This article has been written by Debatmaja Ghosh, a student of Lloyd College, Noida.

 “No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by the lawful judgment of his peers or by the law of the land. To no one will we sell or deny or delay right or justice.”

Magna Carta

Introduction

Dicey defines the term “rule of law” as the absolute dominance or supremacy of conventional law as opposed to the impact of arbitrary authority or broad discretionary power. The Rule of Law (as a collection of values and doctrines) has a rich normative background that elevates it as an early contribution of the Euro-American liberal political philosophy. Rule of Law appears in different ways, including as a “thin” concept including procedural controls on governmental behavior and types of sovereign authority that may also permit Holocaust-era political activity. Black’s Law Dictionary defines rule of law as the supremacy of the law in situations when decisions are made by following well-established rules or laws and where there is no use of discretion in doing so.

Meaning

In simple terms, “rule of law” means that the law of the land takes precedence above any other elected official or authority in a nation. It is taken from the French expression “la principe de legalite,” which describes a government that is led by the law rather than by persons. Different people, in different nations, have interpreted the term in various ways. Aristotle was one of several notable philosophers who made an effort to provide a comprehensive definition. He attempted to justify the theory by connecting it to the rule of reason and other natural justice-related laws.

A.V. Dicey proposed a theory that is among the most well-known and widely accepted. His book, The Law of the Constitution, which popularised the notion. In support of his thesis that “administration should be based on principles of law and not men,” he outlined the three basic foundations of law.

• Supremacy of Law

The core element of the rule of law has always been that everyone is subject to its commands, even those who are responsible for maintaining it. When exercising their authority to enact and enforce laws, legislators must provide justifications that are permissible under the law.

• Equality before Law

The equality before the law principle seeks to guarantee that the law is applied and enforced in a just manner, whereas the supremacy of law principle places checks and balances over the government on formulating and enforcing the law. It is not sufficient to have just laws; the laws must also be applied fairly. Laws cannot discriminate against persons based on their sex, religion, color, or etc. The Indian Constitution’s Article 14 and the Preamble and Article 7 of the Universal Declaration of Human Rights both codify this idea of the rule of law.

• Pre-Dominance of Legal Spirit

Dicey believed that in order for a state to be considered as in which the principles of rule of law are being followed, more needed to be done than merely incorporate the two aforementioned principles in the nation’s constitution or in its other laws. There must be a body responsible for enforcing the law, and Dicey considered the courts could be that body. The courts are responsible for upholding the rule of law, thus they must be unbiased and free from any external influences. As a result, the rule of law is strengthened through judicial freedom.

Rule of Law in India and problem in enforcement

India embraced the rule of law system, which had its origins in British jurisprudence, as the foundation for its legal system. India’s constitution makes clear that it wants to be a nation where the law is supreme. The supreme law of the nation, from which the government and the administration receive their authority, is declared to be the constitution. If all of the state’s bodies are not required to carry out their duties in a reasonable and fair way, the notion of the Rule of Law cannot be implemented in its spirit and letter.

This indicates that the rule of law is infallible and that arbitrary authority has no bearing. Therefore, every government authority that takes any action must be able to prove that it is permitted by law. The Supreme Court has noted in several judgements that the fundamental element of the rule of law, upon which the entire constitutional structure depends, is the absence of authoritarian power. In fact, India has such a firm foundation for the rule of law that even under a state of emergency, the Supreme Court ruled that no one was above the law, not even the Prime Minister.

India faces a special set of issues that have made it challenging for the nation to uphold the rule of law throughout time. The population and size of the nation are some of the most crucial elements. It goes without saying that a huge population increases poverty and illiteracy, which makes it more challenging to execute the law. In addition to the vast population, there is also the issue of the population’s extreme segregation along caste, cultural, religious, regional, and linguistic lines. Another issue that India is concerned about is maladministration.

 A few issues that are pervasive in our nation make it challenging to uphold the rule of law. The government has already become aware of these challenges, though, and major action is being made to address them. As follows:

• Inconsistent government activities and policymaking
• Corruption
• Police officials who don’t cooperate
• Justice is delayed

If the executive disregards the rule of law and those actions are questioned and overturned by the court, the rule of law cannot be upheld. Such occurrences might have a significant negative influence on business. Therefore, government acts must be in line with the law in order to promote growth. Examples of similar occurrences from the recent past include the 2G Spectrum Allocation Case and the Vodafone Tax Case.

When rule of law is not followed, there are certain checks and balances

1. Judicial checks and balances.

The courts become involved through public interest litigations, judicial reviews, or even suo motu proceedings if the executive acts are arbitrary by providing wide powers to administrative bodies and if the legislature enacts legislation that is against the fundamental rule of law of the nation. Below are a few examples:

• Courts have upheld the rule of law as expressed in a number of issues relating to the environment. In one instance, a court ordered the closure of nearby factories because they were causing the Taj Mahal to lose its colour and become depleted.
• The Supreme Court made a significant advancement when it ruled in a case that the right to education is a fundamental human right and the fundamental right of every child.
• Even though the construction work on projects was not covered by the Employment of Children Act, 1938, the Supreme Court reaffirmed that the rule of law should prevail by ruling that children under the age of 14 could not be employed in such a hazardous occupation under the Constitution in the popular Asiad Workers case.
• A basic rule of law is the protection of children, and the Supreme Court has ordered the creation of juvenile facilities to care for children who have been incarcerated unlawfully.

• Media checks and balances.

 The media has long been seen as society’s watchdog. In any type of government, it is crucial to have a free and impartial press. It is crucial that the media operate without any type of bias or prejudice in a large and varied democracy like India since the media also plays the role of the opposition. Since social media ensures that most government officials are held responsible and keeps them on their toes, a new media outlet has also acquired relevance.

• NGOs, social media, and public interest litigations

Today’s populace is also more aware of its surroundings, raises significant questions of public importance, and demands answers from government officials, local government bodies, and courts through social media platforms like Twitter, through protests by non-governmental organizations, through legal actions involving matters of public interest, and by submitting requests for information under the Right to Information Act.

Way Forward

India has to take a few steps for the country’s economic development in order to properly enforce the rule of law and address issues at their source:

1. Legal Education

 It is important to enhance the function of law schools and legal education in developing the brains of future practitioners. Law students who have received a quality education will be aware of their responsibilities to the legal system. They would be aware of the discrepancy between the written and applied laws. A greater education would make it easier to uphold the law.

• Transparency in the legal system

In addition, the rule of law cannot exist without access to the fundamental sources of the law. Transparency in the judicial system is therefore absolutely required.

• Stability of the law

Business is the sector that is most affected when the rule of law is compromised since trade can only flourish in stable environments. Therefore, for the rule of law to endure, the law should not be perplexing or constantly changing.

Conclusion

Rule of law and economic development are closely intertwined, as was already discussed. Business would grow, foreign investment would rise, employment would emerge, crime would be reduced, reliance on police would decrease, corruption would go away back, the government would be more responsible, and the quality of living would be high. This would result in economic growth and the abolition of poverty.

Reference

Kudrat, Rule of Law in Inida, Academike , January 5 2015, https://www.lawctopus.com/academike/rule-of-law-in-india2/#_ednref23.

  Som Raj v. State of Haryana, (1990) 2 SCC 653 : 1990 SCC (L&S) 380 : (1980) 1 SCR 535.

Indira Nehru Gandhi v. Raj Narain, (1975) 2 SCC 159.

Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1.

Vodafone International Holdings BV v. Union of India, (2012) 6 SCC 613 : (2012) 3 SCC (Civ) 867.

M.C. Mehta v. Union of India, (1997) 2 SCC 353 : AIR 1997 SC 734.

Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645 : (1993) 1 SCR 594.

People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235 : 1982 SCC (L&S) 275 : AIR 1982 SC 1473.

Sheela Barse v. Children’s Aid Society, (1987) 3 SCC 50 : 1987 SCC (Cri) 458.

Rule of Law and India in 2014, (2014) PL July 73.

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