Introduction:
The Rule of Law is an important item on the list of components that create contemporary political ideals like democracy, human rights, and the principles of a free-market economy. [1] It is the bedrock of our democracy and the reason why we have an independent judiciary who can make decisions without being influenced by any politics. That is why the Rule of Law cannot be amended because it is one of the basic features of our constitution.
According to Black’s Law Dictionary: a rule of law means legal principles of day to day application, approved by the governing bodies or authorities and expressed in the form of a logical proposition.
According to Oxford Advanced Learner’s Dictionary: a rule of law means the situation in which all the citizens, as well as the state, are ruled by the law.[2]
Concept
The term “Rule of Law” comes from a French phrase ‘La Principe de Legalite’ (i.e. the principle of legality) which refers to the government having its basis on principles of law and justice instead of the principles of men or the arbitrariness of rulers.[3] In other words, the concept of Rule of Law is that the state is governed, not by the ruler or nominated representatives, but by the law. Hence, the king is not the law, but the law is king.[4]
Origin
The genesis of the rule of law could be dated back to the 13th century A.D. when Henery de Bracton, a judge in the reign of Henry III said that the king ought to be subject to god and law as it is the law that made him king. It could even be taken further back to 350 B.C. when ancient Greek philosophers such as Plato and Aristotle wrote: “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state” and “law should govern and those in power should be servants of the laws” respectively.[5] It was championed by several medieval thinkers in Europe all the way back to the formation of the first republic of ancient Romans. Indian philosophers such as Chanakya, by maintaining that the King should also be governed law, have espoused the rule of law theory in their own way,[6]
The formal origin of this doctrine though is attributed to Sir. Edward Coke, Chief Justice of King James I’s reign who said that “the king must be under God and the law”, thus vindicating the supremacy of law over the pretensions of the executives.[7] The Rule of Law has been a major part of the English Constitution from the beginning but was adopted by the Indian Constitution as a doctrine on which administrative law is based.[8]
Postulates of the Rule of Law
Professor Albert Venn Dicey, a British jurist and constitutional theorist developed this concept of the Doctrine of Rule of Law in his book ‘The Law and the Constitution’ (1885). He wrote that a written constitution, independent judiciary, the concept of rule of law and separation of powers, free election when forming legislature, democratic government, basic rights of people and federalism are among the principles that give rise to the constitutionalism in a country.[9]
Dicey advocated the fact that no one can be punished except for a distinct breach of law established by the ordinary courts of the land. That supplemented his explanation of why discretionary power should not entirely be vested in the executives since too much concentration of power creates a scope of arbitrariness (i.e. misuse of power).[10]
His most popular theory on the rule of law consisted of three distinct though kindred ideas based on the concept that a government should be based on principles of law and not of men. The three basic principles are:
1. The Supremacy of Law
Every person will be below the law at all times irrespective of his stature in society or his position in the government. Persons in authority do not enjoy wide, arbitrary or discretionary powers, they are as bound by the law as a common man. The persons administering the laws and lawmakers need to give reasons that can be justified under the law, and even these people aren’t above the law. No man can be punished except for a distinct breach of law established or proved before the ordinary court of law following due procedure. Hence, entirely separating the judicial functions from the hands of the government.
2. Equality before Law
The law must not only be fair but must also be applied in a just manner. The law mustn’t discriminate between people based on sex, religion, race etc. Every man, no matter what his rank, condition or class, is subject to the ordinary law and jurisdiction of the ordinary courts. The same ordinary laws must apply to all classes of people. There shall be no special courts or tribunals for government officials, nor shall there be special laws for those in power. Dicey even went on to criticize the French legal system of Droit Administrative for having separate tribunals for deciding the cases of state officials and citizens separately.
3. The Predominance of Legal Spirit
The rights of the people must come from the traditions and customs of the people and be recognized by the courts in the administration of justice. These rights would be dealt with in a better way if they were enacted by the courts of law instead of being stated in documentations such as the constitution. Dicey explains that the fundamental rights given to citizens by the documentation (eg. Right to personal liberty etc.) should only be made available to the citizens when they are properly enforceable in the courts of law. There is no point in giving the citizens a right that the ordinary court of law cannot administer.
He says that law should be according to justice and not vice-versa. The constitution in his opinion is not the source but the consequence of the rights of individuals, all the contents of the constitution must hence be the results of judicial decisions. In simple words, Dicey did not want the courts to rely on the constitution but instead wanted the constitution to be created based on the decisions after the due procedure of the courts.
The courts being the enforcers of the rule of law must be free from all external influences and hence impartial. Thus, making the freedom of the judiciary an important pillar to the rule of law.
Even though the findings and claims made by Prof. A. V. Dicey seem so acceptable to the penchant of 19th-century individualism, there are many flaws pointed out by various academicians and theorists in the later years. The most profound condemnation of this theory was by W. Paton, W. I. Jennings, Wade and Forsyth, each providing an array of critical inquiry on the subject.[11]
Rule of Law and India
The concept of the rule of law in India can be traced all the way back to the Upanishads.[12] Even though there are no modern drafts in which rule of law is directly mentioned or discussed, epics like the Mahabharata and Ramayana, the Ten Commandments, the Dharma Chakra and many other seminal documents have been found to have traces of the concept of rule of law.
Rule of law has played a great role in developing the Indian democracy. The farmers had two major options to choose from while framing the Indian Constitution, so they adopted some of the provisions from the USA and some from England. Rule of law was taken from the British constitution and incorporated in the Indian constitution by our constitutional fathers.[13]
Constitutional Provisions
The framers of our constitution were familiar with Dicey’s postulates of the rule of law and made sure to incorporate it in the Indian constitution along with modifications in its application to British India. That is why the ideals like justice, liberty and equality are enshrined in the preamble itself and such concept is enshrined in Part III of the Constitution.
Constitution is the grundnorm of the country from which all other laws are derived. Hence all other laws made by the central government or state government or the legislature in the country are required to be in conformity with it. To enforce this action, one can approach the Supreme Court or the respective High Court in India under article 32 and 226 by filing a writ petition. [14] Any laws framed in violation of the fundamental rights or contravening any other provision of the Constitution shall be declared void, which is also highlighted in Article 13(1).[15]
The constitution also incorporates Dicey’s second postulate of equality before the law and equal protection of laws in article 14.[16] The third postulate is described in article 19(1)(a) giving every citizen the freedom of speech and expression in a responsible manner.[17] Add article 21 (right to life and personal liberty) to these two and we have the golden triangle of the Indian Constitution because of how basic yet important they are.[18]
The Indian judicial system strictly follows that no person shall be convicted of any offence except for a violation of the law in force at the time of the commission of the act. Concepts like double jeopardy and self-incrimination too have been included in the worlds most detailed constitution. These and many more provisions of the constitution have been proudly upheld by the courts, in many cases over the years, maintaining the predominance of the legal spirit in our country.
Ups and Downs
The rule of law did see many ups and downs in India because of the disagreements between the legislative and judicial bodies, as well as jurists of different perspectives in the country. It all began with ‘The Constitution (First Amendment) Act, 1951’ which raised many doubts in relation to the status of Rule of Law in India.
One such question- ‘whether the fundamental rights can be amended under article 368’ was raised in Shankari Prasad v. Union of India. It was held that a constitutional amendment under article 368 would be valid if it only abridges the fundamental rights because under article 13 ‘law’ means a legislative action, not a constitutional amendment.[19]
The same question was raised again in Sajjan Singh v. State of Rajasthan, to which the Supreme court approved the majority judgement in Shankari Prasad case. The Hon’ble Chief Justice Gajendragadkar observed that if the farmers of the constitution intended to exclude the fundamental rights from the scope of the amending power, they would have made an explicit provision for the same.[20]
However, both these cases were overruled by the Apex Court in Golaknath v. State of Punjab, taking away the power to amend Part III of the Constitution (Fundamental Rights) from the parliament. So, the rule of law was actually saved and brought back into force by the judiciary that year.[21]
Then came the Constitution (Twenty-Fourth Amendment) Act, 1971 that apparently destroyed the rule of law in India by inserting a new clause (4) in article 13. This clause provided that ‘nothing in this article shall apply to any amendment under article 368’ which technically makes the entire article useless at this point. Further, the heading of article 368 was changed from ‘Procedure for amendment of Constitution’ to ‘Power of Parliament to amend Constitution and Procedure thereof’. This amendment didn’t only restore, but also expanded the scope of the amending power of the parliament by adding the words ‘to amend by way of the addition or variation or repeal any provision of this constitution in accordance with the procedure laid down in the Article’.[22]
This entire amendment was challenged in the case of Kesavananda Bharti v. the State of Kerala. To which the Supreme court once and for all settled the matter by overruling the decision given in the Golaknath Case and held that there are implied limitations on the power of amendment under article 368. Within these limitations though, the parliament has all the power to amend every article of the constitution as long as they don’t destroy or abrogate the basic feature or framework of the Constitution. The 13-judge bench highlighted some very important observations about the rule of law in relation to our constitution:
“Our Constitution postulates Rule of Law in the sense of supremacy of the Constitution and the laws as opposed to arbitrariness.”
“aspect of the basic structure of the Constitution, which even the plenary power of Parliament cannot reach to amend.”[23]
The Kesavananda case is a landmark for the legal system of our country and has helped us understand the rule of law in a new light. It has given us perspective, to be able to expand and apply it differently in different cases.
The Supreme Court in Indira Nehru Gandhi v. Raj Narain invalidated clause (4) of Article 329-A inserted by the Constitution (Thirty-ninth Amendment) Act, 1975[24] explaining that it violated the concept of rule of law. This amendment would have immunised the election dispute to the office of the Prime Minister from any kind of judicial review giving immense power in the hands of the person in the office. This would be a total abrogation of the rule of law.
Judicial Procurement
The foremost case from the Supreme Court that strengthened the mechanism of the rule of law in India is said to be the Habeas Corpus case, a black mark on the rule of law according to many scholars. During the proclamation of emergency when articles 14, 21 and 22 were suspended, a question raised before the court was ‘whether there was any rule of law in India apart from Article 21’. The majority of the bench answered in the negative holding Article 21 as the sole repository of right to life and liberty and during an emergency and stating that the emergency provisions themselves constitute the rule of law. But Justice H. R. Khanna observed that:
“Rule of law is the antithesis of arbitrariness…Rule of law is now the accepted form of all civilized societies…Everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order. In every state, the problem arises of reconciling human rights with the requirements of public interest. Such harmonizing can only be attained by the existence of independent courts which can hold the balance between citizen and the state and compel governments to conform to the law.”
“Even in the absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning…Rule of Law is now the accepted norm of all civilized societies” [25]
The 44th amendment of the constitution in 1978 finally laid down that even during an emergency, Articles 20 and 21 will not be suspended.[26]
The supreme court in Union of India v. President, Madras Bar Association held that disputes of citizens will be decided by judges who are independent and impartial; and that the legality of the government’s acts will be decided by judges independent of the executive.[27]
In the case between Chief Settlement Commr; Punjab v. Om Prakash, it was observed that our Constitution upholds the rule of law, so any administrative or executive action that doesn’t meet the standards, will be set aside if the aggrieved person brings said matter into notice.[28]
Following in the same lines, the Supreme Court in Satvant Singh Sawhney v. D Ramarathanana held that every executive action that would operate to the prejudice of any person, must be supported by some legislative authority.[29]
Justice R. S. Pathak observed:
“It must be remembered that our entire constitutional system is founded on the Rule of Law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason.”[30]
No court can pass or uphold order in violation of article 14 or overlooking the need to comply with the requirements of article 14 read with article 16 of the constitution i.e. equality before law and right to equal opportunity. That is because the constitution bench of the Supreme court made it clear that Rule of Law is the core of our Constitution and adherence to the rule of equality in public employment is a basic feature of it. [31]
There were many other cases in highlighting the presence of the rule of law in India. In Raman Dayaram Shetty v. International Airport Authority of India, it was held that the protection of individuals against arbitrary abuse of power is one of the tenacities of rule of law.[32] Justice Sethi observed in a case that the judiciary has been assigned a special task by the constitution to establish the rule of law.[33] In A.K. Kraipak V. Union of India the Apex Court held that ours being a welfare State, it is regulated and controlled by the Rule of Law.[34] In Maneka Gandhi v. Union of India, the court ensured that the exercise of power in an arbitrary manner by the government would not infringe the rights of the people.[35] In the E.P. Royappa v State of Tamil Nadu, Article 14 of the Constitution of India[36] was interpreted by the Supreme Court and its ambit was broadened.[37] In L Chandra Kumar v. Union of India the court struck down the amendment to article 323A and declared the independence of the judiciary to be a part of the basic structure of the Constitution in line with the third principle of Rule of Law.[38] In Veena Seth v. the State of Bihar, the rule of law was stretched to the poor, the down-trodden, the ignorant and the illiterate stating that this concept isn’t only for the ones who can contend for it, but for every person in India to maintain their status quo.[39]
Issues Faced
The legislative, the executive and the judiciary all work hard to incorporate the rule of law in the system and make sure to abide by the postulates set by Dicey. There are certain situations that cannot be configured using the path provided, because of the many traditions that are important to different cultures coexisting in India. These traditions have been followed for centuries before the laws came about, and hence some of these traditions don’t really fall in line with the laws. Convincing the followers to change their tradition is not an easy task either.
The most recent example of this is the Sabarimala Case which declared that the women’s constitutional right to worship and the principles of equality were being violated. The Lord Ayappa temple has traditionally barred all women of menstruating age i.e. 10-50 years from entering into the shrine. The verdict was to allow these women to enter the premises for worship.[40] Massive protests erupted, and there were even occurrences of violence against women who tried to enter the temple even after the Apex court declared it their right. At the same time, many women too did not agree with the court’s decision of overruling a tradition that existed before the court did. The belief of the worshipers was so strong and united, that even the highest authority to execute the rule of law could not budge them.
Honour killing, mob lynching, casteism and a plethora of other instances are indicative of the adulteration of the indigenous principle of rule of law.
Conclusion
Even though Dicey’s concept of the Rule of Law was not perfect, it has been able to take charge of administrative powers and subdued them to their parameters. The concept of rule of law has broadened with the objective of administrative law being to bridge the gap between liberty and power. The rule of law has been adopted by many countries as a watchdog of the constitution as it guides the governments to create conditions that do not interfere with the dignity of man.[41]
On the basis of the analysis and research work provided, it can be deduced that the principle of rule of law owing to the dynamism inherent in the very concept itself has evolved through several laws laid down by the parliament as well as numerous judicial pronouncements.
However, even after all the development that this concept has gone through in India, instances often come to light where people only subscribe to the law if it is in line with their perception of right and wrong. Hence it cannot be said that the rule of law is followed in ‘stricto sensu’ as it depends on the ideologies that people uphold.[42]
References:
Suman Gupta and Ors. Etc v. State of J & K and Ors. No. AIR 1983 SC 1235. Supreme Court. 1983.
A.K. Kraipak V. Union of India. No. AIR 1970 SC 150. Supreme Court of India. 1970.
ADM Jabalpur v. Shivkanth Shukla. No. AIR 1967 SC 1207. Supreme Court. 1967.
Chief Settlement Commissioner, … vs Om Parkash & Ors. No. 1969 AIR 33, 1968 SCR (3) 655. Supreme Court. 5 April 1968.
Concept of Rule of Law. Nov 2018. <https://www.lawteacher.net/free-law-essays/constitutional-law/introduction-concept-of-rule-law-essays.php#ftn2>.
constitution of india. 2020. 11 Sept 2020. <https://www.constitutionofindia.net/constitution_of_india>.
Dicey, A. V. Introduction to the study of the law of constitution. 10. 1985.
E.P. Royappa v State of Tamil Nadu and Anr. No. AIR 1974 SC 555. Supreme Court of India. 1974.
Golaknath v. State of Punjab. No. 1967 AIR 1643, 1967 SCR (2) 762. Supreme Court of India. 1967.
India, Government of. The Constitution (Forty-Fourth Amendment) Act, 1978. 12 Oct 2012. 11 Sept 2020. <https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-forty-fourth-amendment-act-1978#:~:text=1.-,Short%20title%20and%20commencement.,different%20provisions%20of%20this%20Act.>.
Indian Young Lawyers Association and Ors v. State of Kerala and Ors. No. (2017) 10 SCC 689. Supreme Court of India. 2017.
Kesavananda Bharti v. State of Kerala. No. (1973) 4 SCC 225, AIR 1973 SC 1461. Supreme Court of India. 24 April 1973.
Kumar, Bhavani. lawoctopus. 16 Nov 2014. <https://www.lawctopus.com/academike/rule-of-law-in-india/#_edn2>.
L. Chandra Kumar v. Union of India. No. (1997) 3 SCC 261. Supreme Court of India. 1997.
LAWNN.COM. lawnn. 13 Aug 2018. <https://www.lawnn.com/rule-of-law/>.
Legislative Department, Ministry of Law and Justice, Government of India. The Constitution (Thirty-ninth Amendment) Act, 1975. 21 Mar 2018. 11 Sept 2020. <http://legislative.gov.in/constitution-thirty-ninth-amendment-act-1975>.
—. The Constitution (Twenty-Fourth Amendment) Act, 1971. 21 Mar 2018. 11 Sept 2020. <http://legislative.gov.in/constitution-twenty-fourth-amendment-act-1971>.
Maneka Gandhi v. Union of India. No. AIR 1978 SC 597. Supreme Court of India. 1978.
Paine, Thomas. 24 June 2017. <http://www.gutenberg.org/files/147/147-h/147-h.htm>.
Qwerty9729. legalserviceindia. n.d. 10 Sept 2020. <http://www.legalserviceindia.com/legal/article-719-rule-of-law.html>.
Raman Dayaram Shetty v. International Airport Authority of India . No. 1979 AIR 1628, 1979 SCR (3)1014. Supreme Court of India. 4 May 1979.
Re: Arundhati Roy vs Unknown. No. AIR 2002 SC 1375, 2002 2 SCR 213. Supreme Court of India. 6 March 2002.
Sajjan Singh v. State of Rajasthan. No. 1965 AIR 845, 1965 SCR (1) 933. Supreme Court of India. 1965.
Satvant Singh Sawhney v. D Ramarathanana. No. AIR 1967 SC 1836. Supreme Court of India. 1967.
Secretary, State of Karnataka and Ors. v. Umadevi and Ors. No. AIR 2006 SC 1806. Supreme Court of India. 2006.
Shankari Prasad v. Union of India . No. AIR. 1951 SC 458. Supreme Court. 1951.
Tewari, Jolly. Rule of Law in India – An Analysis. 17 Oct 2019. <https://blog.ipleaders.in/rule-of-law-india-analysis/#_ftn4>.
Union of India v. President, Madras Bar Association. No. [2010] 11 SCC 1. 14 May 2015.
Veena Seth v. State of Bihar. No. AIR 1983 SC 399. Supreme Court of India. 1983.
Waldron, Jeremy. “The Concept and the Rule of Law.” Georgia Law Review 43 (2008). <https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1028&context=lectures_pre_arch_lectures_sibley>.
[1] (Waldron)
[2] (Qwerty9729)
[3] (Concept of Rule of Law)
[4] (Paine)
[5] (Concept of Rule of Law)
[6] (Kumar)
[7] (Qwerty9729)
[8] (LAWNN.COM)
[9] (LAWNN.COM)
[10] (Dicey)
[11] (Tewari)
[12] (Concept of Rule of Law)
[13] (Qwerty9729)
[14] (constitution of india)
[15] (constitution of india)
[16] (constitution of india)
[17] (constitution of india)
[18] (Concept of Rule of Law)
[19] (Shankari Prasad v. Union of India )
[20] (Sajjan Singh v. State of Rajasthan)
[21] (Golaknath v. State of Punjab)
[22] (Legislative Department, The Constitution (Twenty-Fourth Amendment) Act, 1971)
[23] (Kesavananda Bharti v. State of Kerala)
[24] (Legislative Department, The Constitution (Thirty-ninth Amendment) Act, 1975)
[25] (ADM Jabalpur v. Shivkanth Shukla)
[26] (India)
[27] (Union of India v. President, Madras Bar Association)
[28] (Chief Settlement Commissioner, … vs Om Parkash & Ors)
[29] (Satvant Singh Sawhney v. D Ramarathanana)
[30] ( Suman Gupta and Ors. Etc v. State of J & K and Ors)
[31] (Secretary, State of Karnataka and Ors. v. Umadevi and Ors)
[32] (Raman Dayaram Shetty v. International Airport Authority of India )
[33] (Re: Arundhati Roy vs Unknown)
[34] (A.K. Kraipak V. Union of India)
[35] (Maneka Gandhi v. Union of India)
[36] (constitution of india)
[37] (E.P. Royappa v State of Tamil Nadu and Anr)
[38] (L. Chandra Kumar v. Union of India)
[39] (Veena Seth v. State of Bihar)
[40] (Indian Young Lawyers Association and Ors v. State of Kerala and Ors)
[41] (LAWNN.COM)
[42] (Tewari)
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