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Development of the Rule of Law

The British people strongly believed in the Divine Theory of State. 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”. Parliamentary Democracy based on the principle of equality rooted in Britain. All persons are governed by the same law and same set of rules and regulations is called the Rule of Law.

The Rule of Law was first originated by Sir Edward Coke, the Chief Justice in England at the time of King James I. Coke was the first person to criticise the maxims of Divine Concept. He strongly believed that the King should also be under the Rule of Law. The Rule of Law doctrine was later developed by A.V. Dicey in his book, “Introduction to the Law of Constitution (1885).” The Rule of Law according to Dicey means that no man is punishable or can be lawfully made to suffer in body or goods except for distinct breach of law and no man is above the law. The term Rule of Law thus, means the paramountcy of Law over Government.

Three principles proposed by A.V. Dicey
1. Absolute supremacy of Law
2. Equality before law
3. Predominance of legal spirit.

Dicey’s rule of law consists of following three meanings:
1. Equality before the law:

Dicey says it emphasises the impartiality of law. It means that there shall be no distinction between the rich and the poor, officials and non-officials,majority and minority, no one can be degraded and no one can be upgraded. Law gives equal justice to all.

2. Rule of Law alone:
The Rule of Law rejects all kinds of arbitrary and discretionary powers of the government or public officials. It implies that a man may be punished for a breach of law but he can’t be punished for anything else. An alleged offence is required to be proved before the ordinary courts in accordance with the legal procedure.

3. Constitutional Law stems from ordinary law:
It is generally presumed that the written constitution is the source of legal liberties of citizens. However, it is not true as Britain has an “unwritten Constitution.” Legal spirit is the real source of law in England. The legal spirit is seen in its customs, conventions and judicial decisions. Dicey opines that the individual rights and liberties are more safely protected in Britain than France.

The basic features of Rule of Law as per Dicey:
a) Law does not recognise any special rights for any individual or group of individuals.
b) Law does not recognise any distinction between one individual and the other on the basis of religion, race, sex, etc.
c) None is punished without proper trial.
d) All will be tried by the same court under the same law.
e) The rule of law does not give scope to absolute and arbitrary powers to the executive.

Merits of the Rule of Law:
1. It reverses the tyranny or anarchy.
2. It puts legal barriers to governmental arbitrariness.
3. It provides safe guards for the protection of individuals.
4. It echoes the Magna Carta’s saying, “No free man shall be taken or imprisoned or diseased or outlawed or exiled nor will we go or send for him, except by the lawful judgment of his peers or by the law of the land.
5. Rules of law are rooted in conventions and customs of the country.
6. It gives freedom to the judiciary to control the executive who exceeds their jurisdiction.
7. Public welfare should be the dominant consideration.

Dicey explained the concept Rule of Law in 1885. Many changes have taken place since then. So, it is in different shapes due to the following conditions:
1. Certain privileges are granted to the officials in UK through enacting the Public Authorities Protection Act.
2. With the development of Welfare State concept, the role of state had expanded. It gave power of adjudication to the administrative agencies, who sometimes decide cases.
3. In emergency, Fundamental rights are suspended by the executive.

Modern Concept of Rule of Law:
The Rule of Law is a dynamic concept. It cannot be taken to mean that it is a fixed principle of law from which there cannot be any departure. The concept Rule of Law has been discussed by the International Commission of Jurists met in 1959 at New Delhi. The major findings are:
1.Rule of Law – to safeguard and advance the political and civil rights of the individual in a free society.
2.To establish social, economic, educational and cultural conditions under which the individual may realise his legitimate aspirations and dignity.
3.It should not interfere with the religious belief and should not restrict freedom of speech or freedom of person.
4.No discrimination on minority groups.
5.Adequate safe guards against abuse of power by the executives.
6. There should be an independent judiciary with security of tenure free from legislative and executive interference.
7.The rule of law necessitates an independent legal profession.

Rule of Law in India:
1.The doctrine of rule of law was not known to ancient and medieval India. The king was the fountain head of justice and the protector of all laws. He was considered to be above the law.
2.During the British rule, the principle of the Rule of Law was neglected though this principle was followed in Britain. The East India Company was interested in the expansion of its trade, revenue and territorial expansion. It gave lesser importance to rule of law and fair justice.
3. Even in 1694, East India Company dismissed the Chief Judge of the Admiralty Court of Madras, John Dollen for the judgement against the Company on the pretext of taking a bribe. It always preferred civil servants of the Company as judges. Chief Justice Parker and Chief Justice Braddy II were also dismissed for their refusal to subordinate their judgements to the wishes of the executive.
4. With the establishment of the Mayor’s Courts under the Charter of 1726, Judges started to work with the spirit of judicial independence and rule of law and this resulted in conflict between the judges and the Governors-in-Council. By the charter of 1753, the Judiciary was made subservient to the executive.
5. When the Supreme Court of Calcutta was started under the Charter of 1774, Chief Justice Impey acted as per the rule of law. So he was called back to England as he conflicted with the Governor General.
6. During the Crown’s rule, Indian High Courts Act was passed in 1861 and High Courts were given wide jurisdiction. The Law Commissions were appointed for the purpose of law reforms. Judicial position improved much compared to the rule of the East India Company.

After Independence:
1. The rule of law has been welcomed by the framers of our constitution. The preamble assures to provide equality of status and of opportunity and to promote among them all. It provides the most important fundamental rights to the citizens.
2. The Articles from 12 to 35 of Part III have to be protected by the Supreme Court and High Courts.
3. Article 14 of the Constitution says that, “The state shall not deny to any person equality before law within the territory of India. However, it is to be noted that there are few exceptions to the rule of equality.
4. According to Article 361, The President or the Governor of a state are not answerable to any court for exercising of powers and duties of his office or any act done by him in the exercise of those powers and duties provided that the conduct of the President may be brought under review, on a charge under Article 61, which provided for any person to bring appropriate proceedings against the Governor of a state.
5. According to Article 20 (1) of the Constitution, No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged.
6. Article 21 emphasis that no person shall be deprived of his life or personal liberty except according to the procedure established by the law.
7. Article 14 provides that no discussion shall take place in the Parliament with respect to the conduct of any judge of the Supreme Court or High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for removal of the Judge as hereinafter provided. The rule of law is regarded as a part of the basic structure of the constitution and therefore, it cannot be abrogated or destroyed by the Parliament. Every organ of the state is regulated and controlled by the Rule of Law. Our constitution is the Mandate. It is the rule of law.

Hence, the Rule of Law means that the decisions should be made by the application of known principles and rules, such decisions should be predictable and the citizens should know where he is. It excludes arbitrariness. Its postulate is “Intelligence without passion and reason free from desire.”

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