lawyers in India

Rule of law - A reflection upon we the people and beyond

Written by: Chhavi Agarwal - BA LLB at HNLU, Raipur
Constitutional Lawyers in India
Legal Service
  • Thomas Paine in his pamphlet Common Sense quoted, THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law OUGHT to be King; and there ought to be no other.

    Rule of law can be traced back to Aristotle and has been championed by Roman jurists; medieval natural law thinkers; Enlightenment philosophers such as Hobbes, Locke, Rousseau, Montesquieu in their theory of social contracts and the American founders; German philosophers Kant, Hegel and the nineteenth century advocates of the rechtsstaat; and in this century such ideologically diverse figures as Hayek, Rawls, Scalia, Jiang Zemin and Lee Kuan Yew. The term Rule of Law is derived from the French phrase la principe de legalite (the principle of legality) which refers to a government based on principles of law and not of men. It also means that power should be exercised within the statutory ambit and purported exercise of it would not just be ultra vires, but in a true sense of term arbitrary. According to A V Dicey whenever there is discretion there is room for arbitrariness. Even in the most autocratic form of ruling there is a legal framework according to which the government works. In a monarch this concept developed to control the power of arbitrary powers of the monarchs who claims to have divine powers. Same way in a democracy it ensures that the holders of public policy must be able to justify publicly that the exercise of powers is socially just and according to law.

    Presently, the concept has altered into a new corollary stating that the holders of public powers must be able to publicly justify that the exercise of power is legally valid and socially just. It is the present day modernized name for natural law. In jurisprudence, it was known as 'jus naturale' by the Romans, 'law of god' by the medievalists. Coming ahead in time, Rousseau, Hobbes and Locke called it 'social contract' or 'natural law'. The modern man refers to it as 'the rule of law'.

    Efforts to specify the meaning of the Rule of Law commonly appeal to values and purposes that the Rule of Law is thought to serve. First, the Rule of Law should protect against anarchy and the Hobbesian war of all against all. Second, the Rule of Law should allow people to plan their affairs with reasonable confidence that they can know in advance the legal consequences of various actions. Third, the Rule of Law should guarantee against at least some types of official arbitrariness.

    Dicey's Concept of Rule of Law

    In his book, the law and the constitution, published in the year 1885, Dicey attributed three meanings to the doctrine of rule of law:
    1. Supremacy Of Law: It implies the absolute power of law, dominance and the supremacy of it. It is opposed to the influence of arbitrary power and wide discretionary power. In Dicey's words, “wherever there is discretion, there is room for arbitrariness and that in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects.

    2. Equality Before The Law: The law administered should be the ordinary rule of law applicable to all the people equally irrespective of caste and creed or religion. This doctrine has been also included in the Indian Constitution in the form of Article 14. The excerpts of which can also be seen in Article 15. Dicey was of the view that, any encroachment on the jurisdiction of the courts and any restrictions on the subject's unimpeded access to them are bound to jeopardize his rights.

    3. Predominance Of Legal Spirit: The Constitution is not the source but the consequence of the rights of the individuals. Here, Dicey emphasized on the role of the courts. Without an authority to protect and enforce the rights conferred upon citizen, their inclusion in a document etc. is of little value. Mere inclusion is not authoritative and its provisions might be abridged, trampled or overlooked.

    Adoption of Rule of Law In India and Supreme Court Judgments:
    Fundamental rights enshrined in part III of the constitution is a restriction on the law making power of the Indian Parliament. It includes freedom of speech, expression, association, movement, residence, property, profession and personal liberty. In its broader sense the Constitution itself prescribes the basic legal system of the country. To guarantee and promote fundamental rights and freedoms of the citizens and the respect for the principles of the democratic State based on rule of law. The popular habeas corpus case, ADM Jabalpur v. Shivakant Shukla is one of the most important cases when it comes to rule of law. In this case, the question before the court was 'whether there was any rule of law in India apart from Article 21'. This was in context of suspension of enforcement of Articles 14, 21 and 22 during the proclamation of an emergency. The answer of the majority of the bench was in negative for the question of law. However Justice H.R. Khanna dissented from the majority opinion and observed that "Even in 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.."

    Applied to the powers of the government, this requires that every government authority which does some act which would otherwise be a wrong (such as taking a man's land), or which infringes a man's liberty (as by refusing him planning permission), must be able to justify its action as authorized by law -and in nearly every case this will mean authorized directly or indirectly by Act of Parliament.

    The secondary meaning of rule of law is that the government should be conducted within a framework of recognized rules and principles which restrict discretionary powers. The Supreme Court observed in Som Raj v. State of Haryana that the absence of arbitrary power is the primary postulate of Rule of Law upon which the whole constitutional edifice is dependant. Discretion being exercised without any rule is a concept which is antithesis of the concept.
    The third meaning of rule of law highlights the independence of the judiciary and the supremacy of courts. It is rightly reiterated by the Supreme Court in the case Union of India v. Raghubir Singh that it is not a matter of doubt that a considerable degree that governs the lives of the people and regulates the State functions flows from the decision of the superior courts.

    Although, complete absence of discretionary powers, or absence of inequality are not possible in this administrative age, yet the concept of rule of law has been developed and is prevalent in common law countries such as India. The rule of law has provided a sort of touchstone to judge and test the administrative law prevailing in the country at a given time. Rule of law, traditionally denotes the absence of arbitrary powers, and hence one can denounce the increase of arbitrary or discretionary powers of the administration and advocate controlling it through procedures and other means. Rule of law for that matter is also associated with supremacy of courts. Therefore, in the ultimate analysis, courts should have the power to control the administrative action and any overt diminution of that power is to be criticized. The principle implicit in the rule of law that the executive must act under the law and not by its own fiat is still a cardinal principle of the common law system, which is being followed by India.

    In the common law system the executive is regarded as not having any inherent powers of its own, but all its powers flow and emanate from the law. It is one of the vital principles playing an important role in democratic countries like India. There is a thin line between judicial review and judicial activism. Rule of law serves as the basis of judicial review of administrative action. The judiciary sees to it that the executive keeps itself within the limits of law and does not overstep the same. Thus, judicial activism is kept into check. However there are instances in India where judiciary has tried to infringe upon the territory of the executive and the legislature. A recent example of this would be the present reservation scenario for the other backward classes. The judiciary propagated that the creamy layer should be excluded from the benefits of the reservation policy, whereas the legislature and the executive were against it.

    As mentioned before Dicey's theory of rule of law has been adopted and incorporated in the Indian Constitution. The three arms judiciary, legislature and executive work in accordance with each other. The public can approach the high courts as well as the Supreme Court in case of violation of their fundamental rights. If the power with the executive or the legislature is abused in any sorts, its malafide action can be quashed by the ordinary courts of law. This can be said so since it becomes an opposition to the due process of law. Rule of law also implies a certain procedure of law to be followed. Anything out of the purview of the relevant law can be termed as ultra vires.

    No person shall be deprived of his life or personal liberties except according to procedure established by law or of his property save by authority of law. The government officials and the government itself is not above the law. In India the concept is that of equality before the law and equal protection of laws. Any legal wrong committed by any person would be punished in a similar pattern. The law adjudicated in the ordinary courts of law applies to all the people with equal force and bidingness. In public service also the doctrine of equality is accepted. The suits for breach of contract etc against the state government officials, public servants can be filed in the ordinary courts of law by the public.

    In Chief settlement Commr; Punjab v. Om Prakash, it was observed by the supreme court that, “In our constitutional system, the central and most characteristic feature is the concept of rule of law which means, in the present context, the authority of law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the matter into notice.”

    In India, the meaning of rule of law has been much expanded. It is regarded as a part of the basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by Parliament. The ideals of constitution; liberty, equality and fraternity have been enshrined in the preamble. Constitution makes the supreme law of the land and every law enacted should be in conformity to it. Any violation makes the law ultra vires. In Kesavanda Bharti vs. State of Kerala (1973) - The Supreme Court enunciated the rule of law as one of the most important aspects of the doctrine of basic structure.

    In Menaka Gandhi vs. Union of India - The Supreme Court declared that Article 14 strikes against arbitrariness. In Indira Gandhi Nehru vs. Raj Narahr - Article 329-A was inserted in the Constitution under 39th amendment, which provided certain immunities to the election of office of Prime Minister from judicial review. The Supreme Court declared Article 329-A as invalid since it abridges the basic structure of the Constitution.

    In the case of Binani Zinc Limited Vs. Kerala State Electricity Board and Ors. (2009) Justice S B sinha declare that “It is now a well settled principle of law that the rule of law inter alia postulates that all laws would be prospective subject of course to enactment an express provision or intendment to the contrary.” In the case of Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil the ratio laid down was “If the rule of law has to be preserved as the essence of the democracy of which purity of elections is a necessary concomitant, it is the duty of the courts to appreciate the evidence and construe the law in a manner which would subserve this higher purpose and not even imperceptibly facilitate acceptance, much less affirmance, of the falling electoral standards. For democracy to survive, rule of law must prevail, and it is necessary that the best available men should be chosen as people's representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values who win the elections on a positive vote obtained on their own merit and not by the negative vote of process of elimination based on comparative demerits of the candidates.”

    In the case of Sukhdev v. Bhagatram Mathew J. declared that “Whatever be the concept of the rule of law, whether it be the meaning given by Dicey in his "The Law of the Constitution" or the definition given by Hayek in his "Road to Serfdom" and "Constitution of liberty" or the exposition set-forth by Harry Jones in his "The Rule of Law and the Welfare State", there is, as pointed out by Mathew, J., in his article on "The Welfare State, Rule of Law and Natural Justice" in "Democracy, Equality and Freedom," "substantial agreement is in juristic thought that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power, wherever it is found". It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes not difference whether the exercise of the power involves affection of some right or denial of some privilege."

    In Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors a Constitution Bench of this Court has laid down the law in the following terms:
    “Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution.”

    In the case of Amlan Jyoti Borooah Vs.State of Assam. It was held by S B Sinha that: “Equity must not be equated with compassion. Equitable principles must emanate from facts which by themselves are unusual and peculiar. A balance has to be struck and the Court must be cautious to ensure that its endeavour to do equity does not amount to judicial benevolence or acquiescence of established violation of fundamental rights and the principles of Rule of law.” Moreover, In the case of Bachan Singh v. state of punjab Singh Justice Bhagwati has emphasized that rule of law excludes arbitrariness and unreasonableness. To ensure this, he has suggested that it is necessary to have a democratic legislature to make laws, but its power shoul not be unfettered, and that there should be an independent judiciary to protect the citizens against the excesses of executive and legislative power.

    In addition to this in P. sambamurthy v. state of Andhra Pradesh the SC has declared a provision authorizing the executive to interfere with tribunal justice as unconstitutional characterizing it as “violative of the rule of law which is clearly a basic and essential feature of the constitution”.

    Yet another case is of Yusuf Khan v. Manohar Joshi in which the SC laid down the proposition that it is the duty of the state to preserve and protect the law and the constitution and that it cannot permit any violent act which may negate the rule of law.

    Hence, it is quiet evident that the concept of rule of law is gaining importance and attention and judicial efforts are made to make it more strong.

    The opposite of rule of law is rule of person. The rule of law is necessarily rule by men, for the law is inert. Men are necessary to enforce the law, but all men are prone to interpret the law through their own knowledge, interpretation, and ethical sense. At best a set of laws are a well-intended guidebook for the application of justice by the rule of men. In spite of an apparently enviable position of the subjects in almost all the fields of industry, commerce, education, transport, banking, insurance etc. there is interference by the administrative authorities with the actions of the individuals, companies and other corporate and non corporate bodies, observes Justice Ramaswamy. There is a large amount of discretion involved in the administrative work. For e.g.: for the purpose of national planning the executive is armed with vast powers in respect of land ceiling, control of basic industries, taxation, mobilization of labour etc. Even Parliament passes acts which are opposed to personal liberty such as preventive detention act or maintenance of Internal Security act 1971, national security act 1980. Even the simplest thing like discriminate payment of employees can be termed as inequality, as opposed to rule of law. The case Frank Anthony Employees' Union v. Union of India is concerned with discrimination in payment to employees, which was held to violate the person's right to equality and unreasonable classification of pensioners was held to be arbitrary in the case Nakara v. Union of India.

    The main characteristic of the concept of rule of law is 'equality'. This itself has been criticized widely. the government possesses the inherent authority to act purely on its own volition and without being subject to any checks or limitations. Total equality is possible to prevail in general conditions, not only in India but in any country for that matter. For e.g.
    • No case can be filed against the Bureaucrats and Diplomats in India
    • No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a state, in any court during his term of office. No process for the arrest or imprisonment of the President, or the Governor of a state, shall issue from any court during his term of office.
    • The privileges enjoyed by the members of parliament with respect to legal actions against them.
    • There are separate tribunals for administrative cases.

    Thus, on the basis of these points one can say that equality in India is not prevalent in its concrete sense. The Dicey's concept of rule of law has also been criticized. Law changes with time. As the society evolves, even the law of the country should develop. Some view the rule of law as nothing other than a tool of the powerful to maintain the status quo in the legal system. The general consensus is that the status quo, far from being neutral, serves to protect the powerful at the expense of the disempowered. This lack of neutrality in the rule of law runs contrary to the ideal, traced to Aristotle, that in light of the law every person should be equal; that it is one's humanity, not one's status in society, that requires that laws be justly applied. More extreme critics claim that "[t]he liberal paradigm has destroyed the rule of law." The rationale behind this statement is that, considering the real state of the world, many equate the rule of law with legality. However, this is a flawed equation as "[l]egality simply means that there are laws and says nothing about the quality of those laws." Hence, there are many lacunas in the concept of rule of law which servers the reason of non-implementation of the concept properly.

    The rule of law is an idea about law, justice, and morality. It considers what laws, norms, rules, procedures, systems, and structures should be and what they should not be. Norms should be proclaimed publicly by the peoples and/or their appropriate representatives. Inherent in this formulation are three realities. One is that the law governs people as well as the government itself. Next, persons should obey the law. Third is that the norms we call law need to be obeyable - not only in the sense of being known, knowable and predictable, but in the deepest sense of being just. It is a necessary element for democracy and good governance and also assist to facilitate stability and peace. According to some, it may help prevent wars from occurring in the first place. Moreover, Human rights can be considered as a check over the criticism of rule of law i.e. absolutism and despotism.

    The rule of law in the Indian society has not achieved the intended results is that the deeply entrenched values of constitutionalism or abiding by the Constitution of India have not taken roots in the society. Corruptions, Terrorism etc. are all antithesis to Rule of Law. In recent times, common law traditions, the Constitution of India, and the perseverant role of the judiciary have contributed to the development of rule of law. But on occasions we have slipped back into government by will only to return sadder and wiser to the rule of law when hard facts of human nature demonstrated the selfishness and egotism of man and the truth of the dictum that power corrupts and absolute power corrupts absolutely. A few examples of how our judicial system has upheld the rule of law and ensured justice is clearly seen in the creation of new avenues seeking remedies for human rights violations through PIL pleas and promotion of genuine interventions by the judiciary in the areas of bonded and child labour, prostitution, clean and healthy environment etc. but on the darker side there have been violations of fundamental rights as well. For e.g. The discrimination of eunuchs based on their class and gender makes the community one of the most disempowered groups in Indian societ Eunuchs might have an accepted place in Indian society, but it is a place pretty much at the bottom of the social heap making them not just a sexual but also a highly deprived social minority. The recent example is of the singur incident a Division Bench of the High Court comprising Honourable Chief Justice S S Nijjar and Honourable Justice Pinaki Chandra Ghosh also took suo moto note of the incident.

    it seems as if the Police Department which is under the control of the Home Department is not even aware of the existence of Article 21 of the Constitution of India... This Article specifically guarantees that 'no person shall be deprived of his life or personal liberty except according to procedure established by law'. Oblivious of the aforesaid guarantee, the police has resorted to gun firing on a large crowd protesting against the proposal to acquire their land.” There was a total absence of rule of law in west Bengal during this period. For a purposeful rule of law to exist in a society, democracy is required and for a democratic state the prevalence of rule of law is required. Thus, it can be concluded that democracy and rule of law are interdependent and one cannot flourish without the other. India is world's largest democracy; however the prevalence of rule of law is generally under threat here. It is imperative that efforts are made to further nurture and preserve a rule of law society in India without which our fundamental credentials as a democracy will be seriously undermine.

    1. Dicey: Law of the Constitution, 8th Ed
    2. Shukla V. N.; THE CONSTITUTION OF INDIA, Eastern Book Company, Lucknow, 2004
    3. Dicey, A. V.; THE LAW AND THE CONSTITUTION, 1915

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