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Updated: Aug 27, 2021

By-Sumiara Begum

“It is the rule of law alone which hinders the rulers from turning themselves into the worst gangsters”- Ludwig von Mises

The derivation of the phrase ‘Rule of Law’ is from the French phrase “La Principe de legalite” which means the ‘principle of legality’. It refers to a government based on principles of law and not of men. In simple terms, Rule of Law means no man is above law and every person is subject to the jurisdiction of ordinary courts of law irrespective of their position and rank. The state is governed by the nominated representatives of the people by law and the concept of rule of law enshrines that the Grundnorm of the country or the basic law from which all other law derives its authority is the supreme law of the state.

Tracking the genesis of the concept of Rule of Law, it is dated back in the 13th century A.D by Henry de Bracton where he differentiated law and king as two entities not interlinked to dominate each other but to be subjected to one another. However he did not use the phrase “rule of law” and hence the credit of originating the phrase went to Sir Edward Coke in James I Reign. Thereafter, this concept was discussed by many Greek philosophers such as Plato and Aristotle around 350 BC but a detailed analysis of the concept of “rule of law’ was henceforth carried by Prof. A.V. Dicey in his book “Law and the Constitution”. According to Dicey’s theory a government should be based on principles of law and not of men. He forwarded three pillars based on this concept, they are: 1. Supremacy of law 2. Equality before the law 3. Pre- dominance of the legal spirit In the modern parlance hence, the concept of Rule of Law has come to be understood as a system which safeguards men against official arbitrariness, prevents anarchy and allows people to plan the legal consequences of their actions. It can be said that the concept of rule of law postulates a series of fundamental ideas like equality before law, equal treatment before the law, independence of judiciary, consistency, transparency and accountability.

The Dicey’s theory of Rule of Law cannot be accepted wholly. The modern concept is very wide and the modern Rule of Law says that the function of the Government in a free society is to exercise and created a condition where an individual’s respect and dignity is upheld and increased. It not only recognizes the civil or political rights but also lays emphasis to certain social, political, economic and educational rights as well. Davis lays down 7 types of Modern law: 1. Law and order 2. Principle and natural law 3. Fixed rules and regulations 4. Eliminate the idea discretion 5. Due and fair process of law 6. Preferences for judges and court of law to execute authority and administrative tribunals 7. Judicial review of administrative action In India, although it is said that the concept of Rule of Law has been adopted from England; the traces of same can be witnessed back to Upanishads. This principle is prevalent in India as the framers of our Constitution has thoroughly enshrined it over various articles however, never formally provided any written law about it. It is a derivative context rather than textual references to allow its usage time to time. The Constitution of India intends India to be governed by the rule of law stating that there shall be no supreme law other than the Constitution itself and the other governmental bodies would derive its power from the Constitution. But is the society same now like the way it was back during 1950’s? Is Dicey’s theory still relevant and absolute to be used in modern sense?

In the context of Indian democracy, in Article 13(1) of the Indian Constitution it is said that any law made by legislature is subjected to be in conformity with the Constitution otherwise shall be declared invalid. Article 14 again provides the provision which says about equality before law and equal protection of law. No man is above law, no one can be made subject to punishment until there is a breach of law or any act is done contrary to any law provided by the laws accepted and recognized in accordance with the Constitution. It further provides the discrimination clause which explicitly provides that no discrimination shall be made on the basis of sex, religion, race, place of birth and hence ensure the separation of power between the three wings of the government, that being, the executive, the legislature which shall have no influence on the judiciary which is the third wing of the government. Article 21 further provides the check and balance concept which checks the arbitrary executive action which

provides no one shall be deprived of one’s life and liberty except in accordance to the procedure established by law. The plethora of cases wherein the concept of Rule of law has been further discussed and strengthened is provided below: In ADM Jabalpur v. Shivkanth Shukla AIR 1967 SC 1207, the question before the court was ‘whether there was any rule of law in India apart from Article21’. This was in the context of suspension of enforcement of Articles14, 21 and 22 during the proclamation of an emergency. The answer to 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…Rule of Law is now the accepted norm of all civilized societies” Again, in Chief Settlement Commr; Punjab v. Om Prakash, it was observed by the Supreme Court that, “In our constitutional system, the central and most characteristic feature is the concept of rule of law which means, in the present context, the authority of law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the matter into notice.” In Secretary, State of Karnataka and Ors. v. Umadevi (3)and Ors AIR 2006 SC 1806, a Constitution Bench of this Court observed that it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. In Gadakh Yashwantaro Kankarrao v. Balasaheb Vikhe Patil AIR 1994 SC 678, it was laid down that the rule of law has to be preserved as the essence of the democracy of which purity of elections is a necessary concomitant, it is the duty of the courts to appreciate the evidence and construe the law in a manner which would sub serve this higher purpose and not even imperceptibly facilitate acceptance, much less affirmance, of the falling electoral standards.

For democracy to survive, rule of law must prevail, and it is necessary that the best available men should be chosen as people's representatives for proper governance of the country.

Lastly, the popularly know case of Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461, the Supreme Court held that the Rule of Law is an essential part of the basic structure of the constitution and as such cannot be amended by any Act of Parliament, thereby showing how the law is superior to all other authority of men.

Therefore it can be concluded that the concept of Rule of law is deeply embedded in the polity of India. The framers of Constitution placed it properly in the system of the country and gave cognizance to the rule. Apart from judicial decisions, the Constitutional mechanism itself provides for the protection of rule of law through the creation of monitoring agencies. It is to say that if ones aim if to prove Supremacy of law, the best tool however to achieve the aim is Rule of Law. Although problems like outdated legislature and overburdened courts are hamper the smooth enforcement of the rule of law, there has been instances where the judicial system has been impaired by corruption, to tackle this it is necessary to protect the judiciary from the influence from the executive and administrative. There is also a need to take the required actions to ensure a speedy justice delivery system to implement the Rule of Law in its true spirit. Similarly, the parliament should make sure they do not pass any law which is violative of any right of the citizens or of the constitution. The executive should ensure that it does not enforce any such law in the country. No matter what the situation is, the Constitution should be considered as the supreme law of the land. Therefore, f each and every organ of the government does its share of work, there would be no barriers for unqualified implementation of the Rule of Law in India.

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