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A Critical study on Rule of law in Administrative judicial system (By-Prof.Dr.B.Rajeswari)
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A Critical study on Rule of law in
Administrative judicial system
Authored By-Prof.Dr.B.Rajeswari
Professor of law,
Chettinad School of Law
Chettinad Academy of Research
Education
Abstract :
The Rule of Law includes a variety of
principles of a proper and procedural character, addressing the method during
which a community is ruled. The formal principles concern the generality,
clarity, publicity, stability, and prospectivity of the norms that govern a
society. The procedural principles concern the processes by which these norms
are unit administered, and also the institutions—like courts And an freelance judiciary that their
administration needs. On some accounts, the Rule of Law conjointly includes
bound substantive ideals sort of a presumption of liberty and respect for
personal property rights. The main aim was to know about the judicial power
which went beyond the rule of law and about the misuse of delegated power.
Where Ares to spread awareness about the Rule of law in Indian Judiciary and
to create impact on people about the
Rule of law and to analyse Rule of law efficiency in India. The research has
followed Empirical research with a convenient sampling method. The sample size
covered by the researcher is 204. The result observed from the analysis of the
study is that there are so many cases which use the rule of law and also most
of the people are not aware of the Rule of law in the Administrative judicial
system.
Key words:
Rule of law, procedural character,
administration, judiciary, India.
Introduction :
Evolution of
Rule of Law may be a dynamic concept. It can't be taken to mean that it's a
hard and fast principle of law from which there can't be any departure. The
concept Rule of Law has been discussed by the International Commission of
Jurists met in 1959 at New Delhi .Rule of Law is to safeguard and advance the
political and civil rights of the individual during a free society.The doctrine
of rule of law wasn't known to ancient and medieval India. The king was the
fountain head of justice and therefore the protector of all laws. He was
considered to be above the law.Government
initiative of rule of law The Rule of Law is applied far and wide and
various features of the Constitution show its acceptance. The Constitution of
India contains various features that show the appliance of the Rule of Law
within the Indian context a number of them are Preamble, Fundamental Rights,
DPSPs, Doctrine of basic Structure, Universal Adult Franchise and review .
Part- III and every one Fundamental Rights come under the Rule of Law, which
are enforceable by Law and one can approach the supreme court or the Supreme
Court under Article 32& 226 on their violation. The proper to Freedom of
Speech and Expression forms a part of the elemental Rights and it's also
recognized as a person's Right by the Universal Declaration of Human Rights and
therefore the International Covenant on Civil and Political Rights. Factors affecting the rule of law is
that the independence of judiciary clearly becomes a drag if that independence
is misused for the privilege of such judicial personnel or admitting of
unchallenged interpretation of laws, hence it are often 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 an
excessive amount of attention to legal process creates significant vices of its
own within the sort of exaggerated legal theories and it further tends to
neglect the political or real-world dimensions of legal conflicts.current trends are India's overall rule
of law score decreased by but 1% during this year's Index. At 69th place out of
128 countries and jurisdictions worldwide, India remained within the same
position for global rank. the newest encounter of the gangster Vikas Dubey has
sparked the talk regarding rule of law and has also raised questions on the
exercise of violence by the institutions of the state. Criticisms are coming
from across the state especially from the opposition that such an act is
against the basics of law, that is, against the rule of law. The comparison to Nigeria The events of
the previous couple of years in Nigeria reflect an internally induced major
attack on the constitution, the deflation of the rule of law and entrenchment
of impunity.Nigeria has had a hallow experience with both democracy and
therefore the rule of law. While the immediate
post colonial period can generally be
described as a period during which democracy and therefore the rule of law
generally thrived, the seizure of the country’s political space by the
military, in effect, bade goodbye to the fine points of elected government and
due process of law of law, heralding the years of the locust, characterized by
autocracy, arbitrariness, executive recklessness and impunity. Legal aspects of rule of law when we
look into In “Chief Settlement Commr; punjab v. Om Prakash”, it had been
discovered by the Supreme Court that, “In our constitutional system, the
central and most characteristic feature is that the idea of rule of law which
suggests, within the gift context, the authority of law courts to check all
body action by the quality of lawfulness. the {executive} or executive action
that doesn't meet the quality are put aside if the aggrieved person brings the
matter into notice.” within the case of “Satwant Singh Sawhney v. D
Ramarathanana” the Supreme Court has control that each government action, if it
operates to the unfairness of a person, should be supported by some legislative
authority. The main aim of the research is to create awareness and impact among
the people about the applicability of rule of law.
Objective :
? To know about the judicial power
which went beyond the rule of law.
? To get to know about the misuse of
delegated power.
? To spread awareness about the Rule of
law in Indian Judiciary.
? To create impact on people about the
Rule of law.
? To analyse Rule of law efficiency in
India.
Review of literature :
Jerg Gutmann and Stefan Voigt (2015)
Recently, several Muslim countries
have ratified new constitutions. In this paper, we ask two questions: first,
whether Muslim influence has a discernible impact on the content of such
constitutions and, second, whether it has an impact on constitutional reality.
More precisely, we are interested in the consequences of Islam for institutions
securing the rule of law, while taking competing socioeconomic, geographic, and
historical explanations explicitly into account. To this end, we construct a
new Islamic State Index to measure the influence that Islam has on a society
and its political and legal system. (Gutmann and Voigt)
David gilmart(2010)
The author says that Caste,
Democracy, and the Courts in India are unique and unified in nature and they
exist unilaterally together.The study of the historical roots of democracy in
India has attracted so much scholarly attention in a very effective way.
Indeed, it has a central theme in the development of systematic historical
comparison between democracy and the way the quasi judicial system influenced
it.(Gilmartin)
Randall Peerenboom(2009)
rule of law issues, first locating
their contribution within the broader literature on the rule of law. The Rule
of Law in Historical Context: The Political Salience of the Rule of Law Today
Although discussions of the rule of law can be traced back to Aristotle, Ham
murabi, and Han Fei Zi, the current worldwide fascination with the rule of law.
These findings suggest that more precaution is required in the construction and
employment of rule of law measures.(Peerenboom)
C. Raj Kumar(2013)
Legal education plays an important
role in developing lawyers who act as social engineers and work towards the
cause of nation building. In a globalized world, law schools face the
challenges of increased foreign competition and reduction of the role of the
state. At the same time, globalization affords space for re-examining higher
education systems by affording opportunity for establishing global universities
with international collaborations and programs. This article examines the role
of law schools in India and proposes reforms in Indian legal education system
in the light of globalization. (Kumar and Kumar)
Murlidhar C. Bhandare(2005)
The rule of law could not have been a
more appropriate moment to organize this workshop on terrorism. Two major
events have coincided. There has been an "International Summit on
Democracy, Terrorism and Security" held in Madrid, Spain. Equally in
India. It examines how the private sector in India can contribute to imparting
legal education in public service. Keeping in tune with the developments
brought about by globalization, the article proposes setting up global
universities with global curricula, faculty, and programs.(Cutler)
Iqbal A. Ansari(2001)
The rifts created by the demolition
of the Babri masjid and the subsequent riots still remain to be bridged. But
for any healing to begin requires not merely the direct and impartial intervention
of the concerned authorities, but also a sincere and concerted effort to
inculcate among diverse communities, acceptance of their differences and to
promote areas of integration.(Jayasuriya)
Harrop A. Freeman(1959)
jurisprudence in ancient India . It
turns to an analysis of ancient Hindu thought on common jurisprudential issues
(the state, law and the rule of law , punishment and procedure) and finally
attempts to reveal something of modern Hindu jurisprudence's growth. Even more
broadly, the decision led the way in the long and difficult chain of events
that finally allowed the beauty of the rule of law to rise above the
contentious and seemingly unsolvable disputes over Indian fishing rights (Freeman)
Walekar Dasharath (2010)
functions of parliament and judiciary
and establishes the norms for checks and balances. In India there is a
separation of functions and not of powers. The equation of qIndian parliament
and judiciary changed in 1985 regarding the anti defection Act, the Speaker of
State Assemblies were given the power to decide the framework is applied to a
range of topics, such as democratic stability, plural societies, and elite pacts.
The paper also applies its lessons to the case of the Glorious Revolution in
seventeenth-century England.(Freeman; Mwaikusa)
Ranbir Singh (2017)
Rule of law is generally understood
to be a universal good. However, this paper argues that rule of law is an
incomplete and at times, undesirable ideal. Rather, the focus of juridical
thought should be on rule of justice. To substantiate this claim, the paper
traces the evolution of law in India through three paradigms. Firstly, rule by
law wherein, the colonial powers used law as a means to govern the country and
exploit its resources. Secondly, rule of law, exemplified in Dicey's conception
of treating persons equally and everyone being subject to the law.(Sakhrani et al.)
Nick Cheesman (2014)
One way to conceptualize the rule of
law is in terms of substantive legal equality. Burmese farmers and activists
mobilizing through the lexicon of law to defend agricultural land against
intrusive state projects engage with the rule of law in this sense. Another way
is as a language of public and state security. Demands for the rule of law in
response to violence in Myanmar's west correspond with this usage. Whereas in
established democracies the rule of law as equality complements the rule of law
as security, in a democratizing state the two are not necessarily compatible. (Cheesman)
Charles Wilkinson (2020)
new ideas just beginning to remake
public wildlife law and policy. We can fairly doubt that Judge Boldt and the
Supreme Court would have ruled as they did if Judge Belloni had not written his
profoundly insightful and brave opinion. Further, the Belloni decision reached
beyond Indian treaty rights per se, energizing the emerging broad and
fundamental movement for Indian tribal sovereignty that has revitalized Indian
Country. (Gillroy)
Barry R. Weingast (1997)
This paper develops a game-theoretic
approach to the problem of political officials' respect for political and
economic rights of citizens. It models the policing of rights as a coordination
problem among citizens, but one with asymmetries difficult to resolve in a
decentralized manner. The paper shows that democratic stability depends on a
self-enforcing equilibrium: It must be in the interests of political officials
to respect democracy's limits on their behavior. The concept of self-enforcing
limits on the state illuminates a diverse set of problems and thus serves as a
potential basis for integrating the literature. (Weingast)
Timothy A. O. Endicott (1999)
No community fully achieves the ideal
of the rule of law. Puzzles about the content of the ideal seem to make it
necessarily unattainable (and, therefore, an incoherent ideal). Legal systems
necessarily contain vague laws. They typically allow for change in the law,
they typically provide for unreviewable official decisions, and they never
regulate every aspect of the life of a community.(Endicott)
Peter Ingram (1985)
the ideal can never be achieved
because of these features of legal practice. But I ask what counts as a
'deficit' in the rule of law, and I argue that none of these features of legal
practice necessarily amounts to a deficit. I conclude that communities fail to
achieve the rule of law only because of official infidelity to law, and the
failure of lawmakers to pursue the ideal (or their decision not to pursue it).
The rule of law is not necessarily unattainable.(Ingram)
Thomas Carothers (1998)
The rule of law is undeniably important
to peaceful, free, and prosperous societies, but it is no quick fix. Imparting
the rule of law to a society with no history of it involves changing the
attitudes of masses and elites and creating a political culture in which nobody
is above the law. Unfortunately, proponents of rule-of-law reform tend to have
simpler, less lasting things in mind, like writing legal codes and sprucing up
courts.(Ikenberry et al.)
Svend-Erik Skaaning (2010)
This article offers a comparative
review of seven rule of law measures. It demonstrates that the measures differ
in both form and appropriateness and that the differences have consequences for
the empirical results. The shortcomings are, among others, restrictions in
scope and availability of disaggregate data, insufficient codebooks, and
unjustified aggregation procedures. In most cases, the task of
conceptualization is not grounded in theory, and key principles of the rule of
law are left out while more inappropriate elements are included. (Skaaning)
H. L. A. Hart (1958)
the Positivist school of
jurisprudence from many of the criticisms which have been leveled against its
insistence on distinguishing the law that is from the law that ought to be. He
first insists that the critics have confused this distinction with other
Positivist theories about law which deserved criticism, and then proceeds to
consider the merits of the distinction.A Kantian theory of international law
can help to recover that moral element.(Hart)
Terry Nardin(2008)
Recent trends in international law
scholarship recycle objections to international law advanced by an earlier
generation of political and legal realists. Such objections fail to understand
the
place of international law in the
global order. To understand that place, we must distinguish the idea of the
rule of law from other understandings of law. That idea is an inherently moral
one. Theories of international law that ignore the moral element in law cannot
distinguish law as a constraint on power from law as an instrument of power. (Nardin)
Todd J. Zywicki (2003)
After decades of neglect, interest in
the nature and consequences of the rule of law has revived in recent years. In
the United States, the Supreme Court's decision in Bush v. Gore has triggered
renewed interest in the nature of the rule of law in the Anglo-American tradition.
Meanwhile, economists have increasingly come to realize the importance of
political and legal institutions, especially the presence of the rule of law,
in providing the foundation of freedom and prosperity in developing countries. (Zywicki)
Robert T. Deacon (1994)
Relationships between deforestation
and population pressure, income growth, and insecure property rights are
examined with data from 120 countries. Insecure property rights are hypothesized
to arise from two sources: government instability or inability to enforce
ownership and an absence of government accountability. The former source is
captured by measures of general lawlessness such as guerrilla warfare,
revolution, and frequent constitutional change. The latter is proxied by
variables indicating the type of government executive, frequency of political
purges, and the existence of an elected legislature. (Deacon)
Methodology:
The research method followed here is
empirical research. A total of 204 samples have been taken out of which is
taken through convenient sampling. The sample frame taken by the researcher
through online methods and also nearby people’s . The Independent variable taken
here is age, gender, education qualification, occupation. The dependent
variables are awareness, impact and discretion of authorities in respect to
rule of law.The statistical data used by the researcher is graphical
representation.
Analysis :
Fig 1:
Legend : this
shows about classification of the total number of responses according to age
group of the sample
Fig 2:
Legend : this
shows about the classification of the total number of responses according to
the gender of the samples
Fig 3:
Legend : this
shows about classification of the total number of responses according to the
educational qualifications of the sample
Fig 4:
Legend : This
graph shows the gender and concept of rule of law been adopted in Indian
constitution
Fig 5:
Legend : It
show the gender and separation of power
between three organs doesn’t affect the concept of rule of law.
Fig 6:
Legend : It
show the educational qualification and concept of rule of law.
Fig 7:
Legend : This
graph shows the education qualification and the concept of rule of law adopted
in Indian constitution.
Fig 8:
Legend : It
show the educational qualification and that separation of power between three
organs doesn’t affect the concept of rule of law
Fig 9:
Legend : It
show the gender and discrimination of
authorities against students
Results:
From fig 1, we can observe that there
are more respondents under the age group of 30 to 40 years and there are an
equal number of respondents under the age group of below 18 and above 50.
From fig 2, we can observe that male
and female respondent are almost same but female respondent are bit higher in a
small difference
From fig 3, we can observe that most
of the respondents were higher education students and postgraduate students
were less in number
From fig 4, we can observe that there
is a comparison between gender and the age where most of the people in the age
of 30 - 40 preferred may be as their choice
From fig 5, we can see the comparison
between age and gender where most of the people in the age group of 18
especially females rated upto 10 in the figure as they completely agreed to the
statement given by me
From the fig 6, most of the people in
the age group of below 18 have choose political recovery as their option and
least choose option is safety and security
From fig 7, we can observe that there
is a comparison between educational qualification and
the gender and where most of the
people who has their education qualifications of undergraduate preferred may be
as their choice
From fig 8, we can see the comparison
between educational qualification and gender where most of the people in the
age group of 18 especially females rated upto 10 in the figure as they
completely agreed to the statement given by me
From the fig 9, most of the people in
the age group of below 18 have choose political recovery as their option and
least choose option is safely and security
Discussion:
From fig 1,2,3 we can observe the
total responses collected from each group such as age, gender and educational
qualifications.By observing the fig 4, we came to know that most of the people
in the age group of 30 to 40 have chosen may be as their option as they didn't
have a clear idea that the concept of
rule of law been adopted in Indian constitution but most of the people in the
age group of below 18 have preferred yes as their option as they can able to
relate what is happening to them and to their neighbor hood , and also most of
them where females which we can get to know that females were not accepting
concept of rule of law been adopted in Indian constitution and leads to
discrimination. Moreover people on the age group of above 50 especially men
have chosen no as their choice as they says all the concepts of rule of law.
By observing the fig 5,we came to
know that most of the people have rated upto 10 as their preferences as they
agreed that separation of power between three organs doesn’t affect the concept
of rule of law , where most of them are in the age of below 18 especially
females have rated upto ten where they can relate it to their present
situation, and most of the male in the age group of above 50 have rated upto 10
and also people in the age group of 30 to 40 have rated upto 10 and the least
rated persons are male in the age group
is 30 to 40 as they rated upto 7.
By observing fig 6, we came to know
that most of the people in the age group of below 18 have preferred political
recovery concepts does rule of law is prevailing more in India as their option
as they think discrimination is mainly based on the political recovery and
other three age groups where preferred racism as their option as they think
that now a days economic
recovery is prevailing more in India
and most of them male ,and the least preferred option is safety and security so
here they says caste discrimination was extinct.
By observing the fig 7,we came to
know that most of the people who has their educational qualification as higher
secondary have choose may be as their option as they was not clear about the
currently and most of the people who has their educational qualification of
undergraduate have chosen no as their opinion and the least preferred option is
yes by the people who has their educational qualification higher secondary.
By observing the fig 8, we came to
know that most of the people have rated upto 10 as their preferences as they agreed
that separation of power between three organs doesn’t affect the concept of
rule of law , where most of them are in the has their educational qualification
of higher secondary especially females have rated upto ten where they can
relate it to their present situation, and most of the male who has their
educational qualification of undergraduate have rated upto 10 and also people
who have their educational qualification as post graduate have rated upto 10
and the least rated persons are female in the educational qualification of
higher secondary as they rated upto 7.
By observing fig 9, we came to know
that most of the people in the age group of below 18 have preferred political
recovery as their option as they think it is the main concept that rule of law
is prevailing in India where mainly based on the political recovery and other
three educational qualification groups where preferred access to public
transport as their option as they think that nowadays access to public is
prevailing more in India and most of them male ,and the least preferred option
is safety and security .
Limitations:
The major limitations of my study are
sample frames. The sample size is one of the major drawbacks as we are in a
pandemic situation . Due to the ongoing pandemic situation, the respondents
were connected through different online sources, including sending
questionnaires through email. The restrictive area of sample size is also
another limitation . The targeted audience is a major drawback.
Conclusion :
The founding fathers of Republic of
India accomplished what the remainder of the globe although impossible-
establish a country that might follow the letter of the law and implement the
Rule of Law. altogether matters like the protection of the rights of the
individuals, equal treatment before the law, protection against excessive
irresponsibility, the Constitution of Republic of India has provided enough
mechanisms to confirm that the Rule of Law is followed. Through its selections,
the Courts have strived to strengthen these mechanisms and guarantee swish
justice delivery to any or all voters. issues like obsolete legislation and
overcrowded courts are however little hindrances and bodies like the Law
Commission of Republic of India work towards ironing out these issues with the
aim of achieving a system wherever there aren't any barriers to the graceful
operation of the Rule of Law.
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Article Information
A Critical study on Rule of law in Administrative judicial system (By-Prof.Dr.B.Rajeswari)
Author Name: Prof.Dr.B.Rajeswari
Title: A Critical study on Rule of law in Administrative judicial system
Email Id: rajeswaribaggam3022@gmail.com
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/05
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