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RULE OF LAW: A BUILDING BLOCK OF OUR MODERN SOCIETY
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RULE OF
LAW: A BUILDING BLOCK OF OUR MODERN SOCIETY
AUTHORED BY - SRIJOY MUKHERJEE
4TH YEAR BA LLB STUDENT,
CHRIST (DEEMED TO BE UNIVERSITY),
LAVASA, PUNE, INDIA.
ABSTRACT
Although administrative law is a
distinct area of law and a subject of academic study, it has just attained full
recognition as a "responsible" area of study for lawyers and law
students. Thus, in order to combat the expansion of administrative law, the people
of England employed Dicey's Concept of Rule of Law as a weapon. Our
contemporary democratic society is built on the idea of the "Rule of
Law."
Despite having no definition in the
Indian Constitution, the Indian Judiciary frequently uses this term in its
rulings. Rule of law is a philosophy of "state political morality"
that maintains a "proper balance" between the "rights" and
"powers" of individuals and between individuals and the state in
order to create a free and civil society. Rule of law is neither a rule nor a
law. It is the outcome of centuries of effort by people to get their
inalienable rights recognized.
The major goal of this essay is to
provide a full analysis of the "Rule of Law," including its history,
characteristics, place in the U.S. Constitution and the Indian Constitution, as
well as its guiding principles and exceptions. So, the paper's conclusion has
finally been offered. Numerous journals, books, and articles were consulted and
taken into consideration when creating this research study. The internet has
also helped with this process. Consequently, the Doctrinal Research Methodology
produced this report.
According to Caroline Kennedy, “The
bedrock of our democracy is the rule of law and that means we have to have an
independent judiciary, judges who can make decisions independent of the
political winds that are blowing”
INTRODUCTION
Although administrative law is a
distinct area of law and a topic for academic study, it has just attained full
recognition as a "responsible" area of study for lawyers and law
students. Thus, in order to combat the expansion of administrative law, the
people of England employed Dicey's Concept of Rule of Law as a weapon. Rule of
Law is the supreme expression of human civilization and culture and the new
"lingua franca" of global moral thought. Rule of Law is a fundamental
component of democracy and effective government, and it gives the Constitution
eternal worth. This theory, which is an animation of natural law and still
holds true today, presents a strong case for the Rule of Law rather than a
powerful individual. Former Prime Minister of India, that is, Lal Bahadur
Shastri rightly quoted that- “The Rule of Law ought to be respected with the
goal that the basic structure of our democracy is maintained and further
reinforced”.
The concept of ‘Rule of Law’ is a
building block of our modern democratic society. Despite having no definition
in the Indian Constitution, the Indian Judiciary frequently uses this term in
its rulings. Rule of law is a philosophy of "state political
morality" that maintains a "proper balance" between the
"rights" and "powers" of individuals and between
individuals and the state in order to create a free and civil society. Rule of
law is neither a rule nor a law. Law, which is built on freedom, fairness,
equality, and accountability, creates the "right balance." Rule of
Law achieves this balance between societal and individual requirements.
“La prinicipe de legalite”, which
translates to "a government based on the principles of law," is the
source of the English phrase "the rule of law." The concept of the
rule of law is credited to Edward Coke. The King, he reasoned, must be subject
to both God and the Law. 'Rule of Law' was the subject of three key arguments
made by Edward Coke. First and foremost, the rule of law is necessary to
prevent the monarchy from exercising authoritarian rule; second, it prevents
the government from exercising arbitrary power; and third, it is necessary to
defend individuals and their rights.
Objects based on Edward Coke’s theory
of “Rule of Law” are listed as follows:
1) To restrict Government from
authoritarian rule.
2) To exclude arbitrary authority of the
Government.
3) Equal application of laws and orders
irrespective of status or rank and so on.
4) To do things in legally right way.
5) Protection of individuals and their
rights.
6) Law is Supreme.
7) Administrative actions can be
questioned under law.
The Rule of Law, like many other
comparable concepts, is a live and evolving idea and cannot be precisely
defined. The phrase "rule of law" is used in opposition to "rule
of men" and "rule by law." Rule of law is the idea that the law
which is founded on the ideals of freedom, equality, non-discrimination, and
fraternity rules. Accountability, non-arbitrariness, and certainty, regularity,
and predictability are all present. In general, the terms "rule of
law" and "ideological sense" are used interchangeably.
Ideological sense refers to the regulation of the interaction between the
population and the Government, while formatic sense refers to the organised
power as opposed to a rule by one man.
ORIGIN AND FEATURES OF RULE OF LAW
The struggle for recognition of one's
inalienable rights has lasted for millennia, and the rule of law is the product
of that struggle. The Greek philosophers Aristotle and Plato addressed the idea
in the year 350 BC, making it a very old and antiquated idea. The idea altered
societal perceptions as well as how many authors perceived and interpreted the
rule of law. Rule of law, according to Plato, is "supreme in nature, and
no one is above the law." Law ought to be the State's ultimate sovereign,
according to Aristotle. The German Customary Law, which was the independent
source of the rule of law during the Middle Ages, proposed the idea that the King
is always subject to the law. According to John Locke, the government acts in
accordance with the law.
Features of Rule of Law are listed as
follows:
1) When the authorities are prohibited
from acting irrationally while exercising their authority, the Rule of Law is
protected.
2) According to the Rule of Law premise,
no one may be punished or made to suffer unless and until he has actually
broken the law.
3) Everyone is equal before the law,
according to the rule of law, hence a group of people cannot be the basis of a
law.
4) Rule of law is a fundamental tenet of
most democracies because it is applicable to everyone and has long been
ingrained in most legal systems around the world.
5) A person can only be punished in
accordance with the Rule of Law if they are accused of committing a crime and
that accusation is supported by an independent tribunal, such as a court.
“A.V. DICEY’S CONCEPT ON RULE OF
LAW”
In his work "The Law of the
Constitution," British jurist and constitutional theorist Albert Venn
Dicey created the idea of the rule of law (1885). One should be aware of the
distinction between administrative law and the Rule of Law, he claims. He
asserts that the rule of law applies equally to everyone, regardless of whether
they are prime ministers or just regular office workers like bank tellers. As a
result, everyone should be subject to the same laws, and the rule of law should
prohibit all forms of discrimination. A.V. Dicey propounded three postulates of
Rule of Law, namely Supremacy of Law, Equality before the Law, and Predominance
of a Legal Spirit.
1) Supremacy of Law- According to AV Dicey's first
postulate, the absence of arbitrary behaviour or broad discretionary authority
is what is meant by the rule of law. In other words, the law ought to apply to
every man. Law is unquestionably the supreme and governing form of arbitrary
and discretionary power, as opposed to impact or influence. Only in accordance
with the law may someone be punished.
2) Equality before the Law- According to the second postulate of
the rule of law, all classes must be equally subject to the common law of the
land as it is applied by common law courts. Therefore, it indicates that
neither a government official nor anyone else receives any unique rights. It
claims that the cases involving the government and its employees do not require
the use of extraordinary tribunals or special courts.
3) Predominance of a Legal Spirit- The right to personal liberty,
freedom from arbitrary detention, and other rights are products of English
judicial decisions, according to the rule of law's third premise. Additionally,
the English Constitution is a product of common law, and judicial rulings
establish individual rights. The courts are the guarantors of the liberty.
A.V. Dicey’s concept on Rule of Law
has various merits as well as demerits. The merits of the concept can be
summarized into the following points:
·
A.V.
Dicey's theory contributed to the establishment of administrative authority's
power limits.
·
Administrative
law has developed and received widespread attention in large part thanks to
Dicey's Rule of Law thesis.
·
For
the evaluation of administrative action, the theory serves as a scale.
A.V. Dicey’s concept had the
following demerits:
·
In
that time period, Dicey's thesis of the Rule of Law was not entirely
recognized.
·
Through
his idea, Dicey was unable to discern between arbitrary and discretionary
power.
·
Dicey
solely concerned with individual rights, ignoring administrative authority.
BASIC PRINCIPLES ON RULE OF LAW
There are certain basic principles on
Rule of Law:
1) Law is supreme, above everything and
everyone. Nobody is above law.
2) All things should be done according
to law and not according to whims and fancies.
3) No person should be made to suffer except
for a distinct breach of law.
4) Rule of law is based on the absence
of arbitrary power.
5) Equality before law and Equal
Protection of Law.
6) Discretionary powers should be
exercised within reasonable limits set by law.
7) Adequate safeguard against executive abuse
of powers.
8) Independent and Impartial Judiciary.
9) Fair and Just Procedure.
10) Speedy Trial.
RULE OF LAW IN THE U.S.
CONSTITUTION
The phrase "A government of
laws, not of persons" was how mediaeval England expressed the idea of the
rule of law, which America inherited. The "Principle of Constitutional
Supremacy" was adopted by the federal constitution of 1787, which altered
the idea of constitutional government. The American Constitution's Article VI
states that the "Constitution should be the supreme law of the land."
The American Constitution and the right to judicial review are extensions of
the rule of law, as may be seen from the well-known case of Marbury v. Madison[1].
In this instance, Justice Marshall ruled that a congressional act that was in
violation of the Constitution was not to be treated as a law. Federalism,
separation of powers, and the rule of law are the three main tenets of the
American Constitution. They also serve as the foundation for liberty, equality,
justice, and order, which is why they are known to be the "heart" of
the American Constitution.
The American Constitution is based
primarily on three fundamental ideas.
1) According to the American
Constitution, the government must be politically accountable to both the state
and the people it represents.
2) The Preamble to the United Emphasizes
Constitution states that the Constitution was created by the people, not by the
government, and that the legitimate expectation is that which originates with
and is governed by the people.
3) The American Constitution, which states that
it is the highest law of the land, is adverse to political supremacy and the
equating of all laws with the legislature.
RULE OF LAW UNDER THE INDIAN
CONSTITUTION
The development of Indian democracy
has been significantly influenced by the Rule of Law notion. When the United
States Constitution was being drafted, some provisions from the USA, some from
the USA, and some from England were adopted. The Rule of Law is a notion that
our founding fathers acquired from England, and the Indian Constitution
includes many of its provisions. The Constitution is regarded as supreme in
India, and no one is thought to be above it. The principles of the rule of law
are spelled forth in Part III of the Indian Constitution's Preamble. The Parliament,
the Executive Branch, and the Judicial Branch are subordinate to the Indian
Constitution. Any law
passed by the Central Government or a State Government must be followed in line
with the Constitution of India; however, if proven to be in violation, the law
would be ruled invalid. The Supreme Court has the authority to grant writs,
such as Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari, in
accordance with Article 32 of the Constitution. In order to protect the Rule of
Law and stop any supra vires laws, the Supreme Court also has the authority to
conduct judicial reviews.
LANDMARK CASES WITH RESPECT TO THE
RULE OF LAW
1) In the famous case of Kesavananda
Bharati Sripadagalvaru & Ors v State of Kerala & Anr[2],
the court propounded the principle of basic structure and held that any part of
the Constitution can be amended without modifying the basic structure of it.
2) In the case of State of Bihar v
Sonawati Kumari[3], the
court held that as per the concept of ‘Rule of Law’, all the authorities
operating within the State including executive government is bound to obey the
rules.
3) In the case of Indira Nehru Gandhi v
Raj Narain[4],
the court decided that the ‘Rule of Law’ is also a part of the basic structure
of the Constitution and hence, it cannot be amended.
4) In the case of Som Raj v State of
Haryana[5],
the three bench judge of Supreme Court comprising of Justice K Puttaswamy,
Justice Raghunath Mishra and Justice M.M Punchhi, held that the absence of
arbitrary power is the absolute aim of the principle of rule of law upon which
directly the whole Constitution is dependent.
5) In the case of Bachan Singh v State
of Punjab[6],
the five bench judges comprising of Justice Y Chandrachud, Justice A Gupta,
Justice N Untwalia, Justice P Bhagwati and Justice R Sarkaria, held that the
concept of Rule of Law is free from arbitrary action and if any action is done
with arbitrary power then it will be considered as the denial of Rule of Law.
This case is also known as “Death Penalty Case”.
6) In the case of ADM Jabalpur v
Shivkant Shukla[7],
popularly known as the Habeas Corpus Case, is one of the most important cases
of rule of law. In this case a question rose before the court whether Rule of
Law in India is apart from Article 21 of the Indian Constitution. Thus, the
five judge bench comprising of Justice A.N Ray, Justice Hans Raj Khanna,
Justice M Hameedullah, Justice Y.V Chandrachud and Justice P.N Bhagwati held
that there is no rule apart from Article 21 and there can never be a separate
rule of law.
7) The Supreme Court extended the scope
of Rule of Law in the case of Veena Seth v State of Bihar[8],
where the court stated that Rule of Law extends to the poor and the
downtrodden, ignorant and the illiterate, who constitute the majority of
humanity in India. The court ruled that the Rule of Law does not exist merely
for those who have the means to fight for their rights and often do so for the
perpetuation of the status quo which protects and preserves their dominance and
permits them to exploit a large section of the community.
8) In the case of Union of India v
Raghubir Singh[9], the
court held that the principle of ‘Rule of Law’ is a considerable degree which
governs the lives of the people and regulates the functions of the state from
the decision of the superior courts.
9) In the case of Chief Settlement Commissioner
Punjab v Om Prakash & Ors[10],
the Supreme Court observed that in the present scenario, the authority of the
law courts is to test the administrative actions by the standard of legality.
10) The Supreme Court in the case of S.G.
Jaisinghani v Union of India and Others[11]
characterized the prerequisites of rule of law in a very lucid manner. Here the
court observed that the Rule of Law means that decisions should be made by the
application of known principles and such decision should be predictable and the
citizen should know where he is. But if a decision is made without referring to
any principle then it is unpredictable and such decision is the antithesis of a
decision taken in accordance with the Rule of Law.
11) In the case of Supreme Court Advocates on
Record Association v Union of India[12],
also known as the “Second Judges Case”, the Supreme Court held that the absence
of arbitrariness is one of the important concepts of rule of law.
12) The Constitution Bench of the court
in the case of Secretary, State of Karnataka and Ors v Umadevi and Ors[13],
stated 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 maintaining and infringement of article 14 in requesting the ignoring
of the need to agree to the necessity of article 14 read with article 16 of the
constitution”.
EXCEPTIONS TO THE RULE OF LAW
In addition to basic characteristics,
the Rule of Law has some exclusions, including:
1) The President and Governors are
granted some protection under Articles 361, 361 (2), 361 (3), and 361 (4) of
the Indian Constitution.
2) Protection from foreign diplomats.
3) Judges of the Supreme Court and High Courts
enjoy immunity, and Article 121 of the Indian Constitution prohibits debate of
their behaviour in Parliament.
4) The National Security Act of 1980
(NSA) and the Maintenance of Internal Security Act (MISA) are two laws that
govern the country.
RULE OF LAW IN MODERN SENSE
The Dicey's concept of the Rule of
Law is not entirely embraced in the current situation. The modern definition of
the Rule of Law is fairly broad, which creates a standard for all governments
to strive for. The International Commission of Jurists created the Delhi
Declaration in 1959, sometimes known as the modern concept of the rule of law,
which was later reaffirmed in Lagos in 1961. In a free society, the functions
of the government "should be conducted in such a way that the dignity of a
man as an individual is protected," according to the Modern Concept.
The Committee on Individual Liberty
and the Rule of Law, the Committee on Government and the Rule of Law, the
Committee on Criminal Administration and the Rule of Law, and the Committee on
Judicial Process and the Rule of Law were the four working committees that made
up the International Commission of Jurists. According to the Committee on
Individual Liberty and Rule of Law, the State should not enact discriminatory
legislation, interfere with people's right to practice their religion, or
impose excessive restrictions on their freedom. According to the Committee on
Government and Rule of Law, "Rule of Law" includes both effective
governments that can uphold law and order and proper safeguards against the
misuse of power. According to the Committee on Criminal Administration and Rule
of Law, "Rule of Law" refers to the following: Presumption of Innocence,
Legal Aid, Public Trials, and Fair Hearings. Last but not least, according to
the Committee on Judicial Process and Rule of Law, "Rule of Law"
refers to an independent judiciary, independent legal profession, and a
standard of professional ethics.
Federalist Kim Davis claims that
there are seven different categories of modern law, including law and order,
the natural law principle, fixed rules and regulations that do away with the
notion of discretion, due and fair process of law, the preference of judges and
courts of law over executive authority and administrative tribunals, and
judicial review of administrative action.
Thus, the rule of law in the modern
sense ensures that political interest is encouraged and that criticism of the
government is not only allowed but also rewarded.
CONCLUSION
Although the concept of the rule of
law was imperfect, it did take control of administrative authorities and
restrained them with its measures, which is why many nations embraced it as the
guardian of the Constitution. It is the most effective strategy for
establishing legal supremacy. The court has even made an effort to connect the
idea of rule of law and human rights. Since the primary function of
administrative law is to close the gap between power and liberty, David's modern
notion offers a broad concept as well as the ability for the government to
utilise it gracefully.
As a result, the government
establishes laws and regulations in accordance with the Rule of Law that
respect each person's dignity. In light of this, it may be said that "true
freedom requires the rule of law and justice as well as a legal framework in
which the rights of some are not ensured by the denial of rights to
others."
BIBLIOGRAPHY
Article Information
RULE OF LAW: A BUILDING BLOCK OF OUR MODERN SOCIETY
Authors: SRIJOY MUKHERJEE
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/12/01
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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