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Rule Of Law And Indian Constitution

The doctrine of Rule of Law is ascribed to Albert Venn Dicey, a British jurist and constitutional theorist.

His writings in 1885 on the British Constitution included the following three distinct ideas of law:

  1. Supremacy of law: No man is above the law. No man is punishable by law except for a distinct breach of the same. The government cannot punish anyone at its own whims and fancies. Wherever there is discretion there is room for arbitrariness and thus law must always protect individuals against arbitrary discretion.
     
  2. Equality before law: Every man, whatever his rank, is subject to the law of the land the courts. No man is above the law.
     
  3. Predominance of legal spirit: Judicial decisions are important in determining rights of private persons in particular cases brought before the court from time to time. Thus judicial pronouncements hold a very important place in the moulding and development of law.

The basic tenet of Dicey's doctrine is that power is derived from, and to be exercised according to procedure established by law. These basic tenets remain relevant in every democratic nation, even today.

The concept of Rule of Law finds full expression in the Indian Constitution. The Preamble re-emphasises on the high ideals of equality, justice, liberty and fraternity. Part III[1] of the Constitution lists various fundamental rights available to people which act as a negative obligation on the State while making laws.

These rights however are subject to various exceptions and limitations as well. Part IV[2] lists down the Directive Principles of State Policy which strengthen the liberties mentioned in Part III by guaranteeing protection of the same. A citizen can approach the Constitutional Courts viz. the High Courts[3] and the Supreme Court of India[4] for breach of his fundamental rights. Legislature, Executive and Judiciary are three organs under the Constitution and the Constitution is the supreme authority.

Every organ must exercise powers conferred on it within the ambit as prescribed by the Constitution. In case the same is breach, the jurisdiction under Articles 32 and 226 come into play.
The maxim King can do no wrong is not applicable to India because, there is equality before the law and equal protection of law to everybody.[5] The Union of India and respective State governments can be sued in ordinary courts like an individual for any breach of contract entered into by them and for any tort against an individual.[6]

Rule of Law and Indian Constitution

Judicial activism is a philosophy of administering justice whereby judges allow their personal views about public policy ignoring precedents.[7] If one observes the judgements delivered by the Supreme Court of India, one can perceive the judicial pendulum shifting between two ends i.e. conservatism and judicial activism.

The Indian courts vide various judicial pronouncements¸ have been instrumental in strengthening the rule of law in India. Some of these shall be discussed hereunder.

Article 44 of the Indian Constitution requires the State to strive to secure for its citizens a Uniform Civil Code. If a Common Code is prepared and accepted by all communities there would be no problem in respect of rights of women. For achieving this target of course, we cannot move fast, all of a sudden but decisions by courts and educating the masses and the fundamentalists to leave their obstinacy in every walk of life and activity would be beneficial.[8]

Lok Adalats programme is also gaining momentum. In Lok Adalat there is a agency which negotiates with the parties. The movement started in Gujarat has now spread all over the country. Lok-Adalats have now been given a legal status and statutory basis. This movement has strengthened Rule of Law.

Under Article 39A of the Indian Constitution, the State is under an obligation to promote justice on an equal opportunity and provide free legal aid by suitable schemes and legislations. In lieu of this, the Courts in India including the Constitutional Courts have established Legal Aid Committee (LAC). The legal assistance at state cost is now treated as part of the fundamental rights of a person.[9] The LACs and Lok Adalats are in fact powerful devices to reduce arrears of cases lying in courts.

The government is also liable for excess authority and for breach of fundamental rights. One who obtains a writ in the nature of habeas corpus would be able to assert a claim for compensation by way of damages for deprivation of his personal liberty by functionaries of the State.[10]

In India we have tried to stop and control pollution of air, water and atmosphere through various legislations and judicial pronouncements. The various PILs have also aided in reaching to this conclusion.[11]

After independence, a committee on the status of women was set up which gave its report in 1975 and it suggested some measures for upliftment of women in the highly misogynistic Indian society ruled by opaque religious dictums. Abolition of Sati, widow remarriage, inheritance rights to Hindu women are examples of how judicial activism has helped uplift the status of Indian women. In its 174th Report, the Law Commission of India recommended to reform Hindu laws by giving coparcenary rights to a Hindu woman.[12]

In a significant development for women's movement in India, the Congress led UPA government passed the Protection of Women from Domestic Violence Act, 2005, granting protection to married woman and other women in a domestic household. This is yet another glaring example of upholding the principle of Rule of Law.

Conclusion
Rule of Law is the fundamental of any legal system today that believes in a free society where all are equal in the eyes of law. Equality in a society leads to its prosperity and thus it is essential for any developing nation to inculcate the same in its social and legal system.

Any nation must cling to this aspect of law unless lawlessness, anarchy and social destruction are bound to happen.

End-Notes:
  1. Articles 14-35 and Article 226
  2. Articles 36-54
  3. Art. 226
  4. Art. 32
  5. Art. 14
  6. Arts. 299 and 300
  7. P. Ramanatha Aiyar, Advanced Law Lexicon, 3rd Ed., 2005.
  8. One may mark the ratio of following cases: Mohammed A. Khan v. Shah Bano Begum, (1985) 2 SCC 556, Bijoe Emauel v. State of Kerala, (1986) 3 SCC 615, Madhu Kiswar v. State of Bihar, (1996) 5 SCC 125, Githa Hariharan v. RBI, (1999) 2 SCC 228.
  9. M.H. Hoscot v. State of Maharashtra, (1978) 3 SCC 544.
  10. Rudal Shah v. State of Bihar, (1983) 4 SCC 141.
  11. M.C. Mehta v. UOI, AIR 1987 SC 965; M.C. Mehta v. UOI, AIR 1988 SC 1037.
  12. Lawyer's effective, July 2000, p. 3.

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