Rule of law is the supreme manifestation of human civilization and culture and is a new ‘lingua franca’ of global moral thought. It is an eternal value of constitutionalism and inherent attribute of democracy and good governance.
The term ‘Rule of law’ is derived from the French phrase ‘la principe de legalite’ which means the ‘principal of legality’. It refers to ‘a government based on principles of law and not of men’. In other words, the concept of ‘la Principe de legalite’ is opposed to arbitrary powers.
It is a legal principle, of general application, which is sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition called a "Rule," because in doubtful or unforeseen cases it is a guide or norm for their decision. The Rule of law, sometimes called "the supremacy of law", provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application .
The concept of Rule of law is of old origin. It is an ancient ideal, and was discussed by Ancient Greek philosophers such as Plato and Aristotle around 350 BC. Plato 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”. Likewise, Aristotle also endorsed the concept of Rule of law by writing that "law should govern and those in power should be servants of the laws.”
In UK, Sir Edward coke is said to be the originator of this concept, when he said that the king must be under the god and law and thus vindicated the supremacy of law over the pretensions of the executives. Later, Prof. Albert Venn Dicey developed this concept. He was an individualist. He wrote about the concept of rule of law at the end of the golden Victorian era of laissez faire in England. That was the reason why Dicey’s concept of the rule of law contemplated the absence of wide powers in the hands of governmental officials. According to him, wherever there is discretion, there is room for arbitrariness.
In India, the concept of Rule of law can be traced to Upanishad. It provides that the law is the king of kings. It is more powerful and rigid than the kings. There is nothing higher than law. By its powers the weak shall prevail over the strong and justice shall triumph. Thus, in monarchy, the concept of law developed to control the exercise of arbitrary powers of the monarchs who claimed divine powers to rule. In democracy, the concept has assumed different dimension and means that the holders of public powers must be able to justify publicly that the exercise of power is legally valid and socially just.
The Rule of law is viable and dynamic concept and like many other concepts, is not capable of any exact definition. This, however, does not mean that there is no agreement on the basic values which it represents. The term of Rule of law is used in contradistinction to rule of man and rule according to law. Even in the most autocratic forms of government there is some law according to which the powers of the government are exercised but it does not mean that there is Rule of law. Therefore, the Rule of law means that the law rules, which is based on the principles of freedom, equality, non-discrimination, fraternity, accountability and non arbitrariness and is certain, regular and predictable, using the word law in the sense of ‘Jus’ and ‘lex’ both. In this sense, rule of law is an ideal. It is modern name for Natural law. In ancient times, man has always appealed to something higher than which is his own creation. In Jurisprudence, Romans called it ‘jus naturale.’ Mediaevalists called it the ‘law of god’. Hobbes, Locke, Rousseau called it a ‘social contract’ or natural law and the modern man calls it ‘Rule of law’.
There are number of elements of Rule of law which are as follows :
a) Abhorrence of arbitrary power:
Every person in society is governed by law, including governmental officials and law-enforcement officials. The court can apply the doctrine of ultra vires equally to every government agency and official for acts that are outside the authority conferred by law. Also, a person can only be punished for a breach of an existing law or regulation, and never for breach of a law not existing at the time doing something.
b) Equality before the law
Courts must apply laws equally to all people regardless of their race, class wealth, religion, etc. Every accused person should be entitled to a fair trial, to be informed of the allegations against have an opportunity to rebut the charge against him, to have an opportunity to rebut the charge against him and to have his conduct assessed by impartial judges.
c) A formal, rational court system
Formality and rationality describe a system with much predictability and little discretion, a system with regular, open and stable procedure. The advantage of such a system is that its behavior is consistent and objectively verifiable.
d) Judicial independence and separation of powers
The judiciary should be independent of the legislative and executive, and every judge should be free to decide matters before him without any improper influences, inducements or pressures. The power of a government should be spit into three are adequate checks and balances to minimize the possibility of the abuse of power. All state functionaries must at all times act in accordance with the law and no act of state should be autocratic, oppressive, capricious or against the law.
Defining the Rule of Law: Mapping Divergence
The concept of rule of law is practically as old as philosophical itself. From Aristotle, who saw the Rule of law as superior to the rule of man, to contemporaries like Ronald Dworkin and Judith Shklar, it has been debated through the years. Yet the concept of rule of law remains a conundrum.
Despite its frequent use for centuries and notwithstanding over fifteen years of experience in this newly redefined venture, practitioners and theorists alike avow that there is single template and no fixed meaning for the rule of law. Renowned legal scholars concur on the impression and vagueness of the term, despite its frequent use . The definition of rule of law is at once confused and contested. However, scholars have acknowledged, in different ways, that there is not just confusion, but also a significant divergence between schools of thought on the definition and content of rule of law.
The concept of Rule of Law is restricted to its historical genesis as a means of protection from the arbitrariness of ‘Rule of man’ and from the abuse of power by the state. Friedrich von Hayek defines the concept as ‘Stripped of all its technicalities’; this means that government in all its actions is bound by rules fixed and announced beforehand- rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstance, and to plan one’s own individual affairs on the basis of that knowledge . For Hayek, the predictability offered by the rule of law, even if oppressive, brings with it security; unpredictability and arbitrariness, in his view, produce insecurity and hamper individual freedom. The Rechtsstaat or etat de droit (State of law) that developed in continental Europe in the 19th century could be seen as an extreme form of minimalist Rule of law. However, its excessive administrative control and consequent in equities led prominent legal scholars like Albert Venn Dicey, Michael Oakeshott and Hayek himself to dismiss it as expression of the rule of law . They would see rule of law as an umbrella encompassing structural, procedural, as well as substantive elements. Dicey captures threefold dimensions of the rule of law in his depiction. The rule of law has three meanings. It means in the first place the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power. In the second place, it means equality before law and third the laws of the constitution are the consequence of the rights of individuals.
Dicey defined the Rule of law as, “….with us every official, from Prime Minister down to constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen….. ”
The rule of law, recognized and declared by the Privy Council, was uniformly administered and accepted by courts in India as the law of the land prior to the coming into force of the constitution namely, “that the executive cannot act to the prejudice of person without the authority of law.” This principle was clothed in constitutional armour when the right to life was guaranteed by Art 21 of the constitution. The international Commission of Jurists, which enjoys Consultative status with the United Nations, has been attempting, with considerable success, to give material content to the rule of law, an expression also used in the universal declaration of Human rights. One of the International Commission of Jurist’s most notable achievements was the Declaration of Delhi, 1959.
It is difficult to design a precise definition of the expression ‘Rule of Law’ in the modern democratic state. Rule of Law is a principle of general evolution in democratic societies, and is not the individual product of any state or society. It is intended to achieve its true destiny by the methods which suit the sprit and ethos of its history. Rule of law may be broadly described as ‘a system of government devised to ensure the dignity of the individual and administered by men imbued with the zealous belief that the laws are intended to protect the rights, privileges and dignity of the individual- combination of ideals concerning the purpose of organized society, and of practical experience, in terms of legal institutions, procedures and traditions by which these ideals may be translated into action’. It means that law of the land is supreme. It signifies that everyone should be equal before law, that is, no matter who you are, whether a governmental official or a peasant, you will be subject to the same consequences if you have breached the law. It demands adherence to the procedures and the institutions which, experience and tradition in different nations, with diverse political structures and economic backgrounds have adopted as essential to protect the individual from the arbitrary exercise of authority and to enable him to enjoy the dignity of man.
Rule of law does not seek to make those who are unequal equal, or to reduce the equality of those who are equal. Shorn of other complexities the rule of law requires that in the exercise of its governmental and quasi-governmental functions those who are equal will be treated equally. Equality as a foundation of democracy does not envisage equality between unequal; it contemplates equality between those who are similarly circumstanced.
II. Development of the concept of ‘Rule of law’ in UK
The Rule of law, in UK, was developed over the centuries as a brake on arbitrary power. The modern concept of Rule of law owes much to the great battles between the English kings and their subjects, the struggle for supremacy between parliament and Stuart kings, and finally the war between the British Empire and its American Colonies.
The Great Charter: Magna Carta
On June 15, 1215 in the meadows of Runnymede, King John and his rebellious barons agreed to the great charter known as Magna Carta. The great charter was the first significant written instrument limiting the power of the king and confining him to what the barons regarded as good governance. These promises were a bargain between the king and the feudal lords dictated by the force of arms.
Winston Churchill, in his History of English Speaking peoples, writes about the glorious legend of the charter of an Englishman’s liberties. “The original Articles of the barons on which Magna Carta is bases exist today in the British Museum. In the next hundred years it was reissued 38 times, at first with a few substantial alterations but retaining its original Characteristics”.
He concludes, “Now for the first time the king himself is bound by the law. The root principle was destined to survive across the generations and raise paramount long after the feudal background of 1215 had faded in the past. The charter became in the process of time an enduring witness that the power of the crown was not absolute…. And when in subsequent ages the state swollen with its own authority, has attempted to ride roughshod over the rights and liberties of the subject it is to this doctrine that appeal has again and again been made, and never, as yet, without success…..There is a law which is above the king and which even he must not break. This reaffirmation of a supreme law and its expression in a general charter is a great work of Magna Carta; and this alone justifies the respect in which men have held it”.
James the first and chief Justice Coke
The role of Sir Edward Coke, Lord Chief Justice of England in the fight against the absolute power of Stuart kings, is epic in its dimensions. It was a cold wintry morning at Westminster Hall on November 13, 1608. James I was bent on establishing his absolute power claiming the divine right of the king. Parliament and the royal courts of Justice stood in his way.
Under the leadership of Chief Justice Coke the Courts had started interfering in the matter of prerogative powers, seizures and detentions and were issuing writs to review the decisions of local feudal and ecclesiastical courts. On this historic day, King James claimed that, “Since the Judges was but his delegates he could take any case he chose, remove it from the jurisdiction of the courts and decide it in his royal person.” To this chief Justice coke answered, “In the presence and with the clear consent of all the judges……that the king in his own cannot adjudicate any casebut that it ought to be determined and adjudicated in some court of justice, According to law and customs of England. To this king James replied, “That he thought that the law was founded upon reason, and that he and others had reason as well as the judges.” Then he followed the stirring and courageous reply of Coke which sends a thrill of pride in every lawyer and every judge even after so many years. He said, “ it was god who had endowed His Majesty with excellence science and great endowments of nature; but His majesty was not learned in the laws of his realm of England and causes which concern the life or inheritance or goods or fortunes of his subjects are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it that the law was the golden metwand and measure to try the causes of the subjects”. James was greatly offended and said, “This means that I shall be under the law which is treason to affirm”. To which the Coke replied, “that Bracton said that the king should not be under man but should be under God and law (Quod rex et lege).
In 1616 James I sent a Royal Order issued by Sir Francis Bacon as Attorney General to coke and his fellow judged not to proceed with the hearing of an action because the king’s prerogative was in question. The judges demurred, but when summoned by the king the other judges humbled themselves and promised to do as the king desired but chief Justice Coke alone stood firm and replied, “that when the case should be he would do that should be fit for a judge to do.” As a result Coke was dismissed from his position as Chief Justice of the King’s Bench. It was only after the Glorious Revolution and Act of Settlement (1701) that parliamentary powers became ascendant and the independence of the judges’ tenure was firmly secured.
Dicey’s Concept of Rule of Law
Dicey developed the contents of his thesis by peeping from a foggy England into a sunny France. In France, Dicey observed that the government officials exercised wide discretionary powers and if there was any dispute between a government official and private individual it was tried not by an ordinary court but by a special administrative court. The law applicable in that case was not ordinary law but a special law developed by the administrative court. From this Dicey concluded that this system spelt the negation of the concept of rule of law which is secret of Englishman’s liberty. Therefore, dicey concluded that there was no administrative law in England.
In England, the doctrine of rule of law was applied in concrete cases. If a man is wrongfully arrested by the police, he can file a suit for damages against them as if the police were private individuals. In Wilkes v. wood it was held that an action for damages for trespass was maintainable even if the action complained of was taken in pursuance of the order of the minister. In the leading case of Entick v. Carrington a publisher’s house was ransacked by the king’s messengers sent by the secretary of state. In an action for trespass, 300 were awarded to the publisher as damages. In the same matter, if a man’s land is compulsorily acquired under a illegal order, he can bring an action for trepass against any person who tries to disturb his possession or attempts to execute the said order.
Dicey’s formulation of the concept of Rule of law, which according to him forms the basis of the English constitutional law, contains three principles
1. Absence of discretionary power in the hands of the governmental officials. By this Dicey implies that justice must be done through known principles. Discretion implies absence of rules, hence in every exercise of discretion there is room for arbitrariness.
2. No person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of land. In this sense, the rule of law implies:
a) Absence of special privileges for a government official or any other person
b) All the persons irrespective of status must be subjected to the ordinary courts of the land.
c) Everyone should be governed by the law passed by the ordinary legislative organs of the state.
3. The rights of the people must flow from the customs and traditions of the people recognized by the courts in the administration of justice
Dicey’s thesis has its own advantage and merits. The doctrine of rule of law proved to be effective and powerful weapon in keeping administrative authorities within their limits. It served as a touchstone to test all administrative actions. The broad principle of rule of law was accepted by almost all legal systems as a constitutional safeguard.
The first principle (Supremacy of law) recognizes a cardinal rule of democracy that every government must be subject to law and not law subject to the government. It rightly opposed arbitrary and unfettered discretion to the governmental authorities, which has tendency to interfere with rights of citizens.
The second principle (equality of law) is equally important in a system wedded to democratic polity. It is based on the well known maxim “however high you may be, law is above you” and “all are equal before the law”
The third principle puts emphasis on the role of judiciary in enforcing individual rights and personal freedoms irrespective of their inclusion in a written constitution. Dicey feared that mere declaration of such rights in any statute would be futile if they could not be enforced. He was right when he said that a statute can be amended and fundamental rights can be abrogated. We have witnessed such a situation during emergency in 1975 and realized that in absence of strong and powerful judiciary, written constitution is meaningless.
Dicey never spoke of equality under the rule of law as rigid. He was not blind to inequalities glaring inequalities in the British legal system, not to the contradictions involved in the supremacy of the parliament and the guarantees of equality of all classes to the ordinary law administered by the courts. His dislike of the French system of administrative tribunals was the most vulnerable in his enunciation. Dicey’s antagonism was based on his supposition that law meant fixed rules, and administration involved exercise of discretion not controlled or guided by rules. His dislike of exercise of discretionary authority, if literally understood, may appear illogical, for in every decision, judicial or administrative, there is vast field of discretion. Administration of justice is not a mechanical process inexorably leading to a set result from a given set of facts. It involves a large area of discretion. It would be a perversion of true quality of justice to attribute to the adjudicator or judge of a mechanical approach. There is again no reason to suppose that an administrative authority exercising power vested by law does not do justice merely because have has discretion in formulating his line of action.
Dicey contrasted law with administrative action and discretion, and asserted that Rule of law means absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, the existence of arbitrariness, of prerogative or of wide discretionary authority of the government. Even in those days discretion as they exercised it now. But what Dicey probably criticized was exercise of discretionary powers not supported by law. He was not wrong in asserting that in Britain the court was not powerless to grant relief, in respect of affairs and disputes in which the government and its servants were concerned, but in France the administrative tribunal alone could grant relief.
Dicey’s first principle (supremacy of regular law as opposed to the influence of arbitrary power) has been seriously challenged, due to the proposition that the rule of law excludes even wide discretionary authority by the government. The modern government depends on many discretionary powers granted to the executive by the large numbers of statutes annually passed by parliament or other legislature. It seems that Dicey’s formulation may be interpreted to disapprove of the thousands of regulations in our society made through the discretion of delegated authorities. This first principle also contradicts the fact that, as a matter of necessary efficiency, many present day statutes allow police the power to detain people for a short period of time due only to a reasonable suspicion. Ivor Jennings has also pointed out that arbitrary power may be increased in national emergencies, such as war. This was reflected in the drastic powers given to the English government by the Defense of the Realm Act in 1914
Dicey’s second meaning stresses the equal subjection of all persons to the ordinary law. What a constitutional guarantee of equality before law may achieve is to enable legislation to be invalidated which discriminates between citizens on grounds that are considered irrelevant, unacceptable or offensive. These views of Dicey long impeded the proper understanding of administrative law, but today the need for such law in a democracy cannot be denied. Administrative courts as they may exist protect the individual against unlawful acts by public bodies.
Dicey’s second principle (equality before the ordinary law of the land) may also be challenged in today’s law. Although it is true that public officials who commit crimes or torts are liable before the ordinary courts (except for circumstances of non-justiciability, such as in The Church of Scientology v Woodward, it is not true that those public officials and private citizens have the same rights, and are thus equal. “A tax investigator, for example, has powers which the taxpayer does not possess”. Furthermore, members of the police force may be able to exercise considerably more lawful power over members of society than the average citizen lawfully could.
The principle of equality before the law has raised significant problems for the rule of law. It would be unjust if the law failed to account for social difference and disadvantage, and simply presumed that everyone was equal and should be treated equally. This led Hayek to attempt to adapt the rule of law in a manner that Joseph Raz thought created “exaggerated expectations” for it . Hayek stated: “The requirement that the rules of true law be general does not mean that sometimes special rules may not apply to different classes of people if they refer to properties that only some people possess... Such distinctions will not be arbitrary; will not subject one group to the will of others, if they are equally recognized as justified by those inside and those outside the group”. This statement lead Raz to allege it was a guarantee of freedom and a “slippery slope leading to the identification of the rule of law with the rule of good law”.
Dicey’s third meaning of the rule of law expressed a strong preference for the principles of common law declared by the judges as the basis of the citizens’ rights and liberties. Dicey had in mind the fundamental political freedoms- freedom of the person, freedom of speech, freedom of association. Today it is difficult to share Dicey’s faith in common law as the primary legal means of protecting the citizen’s liberties against the state. First, fundamental liberties at common law may be eroded by Parliament and thus acquire a residual character. Secondly, the common law does not assure the citizen’s economic and social well-being. Third, while it remains essential that legal remedies are effective, there is value in a declaration of the individual’s basic rights and in creating judicial procedures for protecting those rights. Diceyan theory may be further criticised due to his perception of the “sovereignty of Parliament and the supremacy of the rule of (ordinary) law”. Keith Mason has pointed out that Australian parliaments may be supreme, but they are not sovereign. “The rule of law affirms parliament’s supremacy while at the same time denying it sovereignty over the Constitution.” Criticisms of Diceyan theory have lead to different formulations of the rule of law; but Dicey’s formulation still reflects some of the fundamental principles of the rule of law. In following his formulation some commentators prefer the narrow term ‘government under law’ rather than ‘rule of law’. However some commentators prefer to formulate the rule of law, not as an actual rule of law in itself, but as a “statement of constitutional and juridical principle, a juristic reserve, an idea of a profound legality superior, and possibly anterior, to positive law. It is not easy to define with precision, because in part it manifests itself more as an absence than a presence, rather like those other great negatives, peace and freedom”.
F.A. Hayek has provided a clear and concise formulation of the rule of law:
“Stripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand - rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge.”
Broader views on the rule of law, such as the judgment of Brennan, Deane, and Dawson JJ in Chu Kheng Lim v Minister for Immigration , will also recognize the inherent relationship between ‘government under law’ and the separation of powers doctrine. If Dicey’s formulation were a strict standard, then it would be quite easy to point out a number of circumstances in which that standard has been departed from by states. It can be noted that Raz has not limited himself to Diceyan theory in his criticisms of the rule of law. Raz argues that the rule of law “is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man”
Rather than hopelessly trying to make excuses as to why the rule of law has not always prevailed in English law, Raz stated: “Since the rule of law is just one of the virtues the law should possess, it is to be expected that it possesses no more than prima facie force. It has always to be balanced against competing claims of other values”. Raz considers the rule of law to be a negative value that is “merely designed to minimise the harm to freedom and dignity which the law may cause in its pursuit of its goals however laudable these may be”. The rule of law has been limited in its fulfillment of constitutionalist promises. However, in assessing whether the rule of law has fulfilled its constitutionalist promises it must be repeated: “The rule of law sustains much more than constitutionalism”. Constitutionalist promises involve the limiting and supporting of state power. Before criticising the effect of the rule of law it must be noted that values of equality and human rights, as discussed by Dicey and Hayek, are not always directly constitutionalist promises. However this is not to say that constitutionalist promises, such as the restriction of arbitrary power, have not indirectly assisted these values.
The rule of law’s intended protection against the use of arbitrary power, and the principle that law must be supreme, is, however, a constitutionalist promise. Furthermore, it is fair to say that the principle that government officials should be equally subject to the law is a constitutionalist promise, in that it fulfils a purpose of restraining state power.
The concept of “rule of law” per se says nothing of the “justness” of the laws themselves, but simply how the legal system upholds the law. As a consequence of this, a very undemocratic nation or one without respect for human rights can exist with or without a “rule of law”, a situation which many argue is applicable to several modern dictatorships. However, the “rule of law” is considered a prerequisite for democracy, and as such, has served as a common basis for human rights discourse between countries such as the People’s Republic of China and the West.
The rule of law is an ancient ideal first posited by Aristotle as a system of rules inherent in the natural order. It continues to be important as a normative ideal, even as legal scholars struggle to define it. The concept of impartial rule of law is found in the Chinese political philosophy of Legalism, but the totalitarian nature of the regime that this produced had a profound effect on Chinese political thought which at least rhetorically emphasized personal moral relations over impersonal legal ones. Although Chinese emperors were not subject to law, in practice they found it necessary to act according to regular procedures for reasons of statecraft. In the Anglo-American legal tradition rule of law has been seen as a guard against despotism and as enforcing limitations on the power of the government. In the People’s Republic of China the discourse around rule of law centers on the notion that laws ultimately enhance the power of the state and the nation, which is why the Chinese government adopts the principle of rule by law rather than rule of law.
There has been numerous criticism of the concept of rule of law. One is that by focusing on the procedures used to create the law, one loses sight of the content and consequences of those laws. Another, which has been advised by critical theorists, is that the concept of rule of law is merely a method by which the ruling classes can justify their rule, because they are in charge of determining which laws get passed or not (in other words, they argue that the rule of law is in reality the rule of those people who have the power to make or change laws). Yet another criticism focuses on the emphasis that rule of law places on the prevention of arbitrary action, while giving legitimacy to all actions performed “according to the law”, even when most people would oppose those actions. As evidence to support these objections, the following example is often given: if an authoritarian government commences legal action against a political dissident, that action may not be arbitrary or made by personal whim, and it may be made exactly according to the law, but it may still be objectionable.
III. Rule of Law in India & in Indian Constitution
India has been hailed as the world’s largest and most vibrant democracy. The world is full of praise for the rule of law and democratic freedoms which, in South Asia, are enjoyed only by those living in India. More than Sixty Years of Democracy have, however, failed to improve the lives of the masses in India.
India has a written constitution; a body of laws, subordinate to the constitution, dealing with various subjects; rules and regulations, executive instructions & Conventions. All these may be broadly termed as ‘law’ and their operation to subject population is the ‘Rule of Law.’
India is, in many senses, a typical example of a modern nation state. It contains within itself most of that which commends a state to the universal body politic. It has managed to stay within the definition of democratic. It has an elaborate, written constitution clearly delineating the three pillars of the modern nation state viz. the legislature, the executive and the judiciary, and demarcating their respective roles.
The fundamental rights embodied in the Indian constitution in terms virtually identical term to the universal declaration of human rights act as guarantee that all Indian citizens can and will lead their lives in peace as long as they obey the law. These civil liberties take precedence over any other law of the land. They include individual rights common to most liberal democracies, such as equality before the law, freedom of speech and expression, freedom of association and peaceful assembly, freedom of religion, and right to constitutional remedies, such as Habeas Corpus, for the protection of civil rights. These rights are fundamental rights because they are certain basic human rights which every human being has the right to enjoy for a balanced and harmonious growth of his or her personality. These rights are guaranteed in the constitution of India and help in the growth and development of responsible citizens. The constitution provides for safeguards against any violation of these rights. These safeguards can be enforced in a court of law, hence they are justiciable rights. They check the government from making laws that go against fundamental rights. Furthermore, they act as bulkwark against various forms of exploitation which take place against women, children and minority communities.
On paper, India also has a fairly elaborate and developed system of justice administration. The best and the most liberal strands of Anglo-Saxon jurisprudence have been interwoven into the foundations of our legal system.
Human Rights Abuse
At first sight, it seems that the rule of law and the respect for human rights and human dignity prevail but there exists significant human rights abuses, despite the extensive constitutional and statutory safeguards. Many of these abuses are generated by intense social tensions, violent secessionist movements and the authorities’ attempts to repress them, and deficient police methods and training. Serious human rights abuses include extra-judicial executions and other political killings, torture, and excessive use of force by security forces and separatists militants, as well as kidnapping and extortion by militants, especially in Kashmir and north east India; torture, rape, and deaths of suspects in police custody through out India; arbitrary arrest and incommunicado detention in Kashmir and in the north-east; Continued detention through out the country of thousands arrested under special security legislation; long delays in criminal trials; widespread inter-caste and inter-communal violence, both societal and by the police and other agents of government, against women; discrimination and violence against indigenous people; and widespread exploitation of indentured, bonded, and child Labour.
In India, people are confronted with a state apparatus that has perfected a system of repression and Oppression. Repression is not just a matter of custodial torture and extra judicial murder. Mis-governance or mal governance is repression too. The Indian state per se is not responsible for crimes against humanity and for violation of human rights; rather the instrumentalities of the state abuse the authority vested in them.
In India, there are various groups of people who are socially or economically disadvantaged such as Dalits, the tribals, the abjectly poor, the abysmally helpless and ignorant, the landless, the women, and all those who are or are forced to become marginal to the mainstream. They compromise an overwhelming majority.
India’s caste system continues to cast its shadow over the country’s secular and democratic constitution. Although Art 17 of the Constitution of India abolishes the practice of untouchablity, and Art 14 & 15 calls for equality and the prohibition of any form of discrimination respectively, widespread social and economic inequalities and discriminations plague Indian society and are in fact are constantly on the rise. Social Discrimination is rife in India and it increasingly takes the form of police and state abuse towards scheduled castes, as well as other ethnic minorities. Discriminatory attributes are rife amongst law enforcement officials; the Indian police force is known for its communalism and political affiliations. Large scale violations of human rights perpetrated on Dalits involve burning of homes and fields, murder, torture and beating of women, molestation, rape, and custodial death.
Women are particularly vulnerable to the discrimination in India. Custodial rape is not unusual and the conviction rate for this type of crimes remains close to zoo. Rape committed by the armed forces is also common in areas of insurgency, such as north-east India, where this offence is usually perpetuated during combating operations carried out in search of terrorists.
Custodial torture is another example of the widespread violation of civil rights of citizens. It happens in spite of Art 22 of the Constitution of India, which provides for the protection against arbitrary arrest and detention. The Hon’ble Supreme Court of India has time and again held that the dignity of individuals should be maintained at all times, including when they are in a state custody, and that an individual never loses his fundamental rights which continue to inhere in him even when he is in judicial custody. The Hon’ble Supreme Court held that the right to life (Art 21) includes the right not to be tortured or humiliated. The apex Court had laid down guidelines to be followed in cases of detention and judicial custody; this includes an obligation on the part of the state to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. In spite of this, one gets to hear almost everyday about cases of custodial deaths. This is so because the state confers arbitrary power to the police under the pretext of maintaining law and order, and in so doing, legitimizes human rights violations. The Indian police today are also agents of social prejudice and bias.
Unsatisfactory functioning of municipal administrative organs also impacts very negatively on the rule of law. It is not surprising, therefore, that an overwhelming number of complaints are directly related to the work of public administrative bodies. Administrative organs still do not apply principles of good administration. Good administration is based on a high level of courtesy to be shown to citizens, free access to all information in the possession of the authorities, strengthening of supervision, especially of municipal systems of government, de-politicization of the public administration, etc. the recent enactment of a law guaranteeing a right to public information is step towards good governance.
The rule of law in India has deteriorated sharply, and this demonstrates how little the general public can trust the law enforcement agencies in the country. The emergence of various sections of society as symbols of ethnic or religious assertion and identity corrodes the pre-eminent position that the rule of law as an essential ingredient of liberal democracy should have in our country.
The rule of law goes out of window when politics is not treated as an instrument for public welfare but as an instrument for private gain. Indeed, during the past three decades, the increasing competitiveness in Indian politics has trampled upon the rule of law time and again. This trend has intensified since the 1990’s, because most parties, both regional and national, are playing the dual role of ruling and opposition parties in one context or the other. The Indian state and its agencies fail to practice the rule of law and to ensure equality before the law and equal protection of laws to criticize, and to uphold and protect the rights of the citizens because the state power (the opposition included) demonstrated naked aggression and promotes a violent political culture. This is becoming clear when we read credible but true stories of corruption, criminality and self-gain amongst our present politicians.
The end of Lau Prasad Yadav’s misrule in Bihar was greeted with hope that a new era of public service may begin. But it was disgusting and demoralizing to find the newly elected MLAs of Chief Minister Nitish Kumar’s Alliance behaving like goons and small time thieves by breaking into government bungalows like a dacoit raiding party disturbing spoils amongst themselves. The situation was so depressing that MLAs and even sitting minister in state were not served with a non-bailable warrant by the courts on the specious ground that the person concerned was ‘not available’. Such effrontery and disregard for the law may well justify some one to ask whether we are governed by the rule of law. Because if politicians can disregard the law with impunity, why would the rest of moneyed people not use their clout?
Is it any wonder that so called people’s representatives continue to be indifferent even to the exhortation of Mr. Somnath Chatterjee, the former Lok Sabha Speaker, who, while delivering the Bhimsen Sachar Memorial Lecture said, “Large Sections of the people are greatly worried about the nexus between crime and politics as well administration in the country. I am Saddened to observe that politics in the country has to a large extent, become criminalized and crime has become politicized .” It implies that there is hardly an optimistic future for the Rule of law.
Indian politicians unfortunately focus on the routine, though not necessarily efficient, application of the law but do not stress the necessity of subordination of the government (and the political class) to it. In their view, the law exists not to limit the state characterized as ‘rule by law’ rather than ‘rule of law’, this narrow conception is proving ruinous to Indian Democracy.
Indian Judiciary & Rule of Law
The Hon’ble Supreme Court and the various High Courts through Judicial activism and public interest litigation, other bodies such as the National Human Rights Commission and State Human rights Commissions and various non-governmental organizations have made significant contributions towards protecting freedoms and preventing human rights violations and abuses, thereby ensuring that the Rule of Law and respect for citizens’ rights do not remain only on paper but are incorporated in practice too.
With the Constitution 1st Amendment Act, 1951, the status of Rule of law in India was shocked. The question which came up for consideration in Shankari Prasad v. Union of India was whether the fundamental rights can be amended under Art 368. The first Amendment Act, 1951 inserted Art 31 A and Art 31 B in the Constitution of India and it was challenges on the ground that it violated or abridges the right conferred under Part III of the Constitution. The Hon’ble Supreme Court held that Parliament has the power to amend Part III of the Constitution under Art 368 as under Art 13 law means any legislative action and not a constitutional amendment. Therefore, a constitutional amendment would be valid if abridges any of the fundamental rights. Again, the question came up for consideration in Sajjan Singh v. State of Rajasthan in which the Hon’ble Supreme Court approved the majority judgment in Shankari Prasad case and held that amendment of the Constitution means amendment of all provisions of the Constitution. Hon’ble Chief Justice Gajendragadkar held that if the framers of the constitution intended to exclude fundamental rights from the scope of the amending power they would have made a clear provision in that behalf. Both these cases were overruled by the Hon’ble Supreme Court in Golk Nath v. State of Punjab and held that Parliament have no power to amend the Part III of the Constitution so as to take away or abridges the fundamental rights and thus, at the end the Rule of law was sub served by the Judiciary from abridging away. But this was not the end. The Rule of law was trumpled down with the Constitution 24th Amendment Act, 1971. Parliament by the way of 24th Amendment inserted a new clause (4) in Art 13 which provides that ‘nothing in this Article shall apply to any amendment of this constitution made under Art 368’. It substituted the heading of Art 368 from ‘procedure for amendment of Constitution’ to ‘Power of Parliament to amend Constitution and Procedure thereof’. The 24th Amendment not only restored the amending power of the parliament but also extended its scope 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”.
The Constitution 24th Amendment Act, 1971 was challenged in the popular & most controversial case of His Holiness Keshavanand Bharti v. State of Kerala . The Hon’ble Supreme Court by majority overruled the decision given in Glok Nath’s case and held that parliament has wide powers of amending the constitution and it extends to all the Articles, but the amending power is not unlimited and does not include the power to destroy or abrogate the basic feature or framework of the constitution. There are implied limitations on the power of amendment under Art 368. Within these limits Parliament can amend every Article of the Constitution . Thus, Rule of law prevailed. Justice H R Khanna played a vital role in preserving the Rule of law although he concurred with the majority decision.
Assault on Judicial Independence
As soon as the Fundamental rights case’s Judgment was delivered on 24th April 1973, Mr. Justice A N Ray, who was fourth in seniority amongst Supreme Court judges, was appointed chief Justice of India, bypassing the long-established convention based on seniority for appointment to this office. The three superseded judges, Justices J M Shelat, K S Hegde and A N Grover, promptly resigned. Justice Ray had given dissenting judgments in favor of the Government in most landmark cases, including the Bank Nationalization case and Privy Purses case. After the Proclamation of the internal emergency, independent-minded High Court judges were transferred, the press was censored and muzzled, and orders were passed prohibiting publication of judgments and court proceedings.
Habeas Corpus case: A Black Mark on Rule of Law
The widespread detentions of political leaders and prominent citizens led to a spate of Habeas Corpus Petition seeking the invalidation of detention orders, in courts all over India. Nine High Courts took the correct view that, notwithstanding the suspension of fundamental rights under Art 14, 19, 21 & 22, the petitions were maintainable. The High Courts judicially reviewed detentions orders inter alia on the grounds of ultra vires, breach of statutory provisions, mala fide or other illegalities.
The Supreme Court in A D M Jabalpur v. Shivkant Shukla by majority 4:1 over turned the verdicts of these High Courts and held that neither detainees nor anyone on their behalf had right to move the courts for habeas corpus in view of the suspension of fundamental rights. This decision even excluded challenges to detention orders on the Act or was mala fide i.e. not passed by an authorized person or issued against a wrong person. The majority consisted of Chief Justice A N Ray, Justice M H Beg, Y V Chandrachud and P N Bhagwati – the lone dissenter was Justice H R Khanna.
Strong Comments were made against the majority judgments and the role of Justice H R Khanna was appreciated and applauded all over the world. Mr. V M Tarkunde, an eminent lawyer and editor of The Radical Humanist, characterized the majority judgments as “Judicial Suicide”. H M Servai, a leading Commentator on Constitutional Law and former Advocate General of Bombay wrote: The Four judgments delivered in the darkest hour of India’s history independence, and they made that darkness complete…Ordinary men and women could understand Satan saying, ‘evil be thou my good’, but they were bewildered and perplexed to be told by four learned judges of the Supreme Court that in substance the founding fathers had written into the emergency provisions of our constitution ‘lawlessness be thou our law ’.
The Supreme Court reached its finest hour in the unforgettable dissent of Justice H R Khanna. He refused to bow down to the powers that be and immortalized the great spirit of the judiciary and the rule of law in his stinging dissent, observing: It has been argued that suspending the right of a Person to move any court for enforcement of right to life and personal liberty is done under a constitutional provision and therefore it cannot be said that the resulting situation would be the absence of the rule of law. This argument, in my opinion, cannot stand close scrutiny for it tries to equate illusion of the rule of law with the reality of rule of law . In his autobiography, Justice Khanna recounts that he told to his Younger sister Santosh, “I have prepared a judgment which is going to cost me the chief Justiceship of India ”. That came to be true and Khanna was Superseded b Justice Beg during Emergency. He thereupon resigned.
But any research on Rule of law is incomplete without a reference to the editorial in the New York Times which appeared on April 30, 1976, shortly after Habeas Corpus case. The Paper wrote: if India ever finds its way back to the freedom and democracy that were proud hallmarks of its first 18 years as an independent nation, someone will surely erect a monument to Justice H R Khanna of the Supreme Court. It was Mr. Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the court’s decision upholding the right of PM Indira Gandhi’s Government to imprison political opponents at will and without court hearings. Indian democrats are likely to remember only in infamy the four judges who obediently over turned the decisions of a half dozen lower courts scattered across India which had ruled in defiance of the government…..But they will long cherish the lonely judge who said, in words reminiscent of other enduring declarations for freedoms: “….The Principle that no one shall be deprived of his life and liberty without the authority of law is rooted in the consideration that life and liberty are precious possessions” ….The submission of an independent judiciary to absolute government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court’s decision appears close to utter surrender.
How the emergency came to an end and Indira Gandhi was defeated at the polls is another story. Neither Chief Justice Ray nor Chief Justice Beg were able to live down their judgments. Justice Chandrachud and Justice Bhagwati both became the Chief Justice of India after the Emergency was withdrawn on the basis of seniority but they never commanded the respect, affection and reverence which Justice Khanna Commanded. Justice Khanna was in the Mould of Chief Justice Coke who could withstand “the frowns of power” and the refused to be “Craven and cringing”.
Rule of Law as unfolded by the Indian Judiciary
The Indian Supreme Court is a forum with unparalleled vast general jurisdiction. It is not a constitutional court, though much of its business relates to issues concerning the enforcement of fundamental rights. The law laid down by the Court is declared to be binding on all courts throughout the territory of India and by necessary implication upon citizens and state actors. Further, not merely all authorities of the state are obligated to aid the enforcement of the apex judicial decisions but also the Court is empowered to do “complete justice”, an incredible reservoir of plenary judicial power, which it has used amply in the past two decades. Legislative overruling of apex judicial decisions occurs but infrequently; however, an extraordinary device called the 9th Schedule has been invoked since the adoption of the Constitution to immunize statutes placed in it from the virus of judicial review, even when ex facie the legislations inscribed therein remain fundamental rights violative. In a recent decision, the Supreme Court has assumed powers of constitutional superintendence over the validity of laws thus immunized.
In the early years, the Court took the view that although the Directives cast a “paramount” duty of observance in the making of law and policy, their explicit non- justiciability meant that the rights provisions overrode the Directives. This generated high –intensity conflict between Parliament and the Court, resulting in a spate of constitutional amendments. In the process, much constitutional heat and dust has also been generated, in the main over a “conservative” judiciary that seemed to frustrate a “progressive” Parliament committed to agrarian reforms and redistribution leading to Court “packing” Indian – style .
Over time, two kinds of adjudicative responses developed. First, the Supreme Courts began to deploy the Directives as a technology of constitutional interpretation, favouring an interpretative style that fostered, rather than frustrated, the Directives. This “indirect” justiciability has contributed a good deal towards fructification of the substantive/ “thick” versions of the Indian Rule of Law. Second, in its more activist incarnation since the eighties, the Court has begun to translate some Directives into rights. Perhaps, a most crucial example of this is the judicial insistence that the Directive prescribing free and compulsory education for young persons in the age group 6-14 is a fundamental right . The Court here generated a constitutional amendment enshrining this right as an integral aspect of Article 21 rights, to life and liberty.
Simultaneously with the adoption of the Constitution, Indian Justices strove to erect fences and boundaries to the power of delegated legislation (processes by which the executive power actually legislates.) They conceded this power but with a significant accompanying caveat: the rule-making power of the administration ought not to usurp the legislative function of enunciation of policy, accompanied by prescriptive sanctions. Thus came into being the “administrative law explosion”, where Justices did not so much invalidate delegated legislation but vigorously policed its performance. The executive may make rules that bind; but courts made it their business to interrogate, and even invalidate, specific exercises of administrative rule-making. A stunning array of judicial techniques over the review of administrative action has been evolved.
Justices asserted judicial review power over the constitutionality of legislative performances. Laws that transgressed fundamental rights or the federal principle and detail activated the “essence” of judicial review power. Whenever possible the Supreme Court sought to avoid invalidation of laws; it adopted the (standard repertoire of “reading down the statutory scope and intendments so as to avoid conflict and by recourse to the peculiar judicial doctrine of ‘harmonious construction”). But when necessary, enacted laws were declared constitutionally null and void. And even when resuscitated by legislative reaffirmation, they were resubjected to the judicial gauntlet of strict scrutiny. The instances of judicial invalidation of statutes far exceed in number and range the experience of judicial review in the Global North
IV. Conclusion & Suggestion
With the above analysis of the concept in UK as well as in India it can be concluded that the Dicey’s Concept of Rule of Law is idealist in Nature which is quite impossible to implement in the nation like India. According to Dicey’s theory justice must be done through known principles of law and not by principles of men. He believes that where there is discretion there is always a room for arbitrariness. Our framers of the constitution while incorporating the parent act tried to involve the concept into the Constitution of India but the intention with which our framers incorporated the concept have gone invain.
Today, we need the rule of law for punishing deviations and lapses from the code of conduct and standards of behaviour which the community speaking through its representatives has prescribed as the law of the land. Once an impression comes to prevail that it is difficult to secure the conviction of the actual culprits in a court of law, the victims of the offence or their close relatives, would look to extra-legal methods to settle scores with the culprits. Such a situation would necessarily be a precursor to collapse of administration of criminal justice and result in a state of chaos and anarchy. Every effort has, therefore, to be made to eliminate or in any case minimise political and other extraneous interference in the investigation of the crimes. Unless we can do that, the rule of law for which we have such ideological affinity would suffer grievous casualty and be subjected to severe strain.
Today in India, the strange phenomenon and paradox is that while on ideological plain democracy is supposed to strengthen the rule of law and the administration of criminal justice, in actual practice, the electoral process which is an integral part of democracy is undermining the rule of law and due administration of criminal justice. This must be put to an end. The traditional concept in all civilized liberal nations is that democracy and rule of law are close allies of each other. It has to be the effort of all well-meaning persons to ensure that their kinship is not weakened and that each of them continues to lend strength to the other.
The concept of rule of law does not merely mean formal legality which assures regularity and consistency in the achievement and enforcement of democratic order, but justice based on the recognition and full acceptance of the supreme value of the human personality and guaranteed by institutions providing a framework for its fullest expression.
Despite its inconsistencies, its crudities, its delays and its weaknesses, Rule of Law still embodies so much of the results of that disposition as we can collectively impose. Without it one cannot live; only with it one can insure the future which by right is ours. The best of man's hopes are enmeshed in its process; when it fails they must fail; the measure in which it can reconcile our passions, our wills, our conflicts, is the measure of our opportunity to find ourselves. Man may be a little lower than the angels, he has not yet shaken off the brute and the brute within is apt to break loose on occasions. To curb and control that brute and to prevent the degeneration of society into a state of tooth and claw, what is required is the ‘Rule of Law’.
1. Massey I P (2008). Administrative law, Lucknow: Eastern Book Company.
2. Takwani CK (2008). Lectures on Administartive law, Lucknow: Eastern book Company.
3. Venkat Iyer (2008). Citizen’s Rights and Rule of Law: Problems and prospects, Essays in Memory of Justice J C Shah, Nagpur: Lexis Nexis Butter Worths, Wadhwa.
4. Agnes Hurwitz & Reyko Huang (2009). Civil War and Rule of Law, USA: Lynne Rienner Publishers, Inc.
5. Friedrich von Hayek (1994). The Road to serfdom, Chicago: University of Chicago Press.
6. Dyzenhaus David (1999). Recrafting the Rule of Law: The Limits of Legal Order, USA: Hart Publishing oxford.
7. Flathman Richard (1994). Liberalism and the suspect Enterprise of political Institutionalism: The case of the Rule of Law, New York: New York University Press.
8. Seervai H M (1993). Constitutional Law of India, Bombay: Tripathi Publishers.
9. Khanna H R (1987). Neither Roses nor Thorns, Lucknow: Eastern Book Company.
10. Pandey J N (2008). The Constitutional Law of India, Allahabad: Central Law Agency.
11. Dicey A V (1985). An Introduction to the Study of the law of constitution, New Delhi: Universal Law Publishing Co Pvt. Ltd
12. Sathe S. P. (2002). Judicial Activism in India, New Delhi: Oxford University Press.
13. Baxi U. (1980). The Indian Supreme Court and Politics, Lucknow: Eastern Book Company.
1. Pendse, M L. Citizens Rights and Democracy in India, Citizen’s Rights and Rule of Law: Problems and prospects, Essays in Memory of Justice J C Shah. PP 95-110.
2. Sachar, Rajinder. Indian Democracy and the Rule of law, Citizen’s Rights and Rule of Law: Problems and prospects, Essays in Memory of Justice J C Shah. PP 111-120.
3. Mathew Stephenson, “The Rule of law as a goal of Development policy”
4. Mani, Rama. ‘Exploring the rule of law in theory and practice’, Civil War and Rule of Law. PP 21-45
5. Shah JC. ‘The Rule of law and the Indian Constitution’, Citizen’s Rights and Rule of Law: Problems and prospects, Essays in Memory of Justice J C Shah. PP 139-200.
6. Divan Anil. Citizen’s Rights and the Rule of Law, Citizen’s Rights and Rule of Law: Problems and prospects, Essays in Memory of Justice J C Shah. PP 5-29.
7. Jethi Mishita. A Modern day critique of the rule of law,
8. Baxi Upendra. Rule of law in India, http://socialsciences.scielo.org/pdf/s_sur/v3nse/scs a01.pdf
9. Kumar C. Raj. International Human Right Perspective on the Right to Education: Integration of Human Rights and Human Development in the Indian Constitution in Tulane International and Comparative Law. Vol-12, PP 237
10. Joseph Raz. The Rule of Law and its Virtue, The Law Quarterly Review, PP 195-209
11. Khanna H R. ‘Rule of Law & democracy-friends or foes?
12. Khanna H R. ‘Rule of Law’
1. Shankari Prasad v. Union of India, AIR 1951 SC 455
2. Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
3. Glok Nath v. State of Punjab, AIR 1971 SC 1643
4. Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461
5. A D M Jabalpur v Shivkant Shukla, AIR 1976 SC 1207
6. Church of Scientology v Woodward, (1983) 57 ALJR 42
7. Chu Kheng Lim v Minister for Immigration, (1992) 176 CLR 1
8. Wilkes v. wood, 1763 19 St Tr 1153
9. Entick v. Carrington, 1765 19 St Tr 1030
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