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Understanding on Rule of Law

As per World Justice Project Rule of Law Index 2019 rule of law adherence in 126 countries, India ranked 68[1] . The Rule of Law is measured on multiple factors like Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice which has fallen from 65th to 68th. This Article is focused on meaning and understanding of rule of law in global sense also argue on the vitality of subject in present era.

So, the concept of rule of law can be traced back from the civilization of Greece, China, Mesopotamia, India and Rome. In fourth century B.C. Aristotle wrote book Politics which tells governance of law and suggested the notion of participatory governance. While explaining it he quoted that all men should follow and abide by the law. Also the Greeks were among the first people in history to separate the court process from government power, and introduced judgment by their peers.[2]

The Modern form of Rule of Law originated from the criticism of the Divine Theory of State. As per it the king was given the power to govern the people by the Divine Authority (God). This theory propagates that, King can do no wrong, king is above law[3]The Chief Justice of England, Sir Edward Coke at the time of King James I, criticize and argued that king should also be under the preview of rule of law. Professor A. V Dicey in his book An Introduction to the study of the Law of the Constitution summed up these practice in five principle i.e. Principle of impartiality, principle of equality before the law, principle of fair hearing, principle of supremacy and right to appeal. Later Davis worked on it and listed seven principles of rule of law which includes:

  • Law and Order;
  • Fixed Rules;
  • Elimination of Discretion;
  • Due Process of Law or Fairness;
  • Natural Law or Observance of The Principles of Natural Justice;

Preference for judges and ordinary courts of law to executive authorities and administrative tribunals; and Judicial review of administrative actions.

After analyzing historical background if we sum-up rule of law then it will be laws which are applicable to everyone equally. It also covers laws which are created through predetermined, open and transparent process not by the whim of the most powerful members of society. Relationship between Political Sovereign and Stakeholder is the matter of governance which can be rum effectively and efficiently through the system of Rule of Law. Often rule of law is confused with rule by law. Any law which is laid down by the supreme law making authority of that country and cannot be questioned is rule by law.

On other hand according to Britannic cyclopedia:
Rule of law is a process, institution, practice or norm that supports the equality of all citizens before the law, secure non arbitrary form of government.[4]

On understanding this definition in rational sense we will be able to understand that above mentioned definition is based on three pillars that are supremacy of law, equality under law and sense of legal spirit. Segregation of society on basis of ideologies, culture, language, region and other such social cultural set of block give rise to discrimination practices. On same way subjects of law also varies which give unequal practice of law.

Rule of law in this context refers that act as instrument which regulates all subject matter in uniform sense and focus on equality. Equality before law is the popular phrase of equality principle of rule of law. From the Magna Charta to French Revolution this notion of equality has been used in various political revolutions against sovereign and state. John Locke and Rossueal studies talks about certain rights and freedom which takes into consideration of equality principle into. Later natural law philosopher like Fuller and Mill discussed the concept of inner morality which emphasis on just and equal laws in procedural and applicability sense.

To keep proper check on uniformity of above mentioned notion, there is a need where all the executives need to exercise their power in reasonable and rational manner. It opens the door for discretional use of authority rather than arbitrary exercise of functions. Authorization refers to the code of conduct which has backing of legal source.

The action performed by bureaucrat should have discretion not arbitrary. Discretion is the power of a judge, public official or a private party (under authority given by contract, trust or will) to make decisions on various matters based on his/her opinion within general legal guidelines.[5]Lord Diplock put it well in a recent case when he said:
The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred.[6]

Justification or accountability is another aspect of use of power as Justification provides protection against arbitrariness; part of what defines arbitrary action is action that is not justified. Scope of Judicial Review of certain administrative action can also fix check over the Negative discretion. Procedurals fairness and Coherence are the last two essential elements of fair discretional use of authority. Later concept of proportionality and transparency added to this principle through which rule of law could become more efficient and effective.

In Indian Constitution from the popular habeas corpus case, ADM Jabalpur v. Shivakant Shukla the implementation of rule of law discussed.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
[7].

Fundamental Rights our Constitution restrict law making power of the Indian Parliament in order 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. Even in the United Kingdom the rule of law is a long-standing principle of the way the country is governed, dating from Magna Charta in 1215 and the Bill of Rights 1689[8].The U.S. Army field manual* defines the rule of law as follows:
The rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated, and which are consistent with international human rights norms and standards.

It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.[9]

As we discussed from Rome and Greece Civilization to Modern State like India, USA and UK has always took into account the concept of rule of law and its application. Each state from ancient era till present time has implemented and adopted the ideas of it.

Accountability, Fair Trail, Reasonable use of authority, Transparency, Supremacy of law are some of the system which are always been a part of administrative and legislative part of the governance. The incident like fall of divine theory of state, Magna Charta and Landmarks Precedents goes around these values. Thorough UN to individual states all are the subject matter of Rule of Law. Refuges, Women, illiterate, Poor, Children are covered and protected through it. Basic and Universal right contract between state and stakeholder regulate through it.

In coming era where flow of Nationalism, Privatization and Capitalization is increasing the acceptance of Uniform Rule of Law is decreasing. The Aim of Political Sovereign has been shifted from global concern to own concern. In such a scenario it will be really interesting to see the role and position of rule of law and its influence over the transnational policy around globe.

End-Notes:

  1. World Justice Project , Rule of Law Index 2019 Insights, Retrieved from https://worldjusticeproject.org/sites/default/files/documents/WJP-Insights-2019-Final.pdf
  2. Kate Allman, History of the rule of law, The Boiling Frog (4.53pm, 7-17-2019), Retrieved fromhttps://moodle.stu.ca/pluginfile.php?file=%2F71569%2Fmod_resource%2Fcontent%2F1%2FBluebook.pdf
  3. Preethi Ramanujam, Development of the Rule of Law, Legal Service India (4.57pm, 7-17-2019), Retrieved from http://www.legalserviceindia.com/legal/article-85-development-of-the-rule-of-law.html
  4. Rule of law, Political Philosophy, Naomi Chaoi, Britannica , (12.48 pm, 7-17-2019)
  5. Discretion Law and Legal Definition, USLegal, (3.11pm, 7-17-2019), https://definitions.uslegal.com/d/discretion/
  6. Secretary of State for Educ. and Science v. Tameside Metropolitan Borough Council, [1977] A.C. 1014 at 1064 (C.A.). See also Dussault, Traitj de droitadministratifcanadienetquibicois (Qudbec: Les Presses de l'universit Laval, 1974) at 1398
  7. ChhaviAgarwal, Rule of law - A reflection upon we the people and beyond, (5.40pm, 7-17-2019) Retrieved from http://www.legalserviceindia.com/article/l459-Rule-of-law.html
  8. The Rule of Law.The Constitution Society.Archived from the original on 6 October 2014.Retrieved 3 October 2014.
  9. ConorFriedersdorf, America Fails the 'Rule of Law' Test, The Atlantic, (5.58pm, 7-17-2019), Retrieved from https://www.theatlantic.com/politics/archive/2014/07/how-america-fails-the-rule-of-law-test/374274/

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