This article has been written by Mr. Aman Kumar, a student of Jamia Millia Islamia.
Introduction
Rule of law is a mechanism, process, institution, practice or norm that supports the equality of all citizens before the law. The constitution of Indian intended for India to be a country governed by the rule of law. It is a concept whereby the rights and duties of citizens are put in accordance with the procedure established by law. Although the term ‘Rule of Law’ is nowhere defined in the Constitution of India but this term is often used by the Indian judiciary in their judgments. Being a protector of the Constitution higher judiciary has been trying its best to protect and promote rule of law and democracy. However, it is true that Judiciary is the protector of the constitution and dynamic judiciary is the hallmark of the vibrant democracy. So, one should accept that rule of law and democracy doesn’t exist unless there is an independent and impartial judiciary.
In this article I will explain about the importance of the rule of law and the role of the Indian judiciary in safeguarding the concept of rule of law which is one of the basic principle of the Indian Constitution.
Historical Background
Although the concept of rule of law is very old but it became famous and well known to the world in the year 1885 by the writings of the A.V.Dicey. In fact the traces for this concept one can find in Plato and Aristotle’s Classical Greek philosophy. Later, it was well developed by Roman jurist, English philosophers and contractualist like Hobbes, Locke, Rousseau and German philosophers like Kant, Hegel. However, the rule of law was first originated by Sir Edward Coke, the Chief justice in England at the time of King James. When British administration running on ‘Divine rule’ and ‘Divine rights of the King’, Coke criticized the divine rights of the king and expressed that King also must and should be under God and law. Thus for the first time idea of supremacy of the law came in to picture. Moreover he was the first person who coined a maxim called “Law principally de legality”. It is the French phrase which means ‘law will rule’ or ‘the principal of legality’ and it refers to ‘a government based on principles of law and not of men’. More over in 16th century the Scottish theologian Samuel Rutherford employed the rule of law in his argument against the divine right of kings.
A.V Dicey Rule Of Law
After Coke’s explanation the principle of rule of law extensively explained by A.V. Dicey in the year 1885 in his famous work ‘Introduction to the study of the Law of Constitution’. According to Dicey, rule of law is based on three important principles. They are:
a) Supremacy Of Law
It means that law rules over all the people including the person administering the law. It also means absence of arbitrariness on part of the government. This in essence means that no person can be arrested, penalized or be lawfully made to suffer in body or in goods except for breach of a law established in the ordinary legal manner before the ordinary courts of the land.
b) Equality Before Law
It means equal subjection of all citizens irrespective of richness or poorness, officials or non officials, literates or illiterates etc to the ordinary law of the land administered by the ordinary law courts. The law cannot discriminate between people in matters of sex, religion, race etc. As said by Dicey, there must be equality before law or equal subjection of all classes to the ordinary law of land.
c) Predominance Of Legal Spirit
This principle emphasis for an independent judiciary in a democratic set up. It says that for implementing the above two features there must be an enforcing authority. This can be best found in courts. Dicey felt that the fundamental rights are better enforced by courts rather than by declaration of such rights in a document, such as the Constitution.
Exception To Rule Of Law
There are some exceptions also attached to the Rule of Law-
- Equality is not an absolute concept in India. ‘Equality of Law’ does not mean that the powers of private citizens are the same as the powers of public officials.
- Article361 of the Indian constitution provide some criminal immunity to the president and the Governors- Because Art. 361 Provides that the president or the Governor of state shall not be answerable to any court for the exercise and performance.
- Few members of society are governed by special rules in their professionals, i.e Lawyers, doctors, army etc.
- Parliamentary privileges under Art.105, 194 under which they enjoy freedom speech to a greater extent as compared to normal citizen.
Rule Of Law – Indian Judiciary Approach
Though there is no explicit mention about rule of law principle it is very clear from the above that Indian Constitution was prepared by the Constitutional makers on the bed rocks of the rule of law. Being a protector of the constitution the Supreme Court and high courts in India has been interpreting Constitutional provisions basing on rule of law principle.
In Chief Settlement Commissioner, Punjab v. Om Prakash, in this case, the Supreme Court said that, “In our constitutional system, the central and most characteristic feature is the concept of rule of law.”
ADM Jabalpur v. Shivkant Shukla, which is famous as Habeas corpus case the question before the court was ‘whether there was any rule of law in India apart from Article 21’.This was in the context of suspension of enforcement of Articles 14, 21, and 22 during the proclamation of an emergency. A Constitutional bench of five judges with a majority of 4:1 held that the Constitution is the mandate and the rule of law. But Justice H.R. Khanna dissented from the majority opinion and said 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.”
In Kesavananda Bharati v. State of Kerala and Another, the Supreme Court held that “our Constitution postulates rule of Law in the sense of supremacy of the Constitution and the laws as opposed to arbitrariness”. Court also held that the rule of law is an aspect of the basic structure of the constitution, which cannot be violated by power of parliament. Like this, the principle of the rule of law was explicitly expressed by the court as a part of the constitution.
In State of Bihar v. Sonawati Kumari case, the Court observed that it is an integral part of Rule of law that all the authority within the State including executive government should be bound to obey the rules.
Conclusion
After considering all the above discussions into account, it is undeniable fact that the rule of law is cardinal principle of constitutionalism and for the upholding of the democratic system of the government. But at the same time for upholding the rule of law independent and impartial judicial system is important. The courts are the enforcers of the rule of law. Thus the independence of the judiciary becomes an important pillar to the rule of law.
References
- Available at: https://articles.manupatra.com/article-details/Article-14-Equality-Before-Law-and-Equality-protection-of-the-law (last visited 7th January, 2023)
- Available at: https://thefactfactor.com/facts/law/civil_law/administrative-law/doctrine-of-rule-of-law/13330/ (last visited 7th January, 2023)
- Rule of Law and Indian Constitution: A brief understanding on role of courts in upholding rule of law Available at: Article section of www.manupatra.com (last visited 8th January, 2023)
- Manik Dutt, “Application of Doctrine Of Rule Of Law In India: Expounding Upon The Proposition Of Joseph Raz” Volume 1 Issue 3, National Journal For Legal Research And Innovative Ideas, 114 (2021)
- Tanya Sharma, “Rule of law: a detailed analysis”, volume 8, International Journal of Creative Research Thoughts (IJCRT), 1142 (2020)
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