Rule of law and welfare state

Rule of law and welfare state

Introduction

Administrative law is mainly concerned with the control of powers of administrative authorities. This expression in rule of law plays an important role in administrative law. One of the basic principles of English institutions is the rule of law. This concept had an old origin. The expression rule of law has been derived from the French phrase La principal de legalite i.e. a government based on principle of law full stop the term rule of law indicates the state of affairs in a country where in men the law rules.

The main object of law is to maintain public order by comparing individuals to behave in a legal manner and also to provide protection to individuals by defining powers of government. The law provides protection to individuals from unlawful action of Government and its officials by comparing them to exercise their power in accordance to the law.

Meaning of rule of law

the modern conception of rule of law has been well described by wade and Phillips in their book construction law- rule of law means-

  • absence of arbitrary power
  • Effective control of and proper publicity of delegated legislation
  • That when discretionary powers is granted the manner in which it is to be exercised should be as far as practicable
  • that every man should be responsible for ordinary law whether he be private citizen or public officer
  • That fundamental private rights are safeguarded by the ordinary law of the land

Also, the concept of rule of law has been defined by an international commission of jurists made in 1959 at New Delhi. it has declared that rule of law is a dynamic concept. It should be employed to safeguard and advance the political and civil rights of individuals in a free society.

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. It is also regarded as a part of natural justice.

According to dicey, rule of law has three meanings

  • The first meaning of rule of law is that no man is punishable and can lawfully be made to suffer in body or goods except for a distinct breach of law established in ordinary legal manner before the ordinary courts of land. The rule of law according to dicey means the absolute supremacy of predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness of prerogative and even of the wide discretionary authority on the part of the government.
  • The second meaning of the rule of law is that no man is above the law. every man whatever be his rank or condition is subject to ordinary law of realm and amenable to the jurisdiction of ordinary tribunals. Thus, Rule of law means equality before the law and equal subjection of all classes to ordinary law of the land administered by the ordinary law courts.
  • The third meaning of rule of law is that the general principles of the constitution are the result of judicial decisions determining the rights of private persons in particular cases dropped before the Court.

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Rule of law and welfare state

a welfare state is a concept of government where the state plays a key role in the protection and promotion of the economic and social well-being of its citizens.

The following provisions of constitution of India established formally rule of law in country for the welfare of state :

A) Article 13: the constitution of India has been made the supreme law of the country and other laws are required to be in conformity with the constitution. any law which is found in violation of any provision of the constitution is declared invalid.

Part 3 of the constitution of India guarantees fundamental rights. Article 13(1) of constitution makes it clear that all laws in force in territory of India immediately before the commencement of the constitution insofar as they are in constituent with the provision of part 3 dealing with fundamental rights to the extent of such inconsistency by void. Article 13 (2) provides that the state should not make any law which takes away or averages the fundamental rights and any law made in contravention of this clause shall to the extent of contravention by void. 

B) Article 14 : Article 14 of constitution of India provides for equality before the law and equal protection of the law equality before law implies the absence of any special privilege in favour of an individual. It ensures that all are equal before law. Article 14 is primarily a guarantee against arbitrary action in a state action and the doctrine of reasonable classification has been evolved only as a subsidiary rule of testing whether a particular action is arbitrary or not.

Case laws 

A.K Kraipak v/s Union of India – Air (1971)SCC 457

It was held that every organ of the state under the constitution of India is regulated and controlled by the rule of law.

S.G .Jai Singh v/s Union of India

absence of arbitrary power has been held to be the first essential of rule of law . The rule of law requires that the description conferred upon the executive officer must be contained within clearly defined limits.

Khatri v/s State Of Bihar

Free legal aid for poor and speedy trials in criminal cases have been held to be necessary adjuncts to the rule of law.

Conclusion 

No man is above the law. In India the meaning of the rule of law has expanded greatly. It is regarded as a part of the basic structure of Indian constitution. It is a part of natural justice.

Author: Pooja Pawar,
LLB from NBT law college Nashik

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