RULE OF LAW

Introduction and Background

In the words of the UN Vienna Declaration of 1993 “human rights are universal,
indivisible, interdependent and interrelated and therefore should be protected
and promoted in a fair and equitable manner by something as fundamental and
all-pervasive as the rule of law.’’ The latest encounter of the gangster Vikas
Dubey has sparked the debate regarding rule of law and has also raised
questions on the exercise of violence by the institutions of the state. Criticisms
have been coming from across the nation especially from the opposition that
such an act is against the fundamentals of law, that is, against the rule of law. In
the present-day context where incidences like encounters and mob lynching
have started to become obvious for people it gets necessary to indicate what
importance the rule of law has in such situations and hence the main focus of
this article is dedicated towards what does rule of law exactly means and how it
has developed through time to meet with the present scenario.
The rule of law, means that no person is above the law and also that every
person is subject to the jurisdiction of the general courts of law, irrespective of
their position. The word rule of law has been originated from England and
India. The concept of rule of law further requires that no person should be
treated harshly or arbitrarily.
Rule of Law: Meaning
As the term itself connotes, ‘Rule of Law’ means rule of law and not of men.
The expression “Rule of Law” is derived from the French phrase ‘le principe
de legalite’ meaning the principle of legality.
Defining rule of law Prof Wade expressed- “The rule of law requires that the
government should be subject to the law rather than the law subject to the
government”
According to Black’s Law Dictionary: “Rule of Law” means legal principles
of day-to-day application, approved by the governing bodies or authorities and
expressed in the form of logical proposition. 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.
The rule of Law is one of the basic and general principles of the constitution. It
is characterized in the words of Max Weber as – “legal domination as an idea
of government of law rather than an idea of men.’’
So, in essence rule of law means that everyone from the government to its
officials, together with citizens should act according to the law.
The doctrine of rule of law has been described as supremacy of the law. This
means that where there is rule of law no person can be said to be above the law,
even the functions and actions of the executive organ of the state shall be within
the ambit of the law.
Rule of law imposes a duty on all citizens in a parliamentary democracy to obey
the law and for such obedience the law itself must be just law and not arbitrary
or oppressive law.
The aim of rule of law like other constitutional principles is the uplifting of
freedom and fundamental rights of the people. The rule of law has propounded
to make sure that the executive doesn’t use law of the land or country to oppress
or curtail freedom of individuals as they are found in the bill of rights.
In the Indian context, the meaning of rule of law has somewhat been much
expanded. The Supreme Court has in various occasions further enunciated and
illustrated the rule of law through its judgement in furtherance of the basic
principles as laid down by A.V. Dicey. It is considered as a part of the basic
structure of the Constitution and, hence, it cannot be abrogated or destroyed
even by the Parliament. The ideals of constitution; liberty, equality and
fraternity have been enshrined in the preamble. Rule of law mandates that no
person shall be subjected to harsh, uncivilised or discriminatory treatment even
if the object is to protect and secure law and order.
Origin
The first proponents of the doctrine of the rule of law are believed to be Greek
philosophers including Aristotle, Plato, Cicero. For instance, Plato in his book
known as ‘Complete Works of Plato’ is found to have written that the
collapse of the state is not far where the law is made subjective to the
authorities but the states where the law is considered as supreme all the
blessings of the god fall on such state and it flourishes through all times.
The rule of law is an ancient ideal first posited by Aristotle, a Greek scholar, as
a system of rules inherent in the natural order.
In England, Rule of law began sometimes around 1215 when King John of
England signed the Magna Carta of 1215. The signing of Magna Carta indicated
the consent of the Monarchy of England to be under the law and the law to be
supreme. The doctrine of rule of law in England took a new look after the
conflict between the parliament and monarchy or king aroused. In this conflict
the parliament and the monarchy were struggling to be supreme authority. This
conflict was resolved in favour of the parliament. After parliament became
supreme over the monarchy it started making the laws which controlled and
limited power of the monarchy. Hence executive organs in England became
subjected to the law of the parliament and that was the beginning of the rule of
law in England.
In the United States of America (U.S.A.) the doctrine of rule of law was first
introduced in 1776 by the constitutional lawyers known as Paine. He is of the
view that America being a free country considers Law as the king because in
every country which is free law should be the king and no one else. More ideas
of Rule of law were further developed by the renowned English constitutional
lawyer by the name of Dicey.

Chief Justice Edward Coke of England, who held office during the reign of
King James I, is considered to be the originator of this doctrine. Justice Coke
while emphasizing the supremacy of law against the executive stated that the
King should be under God and Law. The theory of Justice Coke was developed
by Dicey in his classic work “The Law and the Constitution” which was
published in the year 1885.
Dicey’s Concept of Rule of Law
Professor A.V. Dicey is known to be the main exponent of the concept of the
rule of law. In 1885, he propounded three principles of the rule of law in his
classic book ‘Law and the Constitution’ in respect to the powers which the
government must exercise in accordance to the law. Rule of law consists of
several basic principles which law and policy makers, judges and law
enforcement agencies should consider while exercising authority in a
democratic society. This means all duties, power and functions of government,
including its organs and authorities are done in accordance with the law.
According to Dicey’s theory, rule of law has three pillars based on the concept
that “a government should be based on principles of law and not of men”, these
are-
1. Supremacy of Law;
2. Equality before the Law; and
3. Predominance of Legal spirit/ Judge made Constitution
Supremacy of Law
This is the first pillar of Dicey’s concept of rule of law.
It means that the law rules over all people including the persons administering
the law. According to Dicey the absolute supremacy of the law as opposed to
the arbitrary power of the government is what constitutes the rule of law. In
other word a man should only be punished for the distinct breach of law, and
not for anything else. The person cannot be punished by the government merely
by its own fiat but only according to the established law. This in essence means
that no man can be arrested, punished or be lawfully made to suffer in body or
in goods except by the due process of law and for breach of a law established in
the ordinary legal manner before the ordinary courts of the land.
Further, Dicey asserted that discretion has no place where there is supremacy of
law. According to him discretion is a link to arbitrariness. Dicey says that
wherever there is discretion, there is room for arbitrariness and discretionary
authority on the part of the government to jeopardize the legal freedom of the
people. It means the exclusion of the existence of arbitrariness on the part of the
government.
Equality before Law
The second important pillar of Dicey’s concept of Rule of Law is Equality
before Law-
a. While explaining this aspect of the doctrine, Dicey stated that there must
be equality before the law or equal subjection of all classes to the
ordinary law of the land administered by the ordinary law courts.
b. Dicey believed that the exemption of civil servants from the jurisdiction
of the ordinary courts of law and providing them with special tribunals
was the negation of equality.
 c. He stated that any encroachments on the jurisdiction of the courts and any
restriction on the subject’s unimpeded access to them are bound to
jeopardise his rights.
In other words, every man irrespective of his rank or position is subject to the
ordinary law and jurisdiction of the ordinary court and not to any special court.
According to him special law and special courts is a threat to the principles of
equality. Therefore, he is of the view that there should be the same set of laws
for all the people and should be adjudicated by the same civil courts.
Predominance of the legal spirit
The third pillar of Dicey’s concept of Rule of Law is predominance of legal
spirit-
a. Dicey observed that in many countries’ rights such as the right to
personal liberty, freedom from arrest, freedom to hold public meetings,
etc. are guaranteed by a written Constitution; in England, it is not so.
b. In England, those rights are the result of judicial decisions in concrete
cases that have actually arisen between the parties.
c. Thus, he emphasized the role of the courts of law as guarantors of liberty
and suggested that the rights would be secured more adequately if they
were enforceable in the courts of law than by mere declaration of those
rights in a document.
According to Dicey, for the prevalence of the rule of law there should be an
enforcing authority and that authority he found in the courts. He believed that
the courts are the enforcer of the rule of law and hence it should be free from
impartiality and external influence. Independence of the judiciary is therefore an
important pillar for the existence of rule of law.
He asserted that the courts of law and not the written constitution are the
ultimate protector of an individual’s fundamentals.
Dicey’s theory has been criticised by many from various angles but the basic
tenet expressed by him is that power is derived from, and is to be exercised
according to law. In substance, Dicey’s emphasis, on the whole, in his
enunciation of rule of law is on the absence of arbitrary power, and
discretionary power, equality before law, and legal protection to basic human
rights and these ideals remain relevant and significant in every democratic
country even today.

Criticism of Dicey’s Concept

 Dicey has ignored the importance of the codification of laws.
 Codification of laws is important to ensure the rights of an individual as it
provides certainty, anything which is codified is certain and thus, could
be followed more effectively.
 He has misunderstood the concept of Droit administratif (the body of
rules which regulate the relations of the administration or of the
administrative authority towards private citizens).
 According to him, the system was designed to protect the officials but in
certain respects, it was specifically effective in controlling the
administration than the common law system.
Rule of Law Characteristics
The following are the characteristics of the Rule of Law:
 There must be the supremacy of law.
 No one should be above the law; everybody is equal before the law.
 It states that no one can be prosecuted unless and until he/she has violated
the laws.
o The accusation should be proven by an autonomous entity such as
a court.
 It protects against the arbitrary actions of men.
 All the actions of the organs of government must be in accordance with
laws.
 The judiciary is the preserver and protector of the rule of law.
 It takes into account the principle of natural justice.
 It is the fundamental basis of the democracies around the world.

Rule of Law and Indian Constitution

Constitution of India, 1950 is the law of the land and prevails over the
Judiciary, the Legislature and the Executive. These three organs of the state
have to act according to the principles engraved in the constitution.
The Preamble of the Constitution itself prescribes the ideas of Justice, Liberty
and Equality. These concepts are further enunciated in Part III of the
Constitution and are made enforceable. All three branches of the government
are subordinate i.e. the Judiciary, Legislature and the Executive are not only
subordinate to the Constitution but are bound to act according to the provisions
of the Constitution.
Article 13 promotes the doctrine of Rule of Law in India- The “laws’’ defined
under Article 13 as rules, regulations, byelaws and ordinances can be struck
down if they are contrary to the constitution of India.
Article 14 guarantees the right to equality before law and equal protection of
law-It states that no one shall be denied equality before the law and the equal
protection of the law by the state.
The doctrine of judicial review (It is the power of the judiciary to examine the
constitutionality of legislative enactments and executive orders of both the
Central and State governments) is embodied in the Constitution and the subjects
can approach the High Courts under Article 226 and Article 227 and to
the Supreme Courts under Article 32 and Article 136. If the Executive or the
government abuses the power vested in it or if the action is mala fide, the same
can be quashed by the ordinary courts of law.
The Supreme Court of India in Chief Settlement Commissioner Punjab v.
Om Prakash observed that in our constitutional system, the central and most
characteristic feature is the concept of the rule of law which means, in the
present context, the authority of the law courts to test all administrative action
by the standard of legality. The Court added that the doctrine of rule of law
rejects the conception of the dual state in which government action is paced in a
privileged position of immunity from control by law.
Rule of law has no fixed articulation in the Indian constitution though the Indian
courts refer to this phrase in variety of its judgements. The maxim ‘The King
can do no wrong’ has no application in India and all public authorities are
made subject to jurisdiction of ordinary law courts and to the same sets of
laws. In 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.
In the case of Maneka Gandhi v. Union of India, the Supreme court in clear
words observed that Article 14 strikes at arbitrariness in state actions and
ensures fairness and equality in treatment. 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. Art 15, 16, 23 further strengthened the ideal of
equality by the incorporation of protective discrimination as a means of
ensuring equality amongst equals.
Article 13 of the Indian Constitution is another example which upheld the
doctrine of Rule of Law in India. The “laws’’ defined under Article 13 as rules,
regulations, bye-laws and ordinances can be struck down if they are contrary to
the constitution of India. In Keshavananda Bharti v. State of Kerala, the
Supreme Court has included the Rule of Law as the basic feature of the
Constitution. In this case, though the Supreme Court upheld the amending
power of the Parliament which extends to every Article provided under the
Constitution but has limited that power by providing that such power
cannot be used in amending the basic feature of the Constitution.
Fundamental rights are universal and inalienable rights. Such fundamental
rights can only be protected by the state that respects the Rule of Law.
Fundamental rights are provided under part III of the Indian Constitution. Such
Fundamental Rights cannot be abrogated and can be enforced under Article 32
and 226 of the Constitution. The Indian Constitution is the supreme law of the
land and every law has to be in conformity with the Constitution. If any law is
in violation of any of the provision of the Constitution, especially the
fundamental rights shall be declared void. One of the basic postulates of the
Rule of Law besides justice and equality is Liberty. The fundamental right to
life and personal liberty is provided under Article 21 of the Constitution. This
Article postulates that no person shall be deprived of his life and liberty except
by the procedure established by law, thus making the law supreme. Such right
also guarantees that no person is convicted except for the violation of law which
is in force at the time of commission of an offence and not for any other act.
The principle of double jeopardy and self-incrimination is also well recognized
in the Indian Constitution.
Article 19 which provides various freedoms to the individual is again something
which runs on the principles of Rule of Law as these freedoms can only be
curtailed on the grounds of reasonableness which should be satisfied on the
basis of Article 14, 19 and 21 of the Constitution. These three articles are so
essential to the Indian Constitution that they are often called as the Golden
Triangle Articles of the Constitution.
In E.P Royappa v. State of Tamil Nadu & Another, the Supreme Court held
that for the state to justify its action of curtailment of fundamental right it has to
fulfil all the requirements provided under Article 14, 19 and 21.
Another significant derivative of rule of law is judicial review. Judicial review
is the essential part of the rule of law. It not only protects the constitutional
principles but also checks administrative actions and its legality. All actions of
the state authorities and bureaucracy are all subject to judicial review and are
accountable to the courts for the reasonableness of their actions.
These are the essential ingredients and the basic assumption of rule of law and
not of men in all civilized nations. The Indian constitution has also provided
adequate provision for the independence of judiciary as it is the guardian of the
constitution and fundamental rights of the citizens. Judicial review is considered
as one of the basic features of the constitution. Hence the principles of rule of
law run entirely through the fabric of the Indian Constitution.
Exceptions to Rule of Law
In order to cope up with the need of practical government, a number of
exceptions have been engrafted on these ideals of rule of law provided be Dicey
in modern democratic countries, e.g., there is a universal growth of broad
discretionary powers of the administration; many administrative tribunals have
developed; the institution of preventive detention has now become the normal
feature in many democratic countries. Nevertheless, even after incorporating
certain exceptions the basic ideas of rule of law are still preserved and
promoted.
In India, Dicey’s concept of rule of law cannot be said to be followed in strict
sense, there are certain exceptions provided under the Indian Constitution and
other laws. For example:
 Existence of wide discretionary power to the executive-
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. Article
85 provides the president with discretion in relation to the prorogation of either
house of the parliament and the dissolution of the house of people. The
governor on the other hand has discretion in sending the report to the president
under Article 356 of the constitution and in reserving bills for consideration
under Article 200.
Police which are a part of the executive are given wide power of arrest without
warrant in case of cognizable offences. Criminal courts in India have wide
discretionary power in providing sentences.
 Immunities and privileges-
Under Indian constitution equality before law doesn’t mean that the power of a
private citizen should be the same as public official. Public officials like
ministers, local authorities, public officers and others of the alike have many
powers, immunities and privileges which ordinary citizens don’t have. For
example-
1. The President/Governor is not answerable to the court of law in discharge
of his executive functions.
2. No criminal proceedings whatsoever can be instituted against President or
Governor of state, while he is in office.
3. No civil proceedings in which relief is claimed can be filed against the
President or Governor except after an expiration of a 2 month notice that
is served on him.
4. Under International laws, the visiting heads of state, heads of
government, ministers, officials and foreign diplomats who are posted in
the country are not subjected to jurisdiction of local courts in discharge of
their official functions.
5. Police: As part of the executives, police are given discretionary powers of
arrest without warrant for cognisable offenses.
6. Public servants: Administrative officers, municipal authorities, etc. have
been provided with certain immunities and privileges for better
functioning of the system.
 7. Criminal courts: Indian criminal courts possess broad discretionary
authority regarding sentencing.
8. Diplomatic immunities: Under international law, visiting heads of state,
heads of government, ministers, officials and foreign diplomats posted in
the country are not subjected to the jurisdiction of local courts in the
discharge of their official functions.
Indian Case Laws
As mentioned earlier, rule of law is not expressly provided under the Indian
Constitution but it has been assertively pronounced as the essential part of the
Constitution by the Supreme Court through several judgements. Some of them
are as under:
A.K Gopalan Vs State of Madras, 1950 AIR 27
A.K Gopalan was a communist leader who was mainly active in Madras
Presidency (now called Kerala). He was detained in the jail of Madras, and
whenever he came out of the prison, a new detention order was issued against
him, and he had to go to jail again. After several years of detention, he
challenged his preventive detention. A.K Gopalan argued that this prolonged
detention had violated his right to life and personal liberty guaranteed
under Article 21 of the Indian Constitution.
A.K. Gopalan was the political opponent of the government. Since December
1947, he was illegally detained several times and even after the court led him
free, he was still kept under detention by the government.
In 1950, he was again detained under the Preventive Detention Act, 1950.
Then, A.K Gopalan filed a writ petition under Article 32 of the Indian
Constitution challenging his detention under the Preventive Detention Act,
1950.
According to the Preventive Detention Act, 1950, the detainee is not given any
reasons for his detention. Therefore, A.K Gopalan argued that this act is
unconstitutional as it violates his fundamental rights under Article 19(1)(d), that
is, the right to freedom of movement and Article 21, that is, the right to life and
personal liberty.
The following issues were raised in the case of A.K Gopalan vs the State of
Madras:
  Whether the Preventive Detention Act of 1950 violates Article 19 and 21
of the Indian Constitution?
 Whether Articles 19 and 21 of the Indian Constitution are dependent on
each other, is there any relation between the Articles?
 Whether the ‘procedure established by law’ under Article 21 of the
Indian Constitution is same as due process of law?
Judgement
The judgment of this case was given by 6 judges constitutional bench of the
Supreme Court with the ratio of 5:1 majority. Justice Fazl Ali gave
the dissenting opinion.
The court rejected the arguments given by A.K. Gopalan and said that personal
liberty means freedom of the physical body only and nothing beyond it. In this
way, the court restricted the meaning of Article 21 of the Constitution.
Furthermore, the Supreme Court also restricted the meaning of Article 19 of the
Indian Constitution and stated that only a free man can enjoy freedom under
Article 19 of the Constitution. This means that when a person is under
detention, he cannot enjoy the freedom given under Article 19 of the Indian
Constitution.
The court further added that Articles 19 and 21 of the Indian Constitution are
not related to each other as Article 21 is guaranteed against loss of personal
liberty. In contrast, Article 19 provides protection against unreasonable
restrictions. Moreover, the court clarified that ‘procedure established by law’
and ‘due process of law,’ i.e., the principles of natural justice are different from
each other.
At last, the Supreme Court rejected the petition filed by A.K. Gopalan and held
the Preventive Detention Act of 1950 to be constitutional and stated that this
Act does not violate Article 19(1)(d) and Article 21 of the Indian Constitution
that provides fundamental rights to its citizens.
In A.K. Gopalan vs the State of Madras, the Supreme Court interpreted the
meaning of Article 21 and restricted it by diminishing its real value and gave the
decision in favour of the government. However, among the 6 judges’ bench,
only Justice Fazl Ali was not favouring this judgment. He said that detaining
someone without valid reasons, and justification for his detention is illegal and,
hence, violative of Article 21.
After several years, in the case of Maneka Gandhi vs Union of India, 1978, the
Supreme Court overruled this judgment and held the opinion of Justice Fazl Ali
to be correct. The court further stated that Article 21 of the Constitution has a
wider scope.
In the A.K. Gopalan case, the court restricted the meaning of Article 21 to the
extent that personal liberty only means freedom of personal body and nothing
else. The court even restricted the scope of Article 19 and held that the
Preventive Detention Act, 1950, is constitutional and does not violate any
fundamental right.
Moreover, justice Fazl Ali gave the dissenting view that proved correct in the
case of Maneka Gandhi vs Union of India. In this case, the Supreme Court
correctly interpreted the meaning of Article 19 and Article 21 and gave it a
broader scope.
ADM Jabalpur v. Shivkant Shukla:
This case is also known as the “Habeas Corpus case.” It is one of the most
important cases regarding the rule of law.
Before the Hon'ble Court, the question was whether there was any rule of law in
India other than Article 21 of the Indian Constitution.
Although the majority’s decision was negative, Justice H.R. Khanna issued a
dissenting opinion by stating that the state has no power to deprive a person of
freedom even without the authority of law, even in the absence of Article 21.

A.K Kraipak V Union of India, AIR 1970 SC150

Supreme Court on the question whether the principle of natural justice can be
followed in administrative function held that every instrumentality of the state is
bound by the doctrine of rule of law and is charged with the duty of discharging
their functions in a just, fair and reasonable manner, which forms the basic
principle of Rule of Law without which the concept of Rule of Law has no
validity. The rule of law is applicable to the entire field of the administration as
every organ of the state is regulated by the rule of law.
Indra Nehru Gandhi V Raj Narayan, (1975) 2 SCC 159
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.
Bachan Singh v. state of Punjab Singh, AIR 1980 SC 898
This a landmark judgement on death penalty. The question whether death
penalty can be imposed under section 302 of IPC was discussed in this case.
While the majority of the judges held that the death penalty can be imposed
under rarerest of the rare situation, justice Bhagwati dissented with the majority
opinion and said said that imposition of the death penalty under Section 302 of
IPC is ultra vires and void as it violates Articles 14 and 21 of the Constitution.
Justice Bhagwati has emphasized that rule of law denies any room for
arbitrariness and unreasonableness. To ensure this, he has suggested that the
power of the parliament to make law should not be unfettered and the excesses
of executive and legislative power should be brought under the check by the
independent judiciary so that the rights of the citizen can be protected.
Sambamurthy v. state of Andhra Pradesh, 1987 AIR 663
In this case the Supreme Court upheld the principles of rule of law as the basic
structure of the Indian Constitution. Clause 5 of Article 371-D was challenged
before this court which provided the government with the power to modify or
annul the administrative tribunal’s order. Chief Justice Bhagwati in this case
held clause 5 of Article 371-D as unconstitutional on the basis of doctrine of
basic structure. He held that clause 5 is contrary to the principle of rule of law
which is the basic structure of the Constitution and is thus unconstitutional.
Judicial review which is one of the tenets of rule of law is provided to the courts
under the constitution to ensure that the law is observed and is complied with
by the executive and other authorities and such power of judicial review cannot
be taken away from the court. Any such attempt would be against the Rule of
law and thus ultra vires.
Yusuf Khan v. Manohar Joshi, 2000 (2) SCC 696
The SC laid down that the constitution places a duty over the state to maintain
and preserve law and order and to see that no act violence overpasses the
mandate provided by the rule of law.
Hence, it is quite evident that the concept of rule of law is gaining importance
and attention and judicial efforts are made to make it stronger.
Modern Concept of Rule of Law
 In today’s scenario, Dicey’s concept of Rule of Law is not accepted in
totality.
 The modern concept of the Rule of Law is fairly wide and therefore it
sets up an ideal for any Government to achieve.
 The modern idea of Rule of Law was formed by the International
Commission of Jurists, otherwise called the Delhi Declaration, 1959,
which was later affirmed at Lagos in 1961.
 According to the Modern Concept, the ‘Rule of Law’ implies:
o Functions of the government in a free society should be so
exercised in which the dignity of a man as an individual
is upheld.
o Effective government capable of maintaining law and order.
o No arrest without the authority of law, Legal aid, public trial and
fair hearing and Presumption of Innocence.
o Independent Judiciary
 Thus, the rule of law in the modern sense ensures that there is
encouragement of political interest and where the criticism of the
government is not only permitted but also given a positive merit.
From the above, it is clear that there has been a constant alteration and
modifications in the concept of Rule of Law to suit the need of the present
scenario. According to Prof. Baxi, A study of Keshvananda, Indira Gandhi
and other Habeas corpus cases provides a distribution of Indian Judicial
thought on the conception of the rule of law which has evolved well over a
quarter century. The Concept of Rule of Law has been given a new dimension
by the liberal interpretation of the Supreme Court of India. Rule of law today
envisages not arbitrary power but controlled power.
The modern concept of the Rule of law of law is now so greatly developed that
it provides an ideal setup for any government to achieve. The concept was
developed by the International Commission of Jurist, known as Delhi
Declaration 1959, which was later confirmed at Lagos in 1961. According to
this formulation, the dignity of man as an individual is upheld. It implies that
the rule of law should be so applied as to create conditions in which the dignity
of an individual should be given priority. The dignity of an individual doesn’t
include only the recognition of civil and political rights but also social,
economic, educational, cultural and developmental rights. In Short for the
proper incorporation of the Rule of law, Human Rights mechanism should be
ensured. Particularly in the content of third world countries like India, Human
Rights mechanism is utmost necessary.
Moderating the Dicey’s meaning in the present day context Prof. Wade has
included, effective control of and proper publicity for delegated legislation
under the concept of Rule of Law, particularly when it imposes penalties that
should as far as practicable be defined; every man should be responsible to, the
ordinary laws whether he be a private citizen are public official, the private
man’s right should be determined by impartial and independent tribunals and
fundamental private rights are safeguards by ordinary laws of England.
Conclusion
The above-mentioned judgement clearly states the evolution in the concept of
rule of law in India. The basic principles of rule of law are not followed stricto
sensu in the Indian context. It has modified the application of rule of law from
time to time to meet the exigency of the situation.
Rule of law is the fundamental principle of governance in any civilized
democratic country. It is the antithesis of arbitrariness. A democratic country
like India prides itself on the rule of law. When a crime is committed a process
is followed. The perpetrator is arrested, contingent on judicial sanction.
Suspects are questioned. Evidence is collected. Interrogations are conducted. A
case is built up. The court examines the testimonies and evidence. The
defendant has a right to legal defense.
The judiciary after scrutinizing the whole case, based on the law, hands down
its decision, which can then be appealed against. In every civilized society, this
process is undertaken, not just because the criminal jurisprudence provides that
the guilty is presumed to be innocent until convicted, but because this is the
only way to provide the system with legitimacy so as to provide the arbitrary
exercise of power. 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. Encounter killings are the complete denial of such due process which
forms the essential part of rule of law. Observing rule of law is the true basis of
a democratic society without it democracy is nothing but an empty phrase.