey’s theory was contemplated in the series of case Som Raj v. state of Haryana in which it was held that the arbitrary power  hypothesize the doctrine of Rule of Law upon which generally, the whole of the constitutional network is depended.

In one of the landmark case of constitution Keshvananda Bharti v. state of Kerala it was held by the Supreme Court that the Doctrine Rule of Law is the basic structure of the important aspects and following the same Maneka Gandhi v. Union of India Supreme Court held that Article 14 strike down the arbitrariness of decisions.

In the circumstance of case Gadakh Yashwantrao Khankarrao v. Balasaheb Vikhe Patil it was laid down that was “If the standard of law must be spared as the essence of the dominant part runs arrangement of which flawlessness of races is a principal joining in, it is the commitment of the courts to esteem the verification and interpret the law in a manner which would sub serve this higher explanation and not even ambiguously energize affirmation, fundamentally less affirmance, of the falling constituent rules. For majority rule government to suffer, rule of law must win, and it is crucial that the best available men should be picked as people’s representatives for fitting organization of the country. This can be best cultivated through men of high great and good, values who win the choices on a positive vote obtained on their own authenticity and not by the negative vote of system of end reliant on relative terrible characteristics of the candidates.”

In the case of Secretary, State of Karnataka and Ors. V. Uma Devi the court has defined some hard limits in the going with terms: “Thusly, indisputably adherence to the standard of uniformity in open business is a fundamental component of our Constitution and since the standard of law is the focal point of our Constitution, a court would clearly be crippled from passing a solicitation keeping up an encroachment of Article 14 or in mentioning the dismissing of the need to follow the necessities of Article 14 read with Article 16 of the Constitution.”

Analysis and Conclusion

The Doctrine Rule of Law aims to conclude to the Supremacy of Law. The mandates and the rules being followed by the people and the court making efforts for the effective implementations of those rules has made a great achievement amongst most of it. The doctrine has contributed to the preservation as well as the protection of the rights of the citizens enumerated under the disguise of the provisions of the constitution as well as the Human Rights. The aim to provide the enjoyment of rights is still in progress in order to make a better world to live with peace and dignity.

The Justice being delivered by our judicial Authorities and the remedies provided for the violations of their rights are the intended results of the Doctrine. The propounded and the originator of the explicit concept of Doctrine of Rule of Law n aura has maintained in terms of the law and the king to be under God and the Law, whereby there is nothing above the law.

Footnotes

[1] Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2295

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