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Rule of Law In India: An Analysis

The term Rule of Law is derived from a French phrase La Principe de Legalite meaning the Principle of legality and referring to a Government based on principles of Law and not men.[1] The Black’s Law Dictionary[2] defines it as Legal Principles of day to day application, approved by the Governing bodies or authorities and expressed in the form of logical proposition.

According to Prof. A.V. Dicey in his book The Law of the Constitution (1885) defined The Rule of Law as the the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness or even of wide discretionary authority on the part of Government.[3] Legislature, Executive and Judiciary helps to maintain the system of checks and balances and ensures the Laws are fulfilling the purposes they were made for. No one is subject to any action by any government agency other than in accordance with the law and the model litigant rules.[4] The judiciary is independent and impartial.

This concept is very old and its roots can be traced in the history of governance. In the thirteenth century, Bracton, who was a judge during the reign of Henry III introduced this concept without christening it. He wrote: .....The king himself ought to be subject to God and the law, because law makes him king.

The Magna Carta, Mayflower Compact, English bill of rights, Cato’s Letter, Common Sense played major roles in the evolution of this concept .In India, the concept of Rule of Law can be traced back to the Upanishad. Its traces can also be found in the epics like Mahabharata and Ramayana, Ten Commandments, Dharma Chakra and other seminal documents. Modern concept was developed by the International Commission of Jurists, known as Delhi Declaration, 1959, which was later on confirmed at Lagos in 1961.[5]

In the 4th century BC, Aristotle distinguished ‘the Rule Of Law’ from ‘that of any individual’, showing that the concept has been central to political and legal thought. In the 18th century the French political philosopher Montesquieu elaborated a doctrine of the rule of law that contrasted the legitimate authority of monarchs with the caprice of despots. It has since profoundly influenced Western liberal thought. The emphasis was laid on the need for the rules and procedures that would ensure that laws are used for the protection of rights and not just a means of legitimising the use of powers.

Contents
Dicey in his work elaborately defined the proposition of Rule of Law and gave it three meanings.[6] The first interpretation is Supremacy of Law, it is the central characteristic of Common Law. According to this principle the Law is the supreme authority and opposes the influence of any kind of arbitrary and discretionary power on the part of the Government. It lays down that a person could be penalised only if he breached an established legal rule which has been proved in the Court of Law.

The definition given by Dicey further includes Equality before the Law; it establishes the principle that all are equal in the eyes of Law and are equally subject to the law of the land. Dicey opposed the enjoying of privileges and immunities by any kind of officials. He also denies the requirement for various tribunals or special courts to deal with cases of Government and citizens as propounded in the Droit Administratif.

Lastly, the definition supports Predominance of Legal Spirit. It is not in the support of applying the words of Law, it rather emphasises on interpreting the real intention behind the making of any law and focussing on the real intent behind the making of Law. It would lead to reduction in arbitrariness and faults in the judgement. Rights would be secured more adequately if instead of merely writing in the Constitution they are subjected to the interpretations of the Courts and Judges. It means that the rights of the individual are not only ensured by the guarantees set down in a formal document but by the ordinary remedies available against those who unlawfully interfere with someone’s liberty.

Wade also mentioned that:
Government is the subject of Law, rather than the Law being the subject of the Government
.

The Rule of Law is applied far and wide and various features of the Constitution show its acceptance. The Constitution of India contains various features that show the application of the Rule of Law in the Indian context some of them are Preamble, Fundamental Rights, DPSPs, Doctrine of basic Structure, Universal Adult Franchise and Judicial Review. Part- III and all Fundamental Rights come under the Rule of Law, which are enforceable by Law and one can approach the High Court or the Supreme Court under Article 32& 226 on their violation. The Right to Freedom of Speech and Expression forms part of the Fundamental Rights and it is also recognized as a Human Right by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).

In the case of Menaka Gandhi Vs Union Of India, Justice P. N. Bhagawati expressed the importance of Freedom of Speech and Expression in case of a democratic form of Government.[7] Further in the case of People’s Union for Civil Liberties Vs. UOI, it was held by the Supreme Court that telephone tapping is allowed unless it falls within grounds of Article 19(2) and talking over telephone comes under the ambit of the above right, further increasing its scope.

It can be suspended according to the Article 358 of the Constitution. The First amendment of the U.S Constitution protects the Freedom of Speech and Expression. Article 13 has the power to declare any Law that violates the Constitutional provisions as unconstitutional and void. According to Article 32, the Supreme Court has power to issue various writes namely, Habeas Corpus, mandamus, prohibition, quo warranto and certiorari.

It also has the power of judicial review to prevent any ultra vires law. Article 15 and 16 as Right to Equality and Article 19, 20 and 21 in form of Right to Life and Liberty are provisions of our Constitution to enforce the Rule of Law. The dissenting opinion of Justice H.R. Khanna in the case of ADM Jabbalpur Vs. Shivkant Shukla[8] clearly stated that the State has got no power to deprive a person of his life and liberty as provided by the Article 21 without the authority of Law.

Not only the provisions in the Constitution of India provide for the application of Rule of Law but it is also implemented by the Judiciary while giving its interpretations to such provisions, which further act as precedents. It was clearly stated by the Supreme Court in A.K. Kraipak V. Union of India [9]that ours being a welfare State, it is regulated and controlled by the Rule Of Law.

 Further in Indira Nehru Gandhi v. Raj Narain[10] (1975) Rule of law was held to be the basic feature of the Indian Constitution. Keshavananda Bharti Vs. State Of Kerela [11](1967) is a landmark decision in this context. It laid down that Article 368 does not provide for absolute power of ammendability and incorporated the Basic Structure Doctrine. It diluted its judgement in the Golak Nath case that Parliament could not amend or alter any Fundamental Right.[12]

Hussainara Khatoon v. State of Bihar (1979) provided for the Right to a speedy trial,[13] M.H. Hoskot v. State of Maharashtra (1978) provided for the Right to free legal aid,[14] S.R. Bommai Vs Union of India (1994) laid down the guidelines for imposition of President’s rule under Article 356[15], PUCL v/s UOI NOTA (2013) provided for the Right to negative vote. The Section 125 of Code Of Criminal Procedure was invoked in Shah Bano Case (1985) in providing her with maintenance money, similar to alimony. [16]

The Nirbhaya Case(2012) amended Rape Law to go beyond penile-vaginal intercourse, this showed that Laws have always been accustomed to the changing times and it’s main motive is to provide Justice. Naz Foundation v. Govt. of NCT of Delhi declared the criminalization of consensual sex between adults as a crime to be violative of Fundamental Rights.[17] With the advent of the judgment of Navtej Johar Vs. Union of India, Section 377 of IPC was decriminalised.[18]

The Supreme Court in the Vodafone case also stated that ‘it is for the Courts to try to stretch the law to meet hard cases is not merely to make bad law but to run the risk of subverting the rule of law itself.’ [19] In Secretary, State of Karnataka and Ors. V. Umadevi and Ors[20]., the court withheld from passing an order because it was in violation of Article 14 of the Indian Constitution.

The application of this doctrine is not just limited to India, it can also been seen in England. Though, there is no written constitution, the rule of law is applied in concrete cases. In England, the Courts are the guarantors of the individual rights. Rule of law establishes an effective control over the executive and administrative power.

The concept can be seen to be applied in the working of United Nations also. Its Preamble mentions its aim to establish a sense of respect and obligations towards International treaties and other regulations.[21] It was also declared in the Universal Declaration of Human Rights 1948 that Human Rights should be protected by Rule of Law. The United Nations uses its multiple organs to ensure the proper implementation of Rule Of Law.

The General Assembly is a open for deliberations and all its members enjoy equal voting rights. To ensure the compliance of various International Laws, International Court of Justice is set up. Other agencies like UNHCR, UNODC, UNDEF promote the Rule of Law and encourage participation of all groups in democratic process.

Analysis
It was declared in Delhi Declaration, 1959 that the doctrine essentially involves that the Government should exercise its functions in such a manner that the dignity of a man is always upheld. Hayek takes it as an opportunity wherein the people can guide their actions by clear formulation of Law and not by the arbitrary decisions of any Government.[22] Dicey states that they are no separate courts for the trial of the Government servants in England. He was strictly against the Droit Administratif system, prevalent in France.

This theory was further propounded by Joseph Raz (1977). He made his doctrine in the form of 8 postulates. A.V. Dicey and Raz shared common grounds also. His principles lay down the requirements of an individual’s behaviour and further minimize the danger that could possibly result from the exercise of discretionary power in an arbitrary manner.[23]

During the time when Dicey gave his doctrine, it was not completely accepted and Crown still exercised discretionary powers. Dicey instead of disapproving arbitrary powers professed that the Administrative authorities should not be given any powers. There was also no demarcation made as to what constituted arbitrary powers and what not. The nature of Droit Administratif which was successful in France, was not understood by him properly. The doctrine was more concerned with the due procedure of law rather than the context of laws. According to Dicey’s theory torture will also be valid if it is according to the provisions of the Law.

The doctrine of Rule of Law has always been a vital part of the Indian judiciary. While drafting of the Constitution of India provisions were also taken from USA and England. The Constitution of India is always taken as the Grundnorm of the country and no one is above it and any act done by either of the three organs of the government is treated to be ultravires.

Rule of law serves as a system of checks for all the administrative action. The Judiciary ensures that the organs of the Government do not overstep their jurisdiction. Thus, judicial activism is kept into check. But in practise, there have been instances in India where judiciary has tried to infringe upon the territory of the other two organs. A recent example of this would be the frequently debated reservation policy for the other backward classes.

The judiciary was in favour of removing the creamy layer benefiting from the reservation policy, whereas the legislature and the executive were against it. The doctrine helpes the administrative authorities confined to their limits by acting as a yardstick to their actions. It also acted as a ground for the development of the Administrative Law. Various other Institutional mechanisms are instituted for the implementation of the Doctrine like the Independent Judiciary, Separation Of Powers, CAG, CEC, CIC, NHRC and other things like active media and citizen participation. The World Justice Project (WJP), a current global initiative that seeks to promote the Rule of Law across the world.[24]

Inspite of all the advantages of the doctrine its practical application in India has always been challenged. In the survey of countries regarding the checks on the Government, India is ranked 37th among 97 countries. In the survey of absence of corruption India ranks 83rd among 96 countries, which further make the application of the doctrine a difficulty.

There still are major challenges faced by the people trying to spread the implementation of this doctrine. The insufficiency of proper safeguards and mechanisms to curb corruption pose a serious threat to the implementation of the doctrine. Despite various attempts we still not have been successful in the installation of a proper justice mechanism in the form of courts and tribunals. The agencies which are in force presently are also not capable of providing the results they were estimated to provide, which is a major setback in the path of development and implementation of this doctrine. External agencies like the political parties also interfere in the working of Rule of Law.

Initially, it was restricted to ensuring procedural fairness but gradually it also involved the substantive content. Until recent times, it was presumed that the rule of law could never prevail against an express enactment of Parliament; it was also considered that all the elements of right based Democracy were not included in the Rule of law. Although a series of events do support the proposition, however, a series of decisions of the House of Lords in the last few years have breathed new life into the rule of law.

Conclusion
The rule of law in the Indian society has not yet achieved the intended results. It can be observed 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. Today it is accepted that the doctrine should be accepted for the embodiment of orderly life. It expresses fundamental principles that must be acted upon by the Government. It is to applied by the procedures laid down by the Law.

Though the series of Judgements, the provisions of the Constitution do contribute to the Rule of Law, but there are occasions in which we fail to apply the Rule of Law. The human nature of selfishness and egotism demonstrates that power corrupts and absolute power corrupts absolutely. These instances instil realization of the importance of application of the doctrine and make us return to it.

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.[25]

End-Notes:

  1. Origin And Concept Of Rule Of Law' (January 2019)
  2. Black, Black’s Law Dictionary (2009)
  3. Brian Z. Tamanaha, On the Rule of Law (2004)
  4. Aristotle, Politics (1988)
  5. Ibid
  6. A .V.Dicey, The Law of the Constitution, (1885)
  7. Meneka Gandhi v. Union of India 1978 AIR SC 597
  8. A.D.M. v. Shukla AIR 1976 SC1207
  9. A.K. Kraipak and Ors. Vs. Union of India AIR 1970 SC 150
  10. Indira Gandhi v. Raj Narain AIR 1975SC2299
  11. Kesavananda v. State of Kerela AIR 1973 SC1461
  12. Golaknath v. State Of Punjab 1967 AIR 1643
  13. Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar 1979 SCR (3) 532
  14. Madhav Hayawadanrao Hoskot vs State Of Maharashtra 1978 AIR 1548
  15. S. R. Bommai v UOI 1994 AIR 1918
  16. Mohd. Ahmed Khan vs Shah Bano Begum And Ors 1985 SCR (3) 844
  17. Naz Foundation vs Government Of Nct Of Delhi WP(C) No.7455/2001
  18. Navtej Singh Johar & Ors V Union Of India WP NO. 76 OF 2016
  19. Vodafone Vs Union of India CIVIL APPEAL NO.733 OF 2012
  20. Secretary, State of Karnataka and Ors. V . Umadevi AIR 2006 SC 1806.
  21. The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the SecretaryGeneral, UN SC, UN Doc. S/2004/616 at 4 [emphasis added].
  22. F.A. Hayek,The Road to Serfdom(1994).
  23. John Walter Jones, The Law and Legal Theory of the Greeks(1993).
  24. The World Justice Project Rule of Law Index 2011.
  25. Supra

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