‘Rule of Law’ is the foundation for a modern democratic society. For successful functioning of the country it’s imperative that there is enforcement of law and of all contracts based on law. Law is for the welfare of the society and maintaining harmony. The concept of rule of law plays an important role in the process of maintaining public order and peaceful, progressive environment for the people.
The term ‘rule of law’ is derived from the French phrase ‘la principle de legality’ (principle of legality) which means a government based on principles of law and not of men[i]. Basically this principle means that law is supreme and no one, whether rich or poor is above the law. Also government authority may only be exercised in accordance with the written laws which were adopted through an established procedure. It is a safeguard against the arbitrary actions of the government authorities[ii]. It is the rare and protean principle of our political tradition[iii].
The Origin of Rule of Law
Rule of law is a very old, almost ancient principle. Bracton, a 13th century judge during the reign of Henry III, introduced the concept without specifically calling it rule of law. Rather he presented it as – “the king himself ought to be subject to God and the law, because law makes him king.[iv]”
Edward Coke is considered to be the originator of this concept when he said that the king must be under God and law and thus vindicated the supremacy of law over the pretentions of the executives[v]. In India the concept can be traced back to Upanishads– it provides ‘law being the king of kings’. However the credit of building on this concept goes to A.V. Dicey who in his book ‘Introduction to the Study of the Law and the Constitution’ (1885) tried developing the concept of rule of law. According to Dicey, no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal recourse of the land[vi]. Where there is scope for discretion there is room for arbitrariness[vii].
Dicey’s theory of Rule of law:
Dicey’s theory has three main principles
1. Absence of Arbitrary Power or Supremacy of Law- Dicey was of the view that all individuals whether a common man or government authority are bound to obey the law. No man can be punished for any breach other than a breach established in law. Also an alleged offence has to be proved before ordinary courts, as per the procedure provided.
2. Equality before law: this means equality of law and equality before law. Even government authorities are duty-bound to obey the same law and they have no special orders to deal with their causes.
3. Constitution is a result of the ordinary law of the land: in many countries rights such personal liberty, freedom, etc are written down in the constitution. However in England these rights are a result of judicial precedents. The constitution is not a source but the consequence of the rights of individuals.
Components of Rule of Law
Rule of law is a dynamic concept which is tad bit too difficult to confine within a definition. Everyone has his own way of defining it- some call it the supremacy of law; some relate it to the concept of clarity, universality, stability, etc. To overcome this problem the basic components of concept of rule of law have been identified:
- A government bound by and ruled by law
- Equality before law
- Established of law and order
- Efficient and predictable application of justice
- Protection of human rights
Rule of Law in the Modern sense
Dicey’s theory cannot be accepted in today’s world in totality. The new idea of rule of law is fairly broad and therefore puts up the benchmark of how an ideal government should be. This was developed by the International Commission of Jurists, also known as Delhi Declaration, 1959 which was later on confirmed at Lagos in 1961. Accordingly the functions of the government in the free society should be so exercised as to create conditions in which the dignity of an individual is upheld. This dignity mandates the recognition of the basic civil, political, social, economical, educational and cultural rights which are essential to the complete development of an individual’s personality.
According to Davis, there are seven principle features of the term rule of law:
1. Law and order
2. Fixed rules
3. Elimination of discretion
4. Due process of law or fairness
5. Preference for judges and ordinary courts of law to executive authorities and administrative tribunal
6. Judicial review of administrative actions
7. Natural law or observance of principles of natural justice
It means the rule by a democratic law- a law which is passed in a democratically elected parliament after proper debate and discussion. Similarly, Sir Ivor Jennings has said- “in proper sense, rule of law implies a democratic system, a constitutional government where criticism of the government is not only permissible but also a positive merit where parties based on competing politics or interests are not only allowed but encouraged. Where this exist the other consequences of rule of law must follow”.
Adoption of Rule of Law in India
Part III of the Constitution is the litmus test for the law making power of the Indian Parliament. The Constitution guarantees and promotes fundamental rights and freedom of the citizens and the respect for rule of law and its application in a democratic state. ADM Jabalpur v Shivkant Shukla[viii] is one of the primary cases in determining rule of law. The case dealt with the fact if rule of law exists in India, apart from art 21. While the majority ruled in negative, H R Khanna, J. in his minority opinion observed that even in the absence of art 21 the State would have no right to deprive a person of his life and personal liberty without authority of law. Without such sanctity the distinction between a lawless society and one governed by laws would cease to have any meaning.
Secondly, rule of law provides that government should be conducted within a framework of recognised principles which restrict unbridled powers. In Som Raj v State of Haryana[ix] it was held that the primary postulate of rule of law is the absence of arbitrary power, upon which the entire constitutional edifice depends. Discretion without any rule is the anti-thesis of rule of law.
Thirdly, this concept highlights the independence of judiciary and supremacy of courts. State function flows from the decision of superior courts[x]. It’s the touchstone for administrative law prevailing in the country. The cardinal principle drawn by many common law systems like India in the rule of law is that the executive must act under the law and not by its own fiat.
Over the years the ambit of rule of law has been widened. Now it’s considered to be a part of basic structure and hence can’t be abrogated even by the Parliament. Constitution is the grund norm and every law has to be in conformity with it. In Keshavananda Bharti case[xi] the Supreme Court enunciated the rule of law as one of the basic aspects of doctrine of basic structure. The court has also declared that Art 14 strikes against arbitrariness[xii] and amendments such as the 39th Amendment are invalid since they go against the basic structure of the Constitution[xiii]. Moreover in Bachan Singh[xiv] J. Bhagwati has emphasised that rule of law excludes unreasonableness. To ensure this, it’s necessary that there should be an independent judiciary to protect the citizens against the excesses of executive and legislative power.
Conclusion
Rule of law is an idea for law, justice and morality. It considers what norms, laws, rules, procedures, systems, and structures should be and what they shouldn’t be. Inherent in this principle are three realities- law governs people as well as government itself, people should obey the law and finally, law need to be able to obeyed- not only in the sense of being known or predicted but also being just in the greatest extent. This facilitates stability, peace and check on absolutism and despotism. Corruption, terrorism, etc are antithesis to Rule of Law. However, common law traditions and Constitution along with a perseverant judiciary have led to do the development of rule of law in India.
In a society where rule of law plays a purposeful role, democracy flows from prevalence of rule of law. Therefore, both the concepts, i.e. democracy and rule of law are intertwined, co-dependent systems. It’s imperative that consistent efforts be made to preserve rule of law in the society without which our fundamental credentials as a democracy will be undermined.
Frequently Asked Questions
1. How does rule of law contribute to democratic life?
Rule of law ensures that government or government officials don’t use their powers arbitrarily. Rule of law also mandates equality of law and equality before law. Every individual matters, which forms the basis for a democratic life. Hence rule of law helps bolster democracy.
2. How does rule of law protect human rights?
Rule of law ensures that individual dignity is maintained and nobody can stomp over it. Law is above all and treats everyone equally. Therefore, it safeguards human rights.
3. When was the rule of law created?
Rule of law as a concept was given in 13th century by Bracton, though it wasn’t known as the “rule of law”. Later Edward Coke propounded this principle in clear terms following which the principle spread far and wide.
4. Where is rule of law enshrined in the Indian constitution?
Rule of law can be found in several portions of the Constitution. Art 14 talks of equality of law and equality before law, whereas art 21 talks of procedure established by law. Both of this point towards the principle laid down by rule of law.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
Reference
[i] Alexandru Stoian, Teodora Drăghici, The Principle Of Legality, Principle Of Public Law, https://www.degruyter.com/downloadpdf/j/kbo.2015.21.issue-2/kbo-2015-0087/kbo-2015-0087.pdf (last visited 5 August, 2019)
[ii] David Chan Smith, Sir Edward Coke and the Development of the Rule of Law, Fifteen Eighty Four:
Perspectives from the Cambridge University Press, (August 7 2019, 5:00PM) http://www.cambridgeblog.org/2015/01/sir-edward-coke/
[iii] A V Dicey, Introduction To The Study Of The Law Of The Constitution 1835-1922, (Macmillan 1915)
[iv] A V Dicey, Introduction To The Study Of The Law Of The Constitution 1835-1922, (Macmillan 1915)
[v] David Chan Smith, Sir Edward Coke and the Development of the Rule of Law, Fifteen Eighty Four:
Perspectives from the Cambridge University Press, (August 7 2019, 5:00PM) http://www.cambridgeblog.org/2015/01/sir-edward-coke/
[vi] Rajesh Kumar, Supremacy of law is the aim, rule of law is the best tool to achieve this aim: analysis and critically examine the scope of rule of law in India, Scholarly research Journal for Humanity Science and English Language, 3-189 (2014)
[vii] Rajesh Kumar, Supremacy of law is the aim, rule of law is the best tool to achieve this aim: analysis and critically examine the scope of rule of law in India, Scholarly research Journal for Humanity Science and English Language, 3-189 (2014)
[viii] ADM Jabalpur v Shivkant Shukla 1976 (2) SCC 521
[ix] Som Raj v State of Haryana 1990) 2 SCC 653
[x] Union of India v Raghubir Singh [1989] 2 SCC 754
[xi] Keshavananda Bharti v State of Kerala AIR 1973 SC 1461
[xii] Maneka Gandhi v Union of India 1978 AIR 597
[xiii] Indira Gandhi v Raj Narain AIR 1975 SC 2299
[xiv] Bachan Singh v State of Punjab (1980) 2 SCC 684
