Rule of Law

Author : Karnit Chadha, ([email protected])

Published on : 14-01-2023, 

Introduction

The principle of the Rule of Law is a key component of modern civil society. The rule of law is the rule of statutes, regulations, and other rules. It refrains from the arbitrary actions of men. The Rule of Law establishes an equilibrium between the rights of the individuals and the duties of the state. The idea of rule of law is based on the principles of liberty, fair treatment, due process, equity, equality, and transparency. The phrase ‘Rule of Law’ has been derived from the French phrase ‘le Principe de legalite’ which means the principle of legality. There are several scholars who have tried to define rule of law. According to Black’s law dictionary, 

“Rule of Law is the supremacy of law in which decisions are made based on well-established principles or laws, with no discretionary involvement in the application of such principles or laws.”

According to Oxford Advance Learner’s Dictionary: “Rule of Law means the situation in which all the citizens as well as the state are ruled by the law”.

For the United Nations (UN) system, the rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency.

Rule of law is the supreme law and no living person can override it. Lord Denning in Gouriet v. Union of post office workers (1978)¹ held the law is supreme and it is the responsibility of everyone to abide by it. Irrespective of the power or status an individual possesses, law of the land shall be above them and it shall prevail under all circumstances. Rule of law implies that everyone, including the authority and its representatives, as well as individuals, should follow the law. In case of any violation of such law, the violator irrespective of the status, caste, creed, or other attributes shall be punished following the provisions of the concerned constitution.

The supreme court on India on various occasions have spoken and gave decisions on rule of law based on dicey’s interpretation of rule of law. Dicey was the first person who ever spoke about rule of law. The Supreme Court has stated in several landmark judgments that the Rule of Law comes under the basic structure of the Constitution of India and as such, it cannot be abolished or modified even by the Parliament. 

Principles of Rule of Law

A.V Dicey proposed three postulates or principles of Rule of Law, which are as follows:

1. Supremacy of Law 
2. Equality before the Law
3. The predominance of legal spirit

1. Supremacy of Law– It is the first postulate of Dicey’s theory of rule of law. It indicates that the law is supreme over all individuals. It also includes the individuals who are making, administering, or executing the laws. Dicey claimed that personal discretion can have no place where the rule of law is supreme. Discretion, he believes, is linked to arbitrary nature. According to Dicey, whenever a decision is taken through personal discretion, there is ample opportunity for the state’s arbitrary nature as well as discretionary control to undermine the fundamental liberty of the individuals. In the judgement of The State of Bihar vs Rani Sonabati Kumari², the court that every authority within the State ‘including the Executive Government should consider itself bound by and obey the Law. When once an order has been passed which the Court has jurisdiction to pass, it is the duty of all persons bound by it to obey the order so long as it stands, and it would tend to the subversion of, orderly administration and civil Government, if parties could disobey orders with impunity. This case highlights the supremacy of law and that the law is above all. It is the duty of everyone to follow the law.

2. Equality before law– The second postulate of Dicey’s theory of Rule of Law is Equality before law. It states that every individual, regardless of status or rank, is subject to ordinary laws made by their respective state as well as the jurisdiction of the ordinary court, not any special court. Every citizen of a particular state shall be governed under the same code and the code shall not be different for anyone. Article 14 of the Indian Constitution talks about equality before law which states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”. Additional magistrate in Jabalpur V S. S. Khanna ³stated that “Every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”. He wrote “With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen”.

3. Predominance of Legal Spirit– The third postulate of Dicey’s theory of Rule of Law is the predominance of legal spirit. As per Dicey, for the rule of law to prevail, there has to be an enforcement institution, which he recognised in the court system. According to him, court is a place where actual enforcement of laws take place. So, it is important for every state to have their respective judicial courts in order to uphold and protect the law of the state. Additional magistrate in Jabalpur V S. S. Khanna stated that “We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result from the general principles of the constitution”.

Rule of Law and The Indian Constitution

In order to develop Indian democracy, rule of law has played a great role. Keshvananda Bharti v. State of Kerela, In this case, the Supreme Court enunciated the concept of rule of law as one of the most important aspects of doctrine of basic structure. Rule of law is enriched in The Constitution of India. Any citizen aggrieved by violation of their legal rights under the Indian Constitution can approach Supreme court or High court under Article 32 and 226 of the Indian Constitution. the Supreme Court has the power to issue writs in the nature of Habeas Corpus, mandamus, prohibition, quo warranto, and certiorari. The power of judicial review is also given to Supreme Court in order to prevent any ultra vires law so as to preserve ‘Rule of law’

There is no fixed meaning of “Rule of Law” in India but various other interpretations have been given to rule of law in different judgements of the Indian courts. All public authorities have to follow the same set of rules and are subject to the same law enforced. Indian constitution is the law of the land and prevails over Judiciary, the Legislature and the Executive. These three organs of the state have to act according to the principles engraved in the constitution.

There are various provisions in the Indian Constitutions which uphold rule of law. Article 14 assures every citizen of India with equality. It states that no one shall be denied the equality before law and the equal protection of the law by the state. Rule of law which is the basic feature of the Indian Constitution excludes arbitrariness. Where there is arbitrariness there is denial of Rule of Law. In the case of Maneka Gandhi v. Union of India⁴, the Supreme court in clear words stated that Article 14 strikes at arbitrariness in state actions and ensures fairness and equality in treatment. Art 15, 16, 23 further strengthened the ideal of equality by the incorporation of protective discrimination as a means of ensuring equality amongst equals. It is also explained in Som Raj and ors. etc vs State of Haryana And Ors⁵, It was held by the supreme court that the order of appointment would be in the order of merit of candidates from the list and must be in accordance with rules. The exercise of power should not be arbitrary. The absence of arbitrary power is the first postulate of rule of law upon which our whole constitutional edifice is based. In a system governed by Rule of Law, discretion when conferred upon an executive authority must be confined within clearly defined limits. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of Rule of Law

IS EQUALITY A PART OF THE FUNDAMENTAL FEATURES OR THE BASIC STRUCTURE OF THE CONSTITUTION?

As stated in M Nagraj V Union of India⁶, at the outset, it may be noted that equality, rule of law, judicial review and separation of powers are distinct concepts. They have to be treated separately, though they are intimately connected. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their significance if judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things justice both social and economic. Secondly, a federal Constitution with its distribution of legislative powers between Parliament and State legislatures involves a limitation on legislative powers and this requires an authority other than Parliament and State Legislatures to ascertain whether the limits are transgressed and to prevent such violation and transgression. From these observations, which are binding on us, the principle which emerges is that “equality” is the essence of democracy and, accordingly a basic feature of the Constitution. This test is very important.

Separation of Powers

Separation of powers refers to a system of government in which the powers are divided among multiple branches of the government, each branch controlling different facet of government. According to this theory, each organ of the government shall have distinct features and shall be given separate powers. It is connected with rule of law as given in the case, The Secretary to Govt. of Kerala, Irrigation Department and Ors. vs. James Varghese and Ors.⁷

Even without express provision of the separation of powers, the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of Rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of Indian Constitution.

Independence of courts from the executive and legislature is fundamental to the Rule of law and one of the basic tenets of Indian Constitution. Separation of judicial power is a significant constitutional principle under the Constitution of India.

Important judgements which talks about ‘Rule of Law’

Government of NCT of Delhi vs. Union of India (UOI) and Ors.⁸

Besides providing a quasi federal system in the country and envisaging the scheme for distribution of legislative powers between the State and the center, it emphasizes the establishment of the Rule of law. The form of Government envisaged under a parliamentary system of democracy is a representative democracy in which the people of the country are entitled to exercise their sovereignty through the legislature which is to be elected on the basis of adult franchise and to which the executive, namely, the Council of Ministers is responsible. The legislature has been acknowledged to be a nerve center of the State activities. It is through parliament that elected representatives of the people ventilate people’s grievances. It is stated that democracy in India is a product of Rule of law which aspires to establish an egalitarian social order and that it is not only a political philosophy but also an embodiment of constitutional philosophy. Aspirations of a democratic way of life, based on the Rule of law, are fulfilled. Liberty, dignity and autonomy are constraining influences on the power of the state.

A Constitution such as ours is expected to provide guidance on what should be regulated by the impersonal Rule of law and what may be settled by the competition for power among parties, among factions, and among political leaders.

These principles, it is well to remind ourselves, are not just political exhortations. They constitute the essence and substance of the Constitution and provide the foundation for the fine print of governance. It is through the expression of popular sovereignty that the Constitution has provided an assurance for the enforcement of equality and of equal protection of the law. The four founding principles constitute the means of achieving accountability and amenability to the Rule of law.

Indira Nehru Gandhi vs. Raj Narain,⁹

The court held that rule of law is also part of the basic structure and in the list, rule of law was also added and it means that no amendment can be done in rule of law. In this case the 39th amendment to the Constitution was challenged which has placed the election of President, Prime Minister, Vice-President and the Speaker of Lok Sabha unjustifiable in the courts of law. Holding the amendment as unconstitutional chief justice Ray found the amendment as violative of the basic structure of the Constitution i.e., Rule of Law. Rule of Law being anti thesis to arbitrariness does not empower the parliament to pass a retrospective law validating an invalid election. Such exercise of power is opposed to the basic principles of Rule of Law.

In more recent judgements, such as, K.S. Puttaswamy (Aadhaar-5J.) v. Union of India¹⁰, Dipak Misra, C.J. and Sikri and Khanwilkar, JJ.¹¹ observed that the essence of Rule of Law is to preclude arbitrary action. There are three aspects of the Rule of Law, which are as follows:

(a) A formal aspect which means making the law rule.

(b) A jurisprudential or doctrinal aspect which is concerned with the minimal condition for the existence of law in society.

(c) A substantive aspect as per which the Rule of Law is concerned with properly balancing between the individual and society.

Further, when we talk of jurisprudential Rule of Law, it includes certain minimum requirements without which a legal system cannot exist and which distinguished a legal system from an automatic system where the leader imposes his will on everyone else. These requirements have collectively been described as the “inner morality of law”. In addition to

jurisprudential concept, which is important and an essential condition for the Rule of Law, the substantive concept of the Rule of Law is equally important and inseparable norm of the Rule of Law in the real sense. It means guaranteeing fundamental values of morality, justice and human rights, with a proper balance between these and the other needs of society.

Exceptions to Rule of Law

Yusuf Khan v. Manohar Joshi¹²

The Supreme Court ruled that the constitution imposes a duty on the state to protect and preserve peace and order, as well as to ensure that no act of violence exceeds the mandate granted by the rule of law for that certain exceptions are given to a particular class of people.

These exceptions are strictly in place in India. There are certain exceptions to rule of law in order to cope up with a practical government in India. In India, rule of law is not followed in a very strict way due to the following exceptions-:

1. 1. Wide discretionary power is given to certain citizens- President and governor of this state are given wide discretionary power in relation to certain matters under the Indian Constitution. Under Article 72 and 161, the president and the governor respectively have a prerogative to grant pardons, reprieves, respite or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.
   2. Immunities and privileges-
      • Article 359 (1) provides that where a proclamation of emergency is in operation the president may by order, declare that the right to move court for the enforcement of such rights conformed by part (except article 20 and 21) shall remain suspended.
      • Article lays down that the president and the governors are exempted from any from any criminal proceedings during tenure of their office.
      • Under international law, foreign sovereign and ambassadors enjoy full immunity from any judicial process.
      • Certain Members of society are governed by special rules in their professionals, i.e Lawyers, doctors, nurses, army etc.

Conclusion

The abovementioned points shows the evolution of the concept of Rule of Law. Rule of Law is a tool for all the citizens that protects their rights and ensures that no citizen of any caste, creed, religion is discriminated in the society. Various scholars tried give an interpretation to the concept of rule of law. Dicey was the first person in 1885 to give a very accurate meaning and significance to rule of law. Rule of law is the fundamental principle of governance in any civilized democratic country. It is the antithesis of arbitrariness. Every domestic country in the world prides itself on the rule of law. There is no place for arbitrariness in rule of law and if there is any arbitrary act, there is a denial of rule of law.

Rule of law is a supreme law in India and is followed by every citizen of the country. A country like India cannot work without the existence of rule of law in its constitution. There are various cases given which shows the importance of the existence of Rule of Law. The fundamental principle of the rule of law is that every human being, even if he is a criminal, is entitled to basic human rights and due process.

“It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision [in Bush v. Gore]. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is pellucidly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” – John Paul Stevens

1 Lord Denning in Gouriet v. Union of post office workers ( [1978] AC 435