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CHAPTER 1 1. INTRODUCTION Rule of law is the supreme manifestation of human civilization and culture and is a new 'lingua franca' of global moral thought. It is an eternal value of constitutionalism and inherent attribute of democracy and good governance. The term 'Rule of law' is derived from the French phrase 'la principe de legalite' which means the 'principal of legality'. It refers to 'a government based on principles of law and not of men'. In other words, the concept of 'la Principe de legalite' is opposed to arbitrary powers.1 It is a legal principle, of general application, which is sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition called a 'Rule,' because in doubtful or unforeseen cases it is a guide or norm for their decision. The Rule of law, sometimes called 'the supremacy of law', provides that decisions should be made by the application of known principles or laws without the
intervention of discretion in their application.
The concept of Rule of law is of old origin. It is an ancient ideal, and was discussed by Ancient Greek philosophers such as Plato2 and Aristotle3 around 350 BC. The Rule of law is viable and dynamic concept and like several other concepts, is not capable of any accurate definition. This phrase is also sometimes used in other sense. This, however, does not mean that there is no agreement on the basic values which it represents. The rule of law (also known as nomocracy) generally refers to the influence and authority of law within society, especially as a constraint upon behavior, including behavior of government officials. Therefore, the Rule of law means that the law rules, which is based on the principles of freedom, equality, non-discrimination, fraternity, accountability and non
arbitrariness and is certain, regular and predictable, using the word law in the sense of 'Jus' and 'lex' both. In this sense, rule of law is an ideal. It is modern name for Natural law. In ancient
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Plato, 'Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state. 3 Aristotle, Law should govern and those in powers should be servants of the laws.
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times, man has always appealed to something higher than which is his own creation. In Jurisprudence, Romans called it 'jus naturale' Mediaevalists called it the 'law of god'. Hobbes, Locke, Rousseau called it a social contract' or natural law and the modern man calls it 'Rule of law.'
CHAPTER 2 2. ELEMENTS OF RULE OF LAW
Different people have different interpretations about exactly what "rule of law" means. According to political theorist Judith N. Shklar, "the phrase 'the Rule of Law' has become meaningless thanks to ideological abuse and general over-use", but nevertheless this phrase has in the past had specific and important meanings.4 There are number of elements of Rule of law which provide a better understanding of the concept, they are as follows:
2.1 Abhorrence of arbitrary power: Every person in society is governed by law, including governmental officials and law-enforcement officials. The court can apply the doctrine of ultra vires equally to every government agency and official for acts that are outside the authority conferred by law. Also, a person can only be punished for a breach of an existing law or regulation, and never for breach of a law not existing at the time doing something.
2.2 Equality before the law: Courts must apply laws equally to all people regardless of their race, class wealth, religion, etc. Every accused person should be entitled to a fair trial, to be informed of the allegations against have an opportunity to rebut the charge against him, to have an opportunity to rebut the charge against him and to have his conduct assessed by impartial judges.
2.3 A formal, rational court system: Formality and rationality describe a system with much predictability and little discretion, a system with regular, open and stable
Ibid.
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procedure. The advantage of such a system is that its behavior is consistent and objectively verifiable.
2.4 Judicial independence and separation of powers: The judiciary should be independent of the legislative and executive, and every judge should be free to decide matters before him without any improper influences, inducements or pressures. The power of a government should be spit into three are adequate checks and balances to minimize the possibility of the abuse of power. All state functionaries must at all times act in accordance with the law and no act of state should be autocratic, oppressive, capricious or against law.
CHAPTER 3 3. DEVELOPMENT OF RULE OF LAW
3.1 United Kingdom The Rule of law, in UK, was developed over the centuries as a brake on arbitrary power. The modern concept of Rule of law owes much to the great battles between the English kings and their subjects, the struggle for supremacy between parliament and Stuart kings, and finally the war between the British Empire and its American Colonies. On June 15, 1215 in the meadows of Runnymede, King John and his rebellious barons agreed to the great charter known as Magna Carta. The great charter was the first significant written instrument limiting the power of the king and confining him to what the barons regarded as good governance. These promises were a bargain between the king and the feudal lords dictated by the force of arms.5 The role of Sir Edward Coke, Lord Chief Justice of England in the fight against the absolute power of Stuart kings, is epic in its dimensions. Sir Edward coke is said to be the originator of this concept, when he said that the king must be under the god and law and thus vindicated the supremacy of law over the pretensions of the executives.
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Later, Prof. Albert Venn Dicey developed this concept. He was an individualist. He wrote about the concept of rule of law at the end of the golden Victorian era of laissez faire in England. That was the reason why Diceys concept of the rule of law contemplated the absence of wide powers in the hands of governmental officials. According to him, wherever there is discretion, there is room for arbitrariness. Dicey developed the contents of his thesis by peeping from a foggy England into a sunny France. In France, Dicey observed that the government officials exercised wide discretionary powers and if there was any dispute between a government official and private individual it was tried not by an ordinary court but by a special administrative court. The law applicable in that case was not ordinary law but a special law developed by the administrative court. From this Dicey concluded that this system spelt the negation of the concept of rule of law which is secret of Englishmans liberty. Therefore, dicey concluded that there was no administrative law in England. Diceys formulation of the concept of Rule of law, which according to him forms the basis of the English constitutional law6, contains three principles:
1. Absence of discretionary power in the hands of the governmental officials. By this Dicey implies that justice must be done through known principles. Discretion implies absence of rules, hence in every exercise of discretion there is room for arbitrariness.
2. No person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of land. In this sense, the rule of law implies: a) Absence of special privileges for a government official or any other person b) All the persons irrespective of status must be subjected to the ordinary courts of the land. c) Everyone should be governed by the law passed by the ordinary legislative organs of the state.
3. The rights of the people must flow from the customs and traditions of the people recognized by the courts in the administration of justice
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Varsha Rajora, Comparative Analysis of Rule of Law in UK & India as accessed from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1533265 on 3 rd Sept 2013 at 4:20 p.m.
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3.2 India India has a written constitution; a body of laws, subordinate to the constitution, dealing with various subjects; rules and regulations, executive instructions & Conventions. All these may be broadly termed as law and their operation to subject population is the Rule of Law. The fundamental rights embodied in the Indian constitution in terms virtually identical term to the universal declaration of human rights act as guarantee that all Indian citizens can and will lead their lives in peace as long as they obey the law. These civil liberties take precedence over any other law of the land. They include individual rights common to most liberal democracies, such as equality before the law, freedom of speech and expression, freedom of association and peaceful assembly, freedom of religion, and right to constitutional remedies, such as Habeas Corpus, for the protection of civil rights. These rights are fundamental rights because they are certain basic human rights which every human being has the right to enjoy for a balanced and harmonious growth of his or her personality. These rights are guaranteed in the constitution of India and help in the growth and development of responsible citizens. The constitution provides for safeguards against any violation of these rights. These safeguards can be enforced in a court of law, hence they are justifiable rights. They check the government from making laws that go against fundamental rights. Furthermore, they act as bulwark against various forms of exploitation which take place against women, children and minority communities. On paper, India also has a fairly elaborate and developed system of justice administration. The best and the most liberal strands of Anglo-Saxon jurisprudence have been interwoven into the foundations of our legal system. In India, the concept of Rule of law can be traced to Upanishad. It provides that the law is the king of kings. It is more powerful and rigid than the kings. There is nothing higher than law. By its powers the weak shall prevail over the strong and justice shall triumph. Thus, in monarchy, the concept of law developed to control the exercise of arbitrary powers of the monarchs who claimed divine powers to rule. In democracy, the concept has assumed different dimension and means that the holders of public powers must be able to justify publicly that the exercise of power is legally valid and socially just. 3.2.1 Rule of Law: Reality or Fantasy?: At first sight, it seems that the rule of law and the respect for human rights and human dignity prevail but there exists significant human rights
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abuses, despite the extensive constitutional and statutory safeguards. Many of these abuses are generated by intense social tensions, violent secessionist movements and the authorities attempts to repress them, and deficient police methods and training. Serious human rights abuses include extra-judicial executions and other political killings, torture, and excessive use of force by security forces and separatists militants, as well as kidnapping and extortion by militants, especially in Kashmir and north east India; torture, rape, and deaths of suspects in police custody throughout India; arbitrary arrest and incommunicado detention in Kashmir and in the north-east; Continued detention throughout the country of thousands arrested under special security legislation; long delays in criminal trials; widespread inter-caste and intercommunal violence, both societal and by the police and other agents of government, against women; discrimination and violence against indigenous people; and widespread exploitation of indentured, bonded, and child Labour.
In India, people are confronted with state machinery that has perfected an arrangement of subjugation and domination. The rule of law in India has deteriorated stridently, and this demonstrates how little the general public can trust the law enforcement agencies in the country. The emergence of various sections of society as symbols of ethnic or religious assertion and identity corrodes the pre-eminent position that the rule of law as an essential ingredient of liberal democracy should have in our country. The rule of law goes out of window when politics is not treated as an instrument for public welfare but as an instrument for private gain. Indeed, during the past three decades, the increasing competitiveness in Indian politics has trampled upon the rule of law time and again. This trend has intensified since the 1990s, because most parties, both regional and national, are playing the dual role of ruling and opposition parties in one context or the other. The Indian state and its agencies fail to practice the rule of law and to ensure equality before the law and equal protection of laws to criticize, and to uphold and protect the rights of the citizens because the state power (the opposition included) demonstrated naked aggression and promotes a violent political culture. This is becoming clear when we read credible but true stories of corruption, criminality and self-gain amongst our present politicians.
3.2.2 Indian Judiciary and Rule of Law: With the Constitution first Amendment Act, 1951, the status of Rule of law in India was shocked. The question which came up for consideration in
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Shankari Prasad v. Union of India7 was whether the fundamental rights can be amended under Art 368. The first Amendment Act, 1951 inserted Art 31 A and Art 31 B in the Constitution of India and it was challenges on the ground that it violated or abridges the right conferred under Part III of the Constitution. The Honble Supreme Court held that Parliament has the power to amend Part III of the Constitution under Art 368 as under Art 13 law means any legislative action and not a constitutional amendment. Therefore, a constitutional amendment would be valid if abridges any of the fundamental rights. Again, the question came up for consideration in Sajjan Singh v. State of Rajasthan8 in which the Honble Supreme Court approved the majority judgment in Shankari Prasad case and held that amendment of the Constitution means amendment of all provisions of the Constitution. Honble Chief Justice Gajendragadkar held that if the framers of the constitution intended to exclude fundamental rights from the scope of the amending power they would have made a clear provision in that behalf. Both these cases were overruled by the Honble Supreme Court in Golk Nath v. State of Punjab9 held that Parliament have no power to amend the Part III of the Constitution so as to take away or abridges the fundamental rights and thus, at the end the Rule of law was sub served by the Judiciary from abridging away. But this was not the end. The Rule of law was trampled down with the Constitution 24th Amendment Act, 1971. Parliament by the way of 24th Amendment inserted a new clause (4) in Art 13 which provides that nothing in this Article shall apply to any amendment of this constitution made under Art 368. It substituted the heading of Art 368 from procedure for amendment of Constitution to Power of Parliament to amend Constitution and Procedure thereof. The 24th Amendment not only restored the amending power of the parliament but also extended its scope by adding the words to amend by way of the addition or variation or repeal any provision of this constitution in accordance with the procedure laid down in the Article.
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AIR 1951 SC 455 AIR 1965 SC 845, 1965 SCR (1) 933 9 AIR 1971 SC 1643
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The Constitution 24th Amendment Act, 1971 was challenged in the popular & most controversial case of His Highness Keshavanand Bharti v. State of Kerala10. The Honble Supreme Court by majority overruled the decision given in Glok Naths case and held that parliament has wide powers of amending the constitution and it extends to all the Articles, but the amending power is not unlimited and does not include the power to destroy or abrogate the basic feature or framework of the constitution. There are implied limitations on the power of amendment under Art 368. Within these limits Parliament can amend every Article of the Constitution. Thus, Rule of law prevailed. Justice H R Khanna played a vital role in preserving the Rule of law although he concurred with the majority decision The Honble Supreme Court and the various High Courts through Judicial activism and public interest litigation, other bodies such as the National Human Rights Commission and State Human rights Commissions and various non-governmental organizations have made significant contributions towards protecting freedoms and preventing human rights violations and abuses, thereby ensuring that the Rule of Law and respect for citizens rights do not remain only on paper but are incorporated in practice too. If we want to remain a free nation, we must have the inner spiritual resources a faith, not an ideology which will enable us to transcend ourselves for the national good, and make decisions that cost us comfort, money, friends, and perhaps our very lives. Is typical of what can happen in India when the Western concept of common law, natural law and rules of natural justice is treated as a pernicious outside influence! Let us not pretend that the rule of law is a concept which can be regarded as a part of the Indian psyche. These words of Nani Palkiwala must be eye opener for all of us, whatever problems with which we are suffering today are the result of our own fault, we have to establish our own rule of law with this object we must reconcile existing Rule of Law with ancient rule of law. 11
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AIR 1973 SC 1461 Shivaraj S. Huchhanavar, Rule of Law in India as accessed from http://www.legalservicesindia.com/article/article/rule-of-law-in-india-1403-1.html on 30th August 2013 at 3:00 p.m.
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CHAPTER 4 4. CONCLUSION With the above analysis of the concept in UK as well as in India it can be concluded that the Diceys Concept of Rule of Law is idealist in Nature which is quite impossible to implement in the nation like India. According to Diceys theory justice must be done through known principles of law and not by principles of men. He believes that where there is discretion there is always a room for arbitrariness. Our framers of the constitution while incorporating the parent act tried to involve the concept into the Constitution of India but the intention with which our framers incorporated the concept have gone in vain. The rule of law in the Indian society has not achieved the intended results is that the deeply entrenched values of constitutionalism or abiding by the Constitution of India have not taken roots in the society. Corruptions, Terrorism etc. are all antithesis to Rule of Law. In recent times, common law traditions, the Constitution of India, and the perseverant role of the judiciary have contributed to the development of rule of law. But on occasions we have slipped back into government by will only to return sadder and wiser to the rule of law when hard facts of human nature demonstrated the selfishness and egotism of man and the truth of the dictum that power corrupts and absolute power corrupts absolutely. Today in India, the strange phenomenon and paradox is that while on ideological plain democracy is supposed to strengthen the rule of law and the administration of criminal justice, in actual practice, the electoral process which is an integral part of democracy is undermining the rule of law and due administration of criminal justice. The traditional concept in all civilized liberal nations is that democracy and rule of law are close allies of each other. Despite its inconsistencies, its crudities, its delays and its weaknesses, Rule of Law still embodies so much of the results of that disposition as we can collectively impose. Without it one cannot live; only with it one can insure the future which by right is ours. The best of man's hopes are enmeshed in its process; when it fails they must fail; the measure in which it can reconcile our passions, our wills, our conflicts, is the measure of our opportunity to find ourselves. Man may be a little lower than the angels, he has not yet shaken off the brute and the brute within is apt to break loose on occasions. To curb and control that brute and to prevent the degeneration of society into a state of tooth and claw, what is required is the Rule of Law.
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BIBLIOGRAPHY
ARTICLES REFERRED Agarwal Chhavi, Rule of law- A reflection upon we the people and beyond Huchhanavar Shivaraj S., Rule of Law in India Rajora Varsha, Comparative Analysis of Rule of Law in UK & India
BOOKS REFFERED Khanna H R, Neither Roses nor Thorns Eastern Book Company, Lucknow (1987). Pandey J N, The Constitutional Law of India Central Law Agency, Allahabad (2008). Seervai H M, Constitutional Law of India Tripathi Publishers, Bombay (1993). Stott David & Felix Alexandra, Principles of Administrative Law, Cavendish Publishing Limited, Great Britain, (1997). Takwani CK, Lectures on Administrative law, Eastern book Company, Lucknow, (2008). SITES REFERRED www.legalserviceindia.com www. papers.ssrn.com www.du.ac.in
CASE LAWS REFERRED
Shankari Prasad v. Union of India, AIR 1951 SC 455 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 Glok Nath v. State of Punjab, AIR 1971 SC 1643 Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461
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