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A NOTE ON THE RULE OF LAW (By- Shalini)
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A NOTE ON THE RULE OF LAW
Authored
By- Shalini[1]
The concept of rule of law is age old
but has still managed to find its way into the modern world. Before delving
into the nooks and cranny of what rule of law exactly is, one must understand
the basics of what is law. In simple terms, law is the system of rules that
regulates the relationship among the organs of the government, between the
government and the people and the conduct of its subjects. For the purpose of
understanding, law here implies the law made by legislature. Rule of law,
therefore, means to be governed by the law, and not man; that both the
government and the citizens know the law and obey it. In this note, the concept
of rule of law, its different versions and aspects along with the opposition to
the application of the rule of law will be discussed.
I.
Introduction
Rule of law is an ideal doctrine in
the sea of values of political morality. To evaluate a society in terms of its
political correctness, there are a multitude of factors, including the
successful functional democracy, application of Human Rights principles,
granting economic freedom and protection of individual liberty. The rule of law
contests that the law should be superior and the powers of government and its
various organ should derive their validity from that law, they must operate
within the framework of limitations set up by the law and also must be
accountable to such law for their actions and use of such powers. Rule of law
is thus anti-thesis of arbitrariness. This is however only a part of the whole
concept. Rule of law also requires the citizens to obey the law, to respect the
law especially in case of a dispute or conflict; the citizens derive their
rights and duties from the law.
The United Nation has also recognised
the significance of the rule of law. It has defined rule of law as a principle
of governance that governs all institutions- social or political, and the
people, and makes everyone accountable to law- law which is consistent with the
international norms and standards of human rights that have been set up by the
United Nations. The United Nation has linked the concept of rule of law to
establishing peace and security at international level, ensuring political
stability of states, protecting fundamental rights of the people, curbing
corruption and putting an end to arbitrary use of power.
II.
The Concept
Of Rule Of Law
It is common knowledge that the first
instance of the concept of rule of law appeared in the document of Magna Carta
in 1215. There have been many thinkers with their own version and vision for
the rule of law. Aristotle’s concept of rule of law has been the most relevant
and is used till day as reference by modern thinkers. Aristotle posed a
realistic question- whether it is best to be governed by the laws or to be
governed by the man? He called it rule of reason and rule by passion. After
practically approaching the question, he concluded that it is best to be
governed by rule of law that is the rule of reason and not rule of man since
man is driven by passions such as greed and hunger. He coined the term epieikeia, which when loosely
translated, means equity. Aristotle’s version of the rule of law was broad
compared to the thinkers that followed him.
Montsquieu connected the concept of
rule of law with separation of powers; he opined that for rule of law to
thrive, there must be separation of powers especially the separation of
judicial powers from that of executive and legislature. He believed that in a
society, there must be a set of institutional rules that govern each individual
equally in order to fend off the oppression by using the shield of rule of law.
His version of rule of law is thus narrower than that of Aristotle.
Albert V. Dicey elaborated the theory
of rule of law that we know today. He polished the monolith concept of rule of
law and propounded three postulates for the Doctrine of rule of law in England:
1) Supremacy of Law- According to Dicey,
no man is above the law in a state. Even those who make the law are not in a
higher position than the law itself. It therefore nips the arbitrary use of
power by the government in the bud, as it requires those who frame the law and
administer it to be ruled over by the same law.
2) Equality before the Law- Every
person, irrespective of their position in society, is equal in the eyes of the
law and cannot be given a biased treatment. This postulate guarantees the just
administration of law in a society by putting everyone on the same pedestal
before the law notwithstanding their rank, power, religion or any other factor
of discrimination.
3) Constitution as emanating from the
ordinary law of land- In England, since there is no written constitution, the
rights of the people are determined by the judiciary after settling the
disputes and the constitution is a consequence of that.
Hence according to Dicey,
rule of law is the absolute supremacy of the regular law which in turn prevents
the influence of arbitrary power or exhibiting of wide discretionary powers.
In India, the principle
of rule of law was prevailing since the ancient era but has taken different
forms since. Chanakya has espoused the core of rule of law theory by stating
that the state is governed by the law and not the ruler king or the nominated
representatives or the people. Thus this doctrine in India was construed as
being ruled by the principles of law, where the government is also accountable
for its actions.
Rule of Law and Rule by Law
Justice Ramana recently
emphasised on the rule of law and to understand its difference with rule by
law. In a lecture delivered by him on the memorial of Justice PD Desai, he
advocated that we as a society have come far from where we began. The rule of
law under British regime was essentially rule by law since they administered
different laws to the British in India and the Indians were made subject to
different law. However after the independence, we gave to ourselves the
Constitution which upheld the principle of rule of law innately in its
provisions.
Rule of law, as the term
clearly states, is to be ruled by law and that the legal principles are
supreme, thus limiting the arbitrary exercise of power by the authorities,
which they derive from the law itself. Rule by law on the other hand puts
emphasis on the law laid down by the supreme authority in a state. The problem
with rule by law is that it leaves the law makers and administrators outside
its purview; it leaves no scope of accountability of the government.
Rule of law is led by
ideals of just society, such as equity and justice, for example Article 14 of
Indian Constitution guarantees equality of law and equal protection of law to
all; while rule by law has no such values, it can justify the making and
implementation of unethical laws as well, for example the apartheid regime of
South Africa was justified on basis of rule by law.
The two aspects of the
principle of rule of law explain its various versions well. The formal and
procedural aspects of rule of law (thin version) deal with the legal rules and
principles and uphold the supremacy of enacted laws. It should not be confused
with unethical and arbitrary law. Lon Fuller has espoused eight characteristics
of law in rule of law- he maintains that law must be general, public, clear, congruent,
prospective, consistent, intelligible and stable.
Joseph Raz is also the
profounder of this theory and emphasizes that law must be open, clear, stable
and general. Raz’s rule of law is a negative concept as he believes that if the
law was made following
the procedure of parliament then even if it is discriminatory, it should be
upheld since rule of law is a means to scoop the damage to individual’s liberty
caused by law in pursuit of its end goals.
The generality principle
of natural justice simply states that no one should be discriminated or
preferred in the application of the law. This is embodied in the doctrine of
rule of law. All these principles uphold the core notion of rule of law and
they are called formal because they deal with the form of norms. This formal
aspect is completed with a list of procedural norms which dictate the manner of
procedure in consonance with the principles of rule of law.
The substantive aspect,
commonly known as the thick version of rule of law, deals with the substantive
justice and bakes the cake of rule of law with other ideals of a just society,
especially the human rights of people. India follows thick version of rule of
law, which in connection with transformative constitutionalism has led the
concept of living constitution in India to a new front. It is because of such
nature of our constitution which encompasses all these characteristics in its
overwhelming structure that we as a society have kept up with the changing
needs of the people and also maintained pace with the global leading states.
The substantive dimension
completes the rule of law figure by complementing the formal and procedural
aspects as it infuses the ideals such as human rights in the core notions of
rule of law, which makes it a wholesome component of a democratic society.
As explained in the wheel of rule of
law above, the law must be clear and accessible, as people are supposed to obey
the laws, for that purpose people must know what the laws are and why they have
been enacted. It implants right to representation to people, that is people
must be given right to participate in the making of laws in a democracy. The
equality aspect of rule of law includes equal access to justice which ensures gender
equality. The most important element of rule of law is independent judiciary;
independence here is independence from the interference by the legislature and
executive in the working of the judiciary. This principle does not render
judiciary free from any accountability. The judiciary must always adhere to the
philosophy of Constitution of India. The principle of judicial review of law as
provided under Article 13 of the Constitution emanates from the independence of
judiciary with respect to the check and balance doctrine.
All these elements form the concrete
bedrock of the rule of law principle. Indian Constitution has all the elements
of rule of law in a version which best suits the interests of people. The
Supreme Court has declared rule of law as part of the basic structure doctrine
in many landmark verdicts.[3]
The Constitution guarantees independent judiciary and also contains provisions
for separation of powers of the legislature, executive and the judiciary.
Article 21 protects the individual from arbitrary action or unauthorised use of
power by the state.
III.
Opposition
And Challenges
The principle of rule of law has
faced opposition and many challenges in its implementation. The critics have
found controversies in the application of this principle, for example while
some thinkers argue that rule of law eradicates the discretionary power of the
authority, others argue that it merely limits the authority from the use of
discretionary power in order to constraint the arbitrariness and maintain
uniformity. During the emergency, some thinkers argue that state must be given
some space to be flexible and take spontaneous action to deal with the problem
in the face of it, while some thinkers believe that the constitutional
provisions must not be dismissed even during emergency, and another set of
thinkers opine that there should be a set of rules and procedural standards in
conformity of the rule of law to be followed during the period of emergency.
Each state has its own version of rule of law. This brings us to the next
controversy that there is no uniform rule of law in operation at the
international level with states as its subjects; rule of law operates only
within a state to protect the liberty of individuals but when states become its
subject, the same theory cannot be applied. In the era of globalisation where
the interconnectedness of the states at global platform is increasing, there
ought to be a standard rule of law operating at the international level with
states as its subject. The present international organisations do not subject
themselves to the rules and principles they propound for the member states to
follow, this is actively against the spirit of rule of law where the central
component is to put the law makers along with the individuals in the operation
of law so as to eradicate arbitrariness in the application of law. Despite
being opposed, organisations like the World Justice Project in its Rule of Law
Index, ranks the countries of the world according to the application of rule of
law in their territory; Denmark is currently holding first rank, while India
ranks 79th in the Rule of Law Index of the World Justice Project.
In India, the position is different,
argues Dr DD Basu. He maintains that the higher law or the grund norm in India
is the Constitution and each organ of the government derives their validity and
powers from the Constitution only. There are no explicit provisions clearly
stating rule of law in the Constitution but the principle of rule of law has
been indirectly incorporated in the Constitution and has to be derived along
the lines of such provisions only, as explained by Justice Bhagwati.[4] Dr
Basu argues that the judiciary has unnecessarily invoked the principles of rule
of law in settling the disputes which could have been done with the
Constitutional provisions only. He maintains that by doing so, the judiciary
has alleviated the status of rule of law, which is a product of the common law,
above the Constitution and it is therefore posing as a threat to the supremacy
of Constitution. The dissenting opinion of Justice Khanna in ADM Jabalpur case[5],
which was appreciated by many, has been criticised by Dr Basu. He believes that
Justice Khanna has considered rule of law as a separate concept outside of the
Constitution and has invoked it to enforce the right to move to the court which
could have been easily done by citing the constitutional provisions. Such
intervention, argues Basu, is incarcerating the Constitution.
The rule of law as propounded by
Dicey was for the United Kingdom which has unwritten constitution and as it has
transformed from rule of law to rule of Constitution when applied in the USA,
it should be read and understood along the same lines in case of India; the
supremacy of Constitution cannot be challenged.
IV.
Conclusion
India has adopted its unique version
of rule of law which best suits the common interest. It is to be derived from
the express provisions of the Constitution in resonance with the philosophy of
our Constitution. Dicey’s concept of rule of law was woven in a design where
Parliament is supreme but in a country with written Constitution, the concept
of rule of law has to be interpreted with respect to the provisions of
Constitution and not otherwise. The founding fathers of the Indian Constitution
have established a country which follows the letter of law while implementing
the elements of rule of law. Indian version of rule of law has allowed the
judiciary to upheld the transformative constitutionalism and thereby moving
with the changing needs of the society; recognition of the lgbtq+ community,
decriminalising adultery, the sabarimala judgment, etc. are evidence that India
has a thick version of the rule of law which averts state domination but also
at the same time allows the state to intervene in the life of individuals to
grant social equality.
References
1. Basu DD, Comparative Constitutional Law, 394 (3rd Ed 2014, Lexis
Nexis Publication).
2. Baxi Upendra, The Rule of Law in India, International Journal on Human Rights,
www.surjournal.org, No 6 Year 4( 2007 Ed.), available at:
http://www.surjournal.org.
3. Raz J., The Rule of Law and Its Virtue, Law Quarterly Review, Vol 93, 1977,
p. 208.
4. Rule of Law Education Centre
Australia, The Rule of Law Wheel
https://www.ruleoflaw.org.au/principles/.
5. Sathe SP, Judicial Activism:The Indian Experience, 6 WASH. U. J. L. &
POL’Y 029 (2001), URL:
https://openscholarship.wustl.edu/law_journal_law_policy/vol6/iss1/3.
6. United Nations, UNRIC Library Backgrounder: Rule of Law, United Nations and the
Rule of Law, www.un.org, 2019, available at:
https://unric.org/en/unric-library-backgrounder-rule-of-law/.
7. Waldon Jeremy, the Rule of Law, The Stanford Encyclopedia of Philosophy (Summer
2020 Ed) Edward N. Zalta (ed.), URL:
https://plato.stanford.edu/archives/sum2020/entries/rule-of-law/.
8. World Justice Project, 2021, Rule of Law Index, (2021 Ed.), URL:
https://worldjusticeproject.org/rule-of-law/index.
Article Information
A NOTE ON THE RULE OF LAW (By- Shalini)
Author Name: Shalini
Title: A NOTE ON THE RULE OF LAW
Email Id: shalinirao527@gmail.com
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/05
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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