This blog is inscribed by Satuluri Triveni.
“Being democratic is not enough. A majority cannot turn what is wrong into right. In order to be considered truly free, countries must also have a deep love of liberty and an abiding respect for the rule of law.” ― Margaret Thatcher
What is Rule of Law
The concept of Rule of Law was first introduced in the English Law. It plays so important part in the English Law that Rule of Law is considered as the Bedrock of English Law. And while drafting the Indian Constitution, we adopted the concept Rule of Law from the England’s constitution.
The concept of Rule of Law is that the state is governed, not by the ruler or the nominated representatives of the people but by the law. The restriction of the arbitrary exercise of power by subordinating it to well defined and established laws.
Rule of Law, the term was firstly used by A.V. Dicey, a legal philosopher. Dicey was the one who developed the concept Rule of Law, which is the foundation of English Law. Rule of Law is the term derived from a French principle La Principle De Legalite, which means Government based on the principle of law.
The concept of Rule of Law plays an important role in the administration of the country. It provides for the protection to the people against of the administrative authorities.
The object of the Law is to maintain public order by compelling individuals to behave in a legal manner and also to provide protection to the individuals by defining the powers of the government.
The two main exponents of the concept are A.V. Dicey and Edward Coke.
Sir Edward Coke said that Rule of Law is required to ensure that there is no authoritarian of rule of crown or government and also to ensure the protection of individuals and their rights (legal safeguards). To restrict government from authoritarian rule, to exclude arbitrary authority of government, Equal application of law and orders, to do things in a legally right way, Protection of individuals and their rights, Legal limits to be kept and say law is supreme, and the Administrative actions can be questioned by law.
Dicey in his book, Introduction to the Law of Constitution (1885), he explained Rule of Law as 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. Dicey’s Rule of Law was the foundation of English Law and we are exactly following the same.
There should be supremacy of regular laws as opposed the influence of arbitrary power and Equality to all the classes to the ordinary Law, administered by the ordinary courts. Law of the constitution is the consequence of the rights of the individuals as defined and enforced by the courts.
The doctrine of Rule of Law was made popular by A.V. Dicey in his book, The Law of the Constitution in the year 1885.
The principles of law which provide a protection to the people from the arbitrary laws of the state are known as the Rule of Law.
A.V. Dicey’s three principles of Rule of Law;
1) Supremacy of the Law:
It basically means that only the law is supreme and everything will be governed according to the law.
Lex Rex – Law is the king of the kings.
There should be the supremacy of law, so that no person shall be deprived of his life and liberty except according to the procedure established by the Law.
The person condemned shall also be given a fair opportunity of being heard in order to prevailing of the supremacy of law.
2) Equality before Law:
Second principle of Rule of Law is that No man is above the Law. Every person regardless of his rank in the society is Equal before the law.
No person shall be discriminated on the basis of Race, Religion, Caste, Sex, Place of Birth etc.
No one is discriminated in the eyes of law and everyone is equal. The provision under Constitution of India is Article 14.
3) Predominance of the Legal spirit:
A.V. Dicey states that there should be predominance of legal spirit. Which means all the Principles of Rule of Law should not only be mentioned in law. They should be guaranteed by the state as well, only then legal spirit will prevail.
It basically says that, the Constitution of India recognizes the rights of the citizens and the courts should help in enforcing them.
Rule of Law and the Indian Government:
“The rule of law should be respected so that the basic structure of our democracy is maintained and further strengthened” _ Lal Bahadur Shastri
In India, the principles of Rule of Law are very much into, that the government has to follow the constitution which is considered to be the supreme law in India. So the Indian government is governed by the principles of rule of law. And we made it very clear by using the terms Justice, Equality, and Liberty in the Preamble of Indian Constitution.
Constitution is Supreme than the three wings of government;
Legislative (Parliament), Executive, Judiciary
In the case of, Kesavananda Bharati v State of Kerala (AIR 1973), the honorable Supreme Court held that, Rule of Law is the part of the basic structure of the Indian Constitution.
As subsequent judgments of the Supreme Court show, certain overarching principles were declared as part of the basic structure. Thus, formal equality itself is not part of basic structure; but egalitarian equality, understood as proportional equality is – as held by the court in M.Nagaraj v Union of India (2006). In that case, the court explained that the concept of egalitarian or proportional equality expects the state to take affirmative action in favour of disadvantaged sections of society within the framework of democratic polity.
In ADM. Jabalpur v Shivkant Shukla (AIR 1976 – 2 SCC) Habeaus Corpus Case,
At the time of emergency, many people were arrested under Maintenance of Internal Security Act – 1971(MISA), and in those people no one was informed about the grounds of arrest by which they were arrested, so they approached the Supreme Court of India by the Habeaus Corpus writ under Article 32 of Constitution of India, in which they held that, the detention was violating under Article 21 (Right to Life and Personal Liberty) and also violating the doctrine Rule of Law.
The Supreme Court regarding to the Writ, held that, there is no provision for the doctrine Rule of Law in the Constitution of India and only Article 21 talks about Rule of Law, and at the time of any emergency in the country, Article 21 becomes suspended. Also the doctrine Rule of Law becomes suspended as well. Hence the detention was not violating any law of the Indian Constitution.
In India, Rule of Law is given under the justiceable rights/guaranteed rights namely Fundamental Rights of Equality.
- Article 14 – Equality before Law and Equal Protection of Laws.
- Article 15 – Prohibition of Discrimination on Grounds of Religion, Race, Sex, Caste and Place of Birth.
- Article 16 – Equality of Opportunity in matters of Public Employment.
- Article 17 – Abolition of Untouchability.
- Article 18 – Abolition of Titles.
Remedy for these rights is given under Article 32, which deals with Right to Constitutional Remedies, and affirms the right of an individual to move to the Supreme Court (SC) by appropriate proceedings for the enforcement of the rights conferred in Part III of the constitution. And under Article 226, which empowers the high courts to issue, to any person or authority, including the government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them.