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RULE OF LAW IN INDIA - A REFLECTION UPON WE THE PEOPLE AND BEYOND
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RULE OF LAW IN INDIA
- A REFLECTION UPON WE THE PEOPLE AND BEYOND
AUTHORED BY - NEELVI RAI
SAP ID- 500084718 ROLL NO- R450220029
& MASAB AHMED MAAZ
SAP ID-500088032 ROLL NO- R450220351
ACADEMIC YEAR - 2022-2023 SESSION -
JAN-MAY 2023
UNIVERSITY OF PETROLEUM AND ENERGY
STUDIES
SCHOOL OF LAW SEMESTER VI
Table of Contents
ABSTRACT
The rule of law, in simple
words, means the supremacy of the law of the land over other things
or persons. There is no specific definition of the rule of law, but one of the most
famous definitions was given by A.V. Dicey
who based its definition on three pillars, which are the rule of law, equality before
the law and the rule of law. India has adopted the rule of law of the common law legal system
rooted in British jurisprudence. The Indian judiciary has played a leading role in shaping the
rule of law in India. Through its various species the court took a positive and dynamic view of the
provisions of the constitution ensured the observance of the rule of law in its true spirit. The idea of rule of law
is enshrined in the Constitution of India.
One can conclude from the introduction and well the fact that it declares India
as a sovereign state. Courts have
used aid to increase legal activity for years the scope of the rule of law through various provisions of the
Constitution. Even after so many efforts by the constitutionalists and the judiciary, the implementation of the rule of law is
still in progress .There is no full screen
in India. Things
like an outdated legislature and overburdened courts
are some of the things that stand in the
way same smooth implementation. Therefore, institutions such as parliament, judiciary, Law are
responsible the commission and various other
agencies must take necessary steps to ensure smooth implementation of the rule
act to ensure that it is implemented in its true sense.
INTRODUCTION
Thomas
Paine quoted in his pamphlet Common Sense: THE LAW IS KING. Because as in absolute governments the law is, so in
free countries the law SHOULD be king; and let there be no others.
The rule of law can be traced
back to Aristotle and was supported by Roman jurists;
medieval natural law
thinkers; Enlightenment philosophers like Hobbes, Locke, Rousseau, Montesquieu
in their theory of the social contract, and the American founders;
German philosophers Kant, Hegel and
19th-century advocates of Rechtsstaast ; and in this century such ideologically diverse
figures as Hayek, Rawls, Scalia,
Jiang Zemin and Lee Kuan Yew.
The term rule of law is derived from the French phrase la Principe de
legalite (principle of legality), which refers to a government based on legal principles rather than
people. It also means that the power
should be exercised within the limits prescribed by law and its alleged exercise
would not only be ultra vires but also arbitrary in the truest
sense of the word.
According to A V Dicey, whenever
there is discretion there is room for arbitrariness. Even the most autocratic form of government has a
legal framework within which the government operates.
In monarchy, this concept was developed to check the power of arbitrary powers
of rulers who claim to have divine
powers. Similarly, in a democratic state, it ensures that police officers must be able to
justify publicly that the
exercise of power is socially just and legal.
Now the concept has become a new consequence, according to
which the holders of public power
must be able to publicly justify that the exercise of power is legally valid
and socially just. It is the modern
modernized name of natural law. In jurisprudence it was known to the Romans
as "jus natural" and in the middle Ages as "the law of
God". Over time, Rousseau, Hobbes,
and Locke called it the "social contract" or "natural right".
Modern people call it "rule of law".
Efforts to define
the meaning of the rule of law usually
concern the values
and purposes that
the rule of law is supposed to serve. First, the rule of law should
protect anarchy and the Hobbesian war
of all against all. Second, the rule of law should allow people to plan their affairs with reasonable certainty, so that
they can know in advance the legal consequences of various actions. Third,
the rule of law should
be ensured by at least a certain type of official.
Supremacy of law
It means the rule of law and absolute power in the country. The law governs
all men, including development and administration of the law. Dicey believed
that wherever there is discretion there is also arbitrariness.
That is why it was said that the law established in the court should be implemented in the country and not a man can
take the law into his own hands.
Equality before the law
This means that the law must be applied fairly
and equitably. Every person, regardless of position or perhaps they should be subject to the same law and procedure as all other litigants. He said: “Every official from the Prime Minister
to the soldier or the tax collector is the same responsibility for every
act done without
a legal basis as any
other citizen.
Predominance of the legal mind
Dicey believed that the formulation of the above two principles is not sufficient and must be carried out. Powers to follow and
enforce laws. He thought the court was that authority. He proposed
a neutral and
An independent judiciary, which would be a very important aspect in the implementation of the principles of the rule of law.
RESEARCH
METHODOLOGY
This study is based on secondary data collection, specifically
a doctrinal approach. The researcher
has gathered information from a variety of sources, including commentaries, books, treatises, articles, notes,
comments, and other written works, in order to provide a comprehensive perspective. To better understand the topic, the researcher has also analysed
a range of judicial decisions, aiming
to identify any patterns or trends that may exist.
DICEY’S CONCEPT
OF RULE OF LAW
In his book Law and Constitution,
Dicey gave three meanings to the doctrine of rule
of law
Supremacy of law
It means the rule of law and absolute power in the country. The law governs
all men, including development and administration of the law. Dicey believed
that wherever there is discretion there is also arbitrariness.
That is why it was said that the law established in the court should be implemented in the country and not a man can
take the law into his own hands.
Equality before the law
This means that the law must be applied fairly
and equitably. Every person, regardless of position or perhaps
they should be subject to the
same law and procedure as all other litigants. He said: “Every official
from the Prime Minister to the soldier
or the tax collector is the same responsibility for every
act done without a legal basis as
any other citizen.
Predominance of the legal mind
Dicey
believed that the formulation of the above two principles is not sufficient and
must be carried out. Powers to
follow and enforce laws. He thought the court was that authority. He proposed a neutral and an independent
judiciary, which would be a very important aspect in the implementation
of the principles of the rule of law.
Rule of law in India and Supreme Court decisions:
The
fundamental rights enshrined in Part III of the Constitution limit the
legislative power of the Parliament
of India. This includes freedom of speech, expression, association, movement, life, property, profession and person.
In a broader sense, the constitution itself determines the system of fundamental rights of the
country. To ensure and promote the basic rights and freedoms of citizens and the observance of the principles of the
democratic rule of law. A popular habeas
corpus case, ADM Jabalpur
v. Shivakant Shukla[1] is
one of the most
important rule of law cases. In that case, the question before the court
was "whether there is rule of law apart from Article
21 in India[2]". This referred
to the suspension of the
implementation of Articles 14[3],
21 and 22[4]
during the emergency declaration. The majority's answer to the question of law was no. Judge H.R. Khanna, on the
other hand, disagreed with the majority
opinion and observed that “Even in
the absence of Article 21 of
the Constitution, the State has no right to deprive
a person of life and liberty
without law. Without
such
sanctity of life and liberty, the distinction between a lawless
society and a law-governed society would no
longer matter.
When
applied to state authorities, it assumes that any state institution that does
something that would otherwise be
wrong (for example, takes land from a man) or violates a man's freedom
(for example, refuses to grant
a building permit), can justify
its right. In a manner permitted by law - and that means
in almost every case directly or indirectly activities permitted by law.
A secondary meaning
of the rule of law is that government is exercised based on recognized rules and principles that limit
discretion. The Supreme Court observed in the case of Som Raj vs. State of Haryana5 that
the absence of arbitrary power is the primary principle of the rule of law on which the entire constitutional
edifice depends. Using discretion without a rule is a concept that is the opposite of a concept.
The third meaning of the
rule of law emphasizes the independence of the
judiciary and the supremacy of the courts. The Supreme Court in Union
of India vs. Raghubir Singh6 rightly reiterated that there is no
doubt that the lives and public duties of a large number of
people are governed by the judgments of the Supreme Courts.
Although
complete absence of discretion or inequality is not possible in the current administrative era, the concept of rule of
law has been developed and spread in common law countries like India. The rule of law provided a kind of
touchstone by which to evaluate and test the administrative law currently in force in the country.
The rule of law traditionally means the absence of
arbitrary powers, and thus any increase in administrative arbitrariness or discretion can be condemned and
protected by procedures and other means of control. The rule of law also includes the supremacy of the courts. Therefore,
the courts should finally have the power to review administrative actions, and its apparent decline
must be criticized.
The basic principle
of the common law system followed
by India remains the implicit principle in the rule of law
that the executive must act according to the law and not according to his
own will.
In
the common law system, the executive is not considered to have any inherent
powers, but all its powers come from
law. This is one of the most important principles that plays an important role in democratic
countries like India. There is a fine line between litigation and legal activism. The rule of law is the
basis for judicial review of administrative actions. The judiciary ensures that the executive remains within the limits
of the law and does not exceed it. Thus, legal activity
is kept under control. However,
there are cases in India where the judiciary has tried to encroach on the domain of the executive and parliament. A recent example
of this would
be the current reserve scenario
for other retrograde classes. The judiciary argued
that the creamy layer should be excluded from the benefits
of the reservation policy, while the parliament and the
executive opposed it. As mentioned
earlier, Dicey's theory of rule of law
was adopted and incorporated in the Constitution of India. The three-tier judiciary, the parliament and the executive function in
harmony with each other. The public can
approach both the Supreme Court and the Supreme Court in case of violation of
their fundamental rights. If the
power of the executive or parliament is abused in any way, that abuse can be overturned in the ordinary
courts. This can be argued because it is contrary to proper law. The rule of law also requires certain legal
procedure to be followed. Ultra vires can be called
anything that falls outside
the scope of the relevant law No one shall be deprived of
his life or personal liberties except according to law, nor of his property except according to law.
Government officials and the government itself are not above the law. In India, the
concept is equality before law and equal protection
of laws. Any
5
6 Union of India vs. Raghubir
Singh8194-8195 OF 1985
offense committed by anyone is punished in
the same way. A law decided in ordinary courts
applies equally and equally to all men. The doctrine of equality is also
accepted in the public service. The public can file a suit for breach
of contract etc. against the officers and
employees of the state
government.
In Chief Solution Commr; In Punjab v Om Prakash7, the
Supreme Court observed that "the most central
and characteristic feature
of our constitutional system is the rule of law, which
in that context means the power of courts
to review all administrative action in accordance with law. Administrative or
executive action that does not meet the standard is set aside after the victim
has reported.
In India, the importance of the rule of law has increased
significantly. It is considered to be part
of the basic structure of the Constitution and therefore cannot be cancelled or
destroyed by Parliament. Ideals of
the Constitution; liberty, equality and fraternity are written in the preamble. The Constitution establishes the
supreme law of the land and any law passed must be consistent with it. Any violation makes the
law ultra vires. In Kesavanda Bharti vs. State
of Kerala (1973) 8- The Supreme Court declared the rule of law as one of the most important aspects of
constitutional doctrine.
In the case
of Menaka
Gandhi vs. Union of India9 Supreme
Court has declared that Article 14 is against arbitrariness. In Indira
Gandhi Nehru vs. Raj Narain 10 Article 329-A was added to the constitution by the 39th
Amendment, which gave certain immunity from judicial review until the election
of the prime minister. The Supreme Court struck down Article 329-A because
it abridges the basic structure of the constitution. Binani Zinc Limited
Vs. Kerala
State Electricity Board and Ors. (200911) Judge S B Sinha states that
"It is now a settled principle
of law that the rule of law presupposes, among other things, that all laws are contingent, subject of course to an
express order or intention to the contrary." In Gadakh Yashwantrao Kankarrao Vs. The ratio set by Balasaheb Vikhe Patil12
was as follows:
"If the rule of law is to be preserved as the essence
of democracy, which presupposes the purity of
elections, it is the duty of the courts to appreciate the evidence and
interpret the law in such a way as to
serve that higher goal and
not to encourage the acceptance, especially the
strengthening, of even imperceptibly declining electoral standards."
The survival of democracy presupposes
the rule of law and it is necessary that the best possible men be elected. As representatives of the correct
governance of the country. This can best be
achieved by men of high moral and ethical values who win elections based
on merit and not based on the relative
disadvantage of the candidates with a negative vote in the elimination process.
.
In Sukhdev v. Bhagatram Mathew
J13. stated
that "Whatever the concept of the rule of law, be it the meaning
given by Dicey in The Law of the Constitution
or the definition of Hayek
in The Road to
Slavery and his "Constitutional Freedom" or Harry Jones in The Rule of Law
and the Welfare State", as stated by Mathew, J. in his article "Welfare State, Rule of Law and
7 Chief Solution Commr; In Punjab v
Om Prakash 937 of
1965
8 Kesavanda Bharti vs. State of Kerala (1973) SCC 225; AIR 1973 SC 1461
9 Menaka Gandhi vs. Union of India AIR 1978 SC 578
10 Indira Gandhi Nehru vs. Raj Narain 1975 AIR 865 SC 333
11 Binani Zinc Limited Vs. Kerala State Electricity Board and
Ors. (2009) 349 OF 2006 12 Gadakh
Yashwantrao Kankarrao Vs. The ratio set by Balasaheb Vikhe Patil 2 OF 1991 13 Sukhdev
v. Bhagatram Mathew J AIR 1995 SC 1331
Natural
Justice" in the Journal of Democracy, Equality and Liberty, "There is
a fundamental agreement in legal thought that the primary purpose
of the concept of the rule of law is
to protect the individual against the
arbitrary exercise of power, wherever found. Indeed, in a democracy governed by the rule of law, it
is inconceivable that the executive government or any of its officials would have arbitrary
power over the interests of an individual .All actions of the board must be rationally
justified and free of arbitrariness. That is the core of the rule of law and its
minimum requirement. And in
the application of this principle, it does not
matter whether the exercise of power
is accompanied by the consolidation of some right or the denial of
some privilege.
Secretary,
State of Karnataka and Ors. v. Umadevi and
Ors14. The
Constitutional Court of the European
Court established the law as follows: "Therefore,
it is clear that the observance of the principle of equality in public
work is the main feature
of our constitution, and
since
the rule of law is the core of our constitution, the court certainly
cannot issue a decree confirming the
violation of laws. Section 14 or section 14 is thought to be dependent on the need to comply with section 16 of
the constitution.
In the case of Amlan Jyoti Borooah vs. State of Assam15. S B Sinha opined
that "Justice should not be
equated with mercy. Equality principles must be based on facts which are unusual
and strange in themselves. A balance must be found, and the court must
ensure that its pursuit of justice
does not mean benevolence on the part of the court or consent to the violation of expressed fundamental rights
and principles of the rule of law. Further, in
Bachan Singh v. State of Punjab Singh16 Justice Bhagwati emphasized that the
rule of law excludes arbitrariness
and irrationality. To ensure this, he proposed that a democratic parliament is needed to make laws, but
that its power should not be unlimited, and that there should be an independent judiciary to protect citizens from
executive and legislative excesses.
In addition, P. sambamurthy v. SC of Andhra Pradesh 17declared
the provision that authorizes the
executive to intervene in the judiciary unconstitutional, describing it as
"a violation of the rule of
law, which is clearly a fundamental and essential feature of the Constitution".
Another case is Yusuf Khan Vs Manohar Joshi 18where
the SC proposed that it is the duty of
the state to preserve and protect the law and the constitution and that it cannot
allow any violent act that could overthrow the rule of the state.
The law, thus,
it is tacit that the concept of rule
of law is gaining importance and attention and legal means to strengthen it.
14 Secretary, State of Karnataka
and Ors. v. Umadevi and Ors 1979 SCR 937
15 Amlan Jyoti Borooah vs. State of Assam 23 2009
16 Bachan Singh v. State of Punjab Singh 273 of 1979
17 P. sambamurthy v. SC of Andhra
Pradesh417-454 of 1987
18 Yusuf Khan Vs Manohar Joshi 673 of 1998
RULE OF LAW IN INDIA
The rule of law played
an important role in the development of Indian democracy. During the drafting of the constitution, the authors had two options, the United States
and England.
Some provisions were adopted by the United States and some by England.
Our constitutional fathers adopted
the rule of law from England and many provisions were included in the Indian Constitution. The Constitution of
India is considered supreme and no one is above the Constitution of India. The rule of law is also implied in the
preamble and such a concept is enshrined in Part
III of the Constitution of India.
If
these rights are violated, appeals can be made to the Supreme Court or High
Court under Articles 32 and 226 of the
Constitution of India. The Constitution of India is enriched with principles of law viz. justice, equality
and freedom. All laws passed by the Central Government
or the State Government must be followed as per the Constitution of India. If any law passed by the parliament conflicts
with the provisions of the constitution, the law is declared null and
void. Under Article 32 of the Constitution of India, the Supreme Court has the power to issue writs of habeas
corpus, mandamus, prohibition, quo warranto and certiorari. Judicial
review was also given to the
Supreme Court to prevent ultra vires
legislation to maintain the rule of law. Gadakh Yashwantrao Kankarrao vs. Balasaheb Vikhe
Patil
That
case stated: "If the rule of law is to be preserved as an essential
element of democracy, where the
integrity of elections is a necessary condition, it is the duty of the courts
to analyse the evidence
and interpret the law in a way
that serves that higher
purpose and e not
imperceptibly contribute to the acceptance, let alone the imposition, of
declining electoral standards. The
Survival of Democracy assumes that the rule of law prevails and it is necessary that the best possible men be
chosen as elected representatives. .the proper
administration of the country. This can best be achieved by men of high
moral and ethical values who win
elections on their own merits and not through negative votes in a process of elimination based on the relative
disadvantage of candidates.
CRITIQUES
The opposite of the rule of law is personal rule. The rule of law is
necessarily governed by the people,
because the law is inert.
Men are necessary to fulfil the law, but all men tend to
interpret the law with their own
knowledge, interpretations and ethical reasons. At best, a set of laws are well-intentioned guidelines for implementing the laws of human
leadership.
Despite the seemingly enviable position of students in almost all industries,
business, education, transport, banking, insurance etc. administrative agencies intervene in the
activities of individuals, corporations and other corporations and
non-corporations, observes Justice
Ramaswamy. Administrative work involves a lot of discretion. For example: In
the case of national planning, the
executive has broad powers in relation to the land ceiling, control of basic industries, taxation,
labour mobilization, etc. Even the Parliament passes laws against
personal freedom, such as the Detention Act or the Internal Security Act
of 1971, the National Security Act
of
1980. Even the simplest thing, such as discriminatory wages for
employees, can be called inequality, which is against
the rule of law. The case Frank
Anthony Employees Union v.
Union of India included discrimination against employees which was held to be in violation of an individual's
right to equality and unfair classification of
pensioners was held in
Nakara vs. Union of India
as arbitrary.
The most important feature of the concept of rule of law is
"equality". This it has been much
criticized. Government has the inherent power to act solely at its own
will and without oversight or
restraint. Full equality is possible under general conditions not only in India
but in every country. e.g.
• No action
can be taken against Indian bureaucrats and diplomats
• No criminal
case can be instituted or continued against the President or the State Governor in any court during his term of office.
The arrest or imprisonment of the President or the Governor of the State shall not be commenced in any court during
his term of office. • Privileges of members of parliament in
actions taken against them. • There
are separate courts to resolve administrative issues.
Based on these facts, it can be said that equality in India
does not prevail in its concrete sense. Dicey's
concept of the rule of law has also been criticized. The law
changes over time. As society
develops, the laws of the land should also develop. Some see the rule of law as nothing
more than a tool
for those in power to maintain the status quo of the legal system.
The general consensus is that the status quo, far from being neutral,
protects the powerful at the expense
of the powerless. This lack of impartiality in the
rule of law contradicts
Aristotle's established ideal that all people should be equal under the
law; that people's humanity, not
their position in society, requires the fair application of laws. More extreme critics argue that "the liberal
paradigm destroyed the rule of law." The basis of this argument is that, given the actual state of the
world, many people equate the rule of law with the rule of law. This is a flawed equation, however,
because "equality simply means that there are laws, and says nothing about the quality of those laws."
Therefore, there are many shortcomings in the
concept of the rule of law, which indicate the reason why the concept has not
been properly implemented.
CONCLUSION
The
rule of law is the idea of law, justice and morality. It considers what laws,
standards, rules, procedures, systems
and structures should and should not be in place. Nations and/or their representatives should publicly
declare standards. There are three realities in this formulation. One is that the law governs
both the people and the government itself. Next,
people should obey the law. Third, the standards we call justice must be
followed—not just in the sense of being known, knowable,
and predictable, but in the deepest
sense of justice. It is a necessary part of democracy and good
governance and also helps promote stability and peace. Some believe it can help prevent wars. In addition, human
rights can be preserved under the criticism of the rule of law, i.e. absolutism and despotism. The rule of law
in Indian society has not
achieved the desired results because the deeply held values of
constitutionalism or adherence to the Indian constitution have not taken
root in the society. Corruption,
terrorism, etc. everything is antithetical to the rule of law. In recent times, common law traditions, the Indian
constitution and the steadfast role of the judiciary have contributed to the development of the rule
of law. But sometimes we slipped back into government
at will, only to return to a sadder and wiser rule of law, when the hard facts
of human nature proved the
selfishness and selfishness of man, and the truth of the saying that power corrupts and is absolute. . Power
absolutely corrupts. Some examples of how our legal system has respected the rule of law and ensured justice can
be clearly seen in the creation of new
avenues for redress of human rights violations through PIL petitions and the
promotion of genuine judicial
intervention in the areas of the elderly and children . . . work, prostitution, clean and healthy environment, etc., but
on the darker side, there are also violations of fundamental rights. For example, class and gender discrimination
against eunuchs makes the community
one of the most disempowered groups in Indian society. Sexual, but also a very deprived
social minority. A recent example is the singur case in the High Court
Division Bench consisting of Hon'ble
Justice S S Nijjar and Hon'ble Justice Pinaki Chandra Ghosh who also
heard the case.
It seems that the
police department under the control of the
home ministry is not even aware of the existence of article 21 of the constitution of India….
This article specifically guarantees that "no one shall be deprived of his life or personal liberty except
according to
law."
Unaware of the said guarantor, the police deployed a large crowd protesting
against the proposal to buy
their land." During
that period, there was a complete absence
of rule of law
in West Bengal.
Meaningful rule of law in a society
requires democracy and governance. Of law for a democratic country. Hence one can conclude
that democracy and the
rule of law are
interdependent and cannot flourish without the other. India is the largest
democracy in the world, but the rule of law is
generally under threat.
It is imperative that further
steps be taken
to promote and maintain a rule of law society
in India, without which our fundamental
democratic rights
will be seriously undermined.
REFERENCES
https://ijcrt.org/papers/IJCRT2010155.pdf
Article Information
RULE OF LAW IN INDIA - A REFLECTION UPON WE THE PEOPLE AND BEYOND
Authors: NEELVI RAI, MASAB AHMED MAAZ
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/17
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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