Introduction to Rule of law
Rule of law is origin in very past years ago, Firstly many great philosophers like, Aristotle in 350 B.C said, “ Law should be the final sovereign” and Plato in same time said, “Government can under the law and if the law can under the Government, The welfare state does not exist” then in thirteen century by Sir Edward Coke, Chief justice in James 1st reign, which says kings are not above the law and it comes from a French phrase “ la principle de legalite ” which means the principle of legality.
It generally means that no one is above the law and every person no matter rich or poor, powerful or weak is equal before the law and only punished when they breached the law. The modern administrative system of many countries based on this principle.
This principle is developed by A.V. Dicey in his classical work (THE LAW AND THE CONSTITUTIONAL) in 1885. And by this work, it is made one of the basic principles of the English Constitution.
- ( Also Read: RULE OF LAW AND ITS APPLICATION IN INDIA )
- ( Also Read: RULE OF LAW- AN OVERVIEW )
- ( Also Read: Rule of law and welfare state )
Meaning of Rule of law
The rule of law is defined by A.V Dicey. He divides the Rule of law concept into three heads;
- The supremacy of law.
- Equality before law.
- Judge Made constitution.
Supremacy of Law
The dicey said that law is supreme and sovereign and nobody above the law in a nation. As wade says, the Government is subject to the law rather than law is subject to government. This principle is basic in every successful democratic country. The supremacy of law also represents that every person is punished or compensate only if they breached the law or otherwise nothing else. It also said that end of discretionary power is one of the major steps to achieve the supremacy of law because if no one has allowed wide discretionary power and should be a compulsion to work under the law, not their discretion so it itself ends the arbitrariness.
Position in India
In India, the constitution is supreme and law of the land so, the law is supreme. And All three organs of the government that is the legislature, executive and judiciary are acting in the pursuance of the constitution. In India, no person can be punished or compensate except breach of law and they only punished when their violation is proofed in the court of law and habeas corpus writ, right to a fair trial and other in India can prove that supremacy of law is present.
Equality Before Law
This is the second principle which means every person in a country is equal in the eyes of law with irrespective of their colour, caste, creed, status, gender, etc.
This promotes that every person is governed by the same law and if they committed a breach of law without justification no matter, they are a prime minister or a local servant they punished equally. In this context, Dicey criticizes the Droit administratif which have declared special tribunals for civil servants and out from the jurisdiction of common courts, dicey opposed it because they said that this step will make executive body also plays the power of the judicial body and this will end equality before the law and begins tyranny.
Position in India
In India, Article 14 of our constitution said equality before the law which generally meaning no one is big or small in eyes of law everyone has got same punishment on breach of law no matter they are a government employee or a common person, in Indian law, the concept of tribunal I have seen but this doesn’t mean that it lesser the power of judiciary but it has both judge in a tribunal executive as well as judicial and prioritized by judicial rather than an executive magistrate.
Judge Made Constitution
Dicey rule of law said that the rights of people that are written under the constitution are lesser effective and enforceable than the right guaranteed by the court of law. In a general sense, the rights such as the right to liberty, right to equality, freedom from arrest are arisen by a court of law, in the dispute of both parties and not by written constitution because in the constitution it is only a written document and they can be ignored or curtailed by the people.
This is followed in England as they have no written Constitution but they have formally based on the separation of power, The Separation of judicial from executive power is implicit in the very structure of their constitution.
Position in India
In India, this third principle is not to follow because in our country the rights are made by the legislature and it is framed under Constitution and judiciary protects the right and interpret that but not make the rights.
Importance of Rule of law in modern world
In every democratic country, the rule of law is the basic feature to succeed in their law and order. And, most of the modern effective administrative system is based upon this principle that is; USA, INDIA, England etc. It works as a safeguard to that country democratic system and an effective government.
The basic importance given by rule of law is that it removed wide discretionary power of government and administration and make it subject to the law and due to this the stoppage of arbitrary action of governmental authorities and the government itself under the law. So, it reduces the making of tyrannical laws also.
ADM Jabalpur v. Shivakant Shukla, it is also known as Habeas corpus case in this case after the proclamation of emergency on ground of internal disturbance, There was much detention arrived of Mainly political leaders of the opposite party under MISA Act. Then govt. Of the state file appeal in supreme court after dismissal in high court and issue raised that Article 21 right to life or personal liberty is a preview of rule of law or not. Court held negatively that it is not and this right is also suspended in times of emergency but after that, this case is the bad face of our Indian judiciary.
In this case, dissented opinion was given by Khanna J, which says that the right to life and personal liberty cannot be curtailed by the state in any circumstances except legal punishment. It is one of the fundamental rights and state only protect it, not curtailed it. And, this opinion was so helpful in determining the Indian context rule of law.
Kesavananda Bharati v. State of Kerala, it is the landmark judgement that describes the basic structure of our constitution and held that basic structure cannot be amended by any act of parliament and in this case, rule of law also considered as part of our basic structure of the constitution.
Merits of Rule of law
- This doctrine is accepted in many constitutions and acts as a safeguard of their democratic system.
- In this, the supremacy of law makes a cardinal rule of democracy, that every government is subject to the law and not vice versa.
- Democracy without equality before the law in a political system does not recognised.
- Without this, the welfare state does not exist.
- It is used as a powerful weapon in keeping Administrative authorities in their limits.
Demerits of Rule of law
- It is not every time says that “Law ends, Tyranny begins” sometimes it is also said that “Law ends, Discretion begins” so, it is impossible to total removal of discretionary power because without this an effective government does not take place.
- Laws are changing time to time and society to society, so there is no constant code of conduct followed by the government it needs amendment according to the circumstances and with proper procedures by law.
- Several Administrative tribunals are also adjudicating rights of peoples so, in this view rule of law fails because it totally against tribunal and not trying to changing their structure.
The rule of law is always a part of many successful democratic countries and it acts as a safeguard of their democracy. The dicey, rule of law is totally based on England system and they have some loophole that’s why most countries cannot accept rule of law in their strict sense but they only choose that what is fit for their country legal system and adopted some principles of rule of law that effective in their country.
Basically, the rule of law does not provide the people rights but they provide a framework that is how is the subject matter that people can challenge govt. And take their right from the government because people are the basic unit of state and which is protected by the rule of law and democracy.
Author: RAHUL SHARMA,
Ideal Institute of Management and Technology affiliated to GGSIPU/ 2nd Year/ Law Student