“THE be one where in the Grundnorm of

 “THE LAW IS
KING. For as in absolute governments the King is law, so in free countries the
law OUGHT to be King; and there ought to be no other.”

Thomas King, Common Sense

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Rule of Law has always
been championed as one of the building blocks on which the modern society
rests. Derived from the French phrase ‘La Principe de Legality’ , which
translates to the principle of legality, it refers to a government based on
principles of law and not of men. 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. A country that enshrines the rule of law would be one where in
the Grundnorm of the country, or the basic and core law from which all other
law derives its authority is the supreme authority of the state. The monarch or
the representatives of the republic are governed by the laws derived out of the
Grundnorm and their powers are limited by the law1.
The King is not the law but the law is king2.

The basic essence of rule
of law is that nobody is above the law of the land be it the king, the
lawmakers, the judiciary etc. At this juncture it is important to draw a
distinction between rule of law and rule by law.

Rule of law is above the
political tug of war. The idea is that the law should be above every person and
agency whether strong or weak, rich or poor etc. Whereas, Rule by law envisages
an idea whereby the law is used an instrument of political power with a view to
control the citizens but tries never to allow law to be used to control the
state.3

 

 

Historical Evolution of Rule of Law

While AV Diceys
contribution to rule of law, even to this day, remains paramount4,
the doctrine can be traced back to ancient civilizations of Greece, India, the
Roman Empire and China

The Ancient Greeks
initially regarded the rule of men as the best way to govern the empire5.
Plato, who was the founder of the first institute of higher learning in the
Western World6, fostered the idea of
benevolent monarchy where there was Philosopher King who was above the law7.
However, in doing so he still hoped that the best men would respect the
existing laws and norms8.
Aristotle, a student of Plato9,
however was completely opposed to this notion10.
He expounded his opinion as follows

“it is more proper that law should govern than any one
of the citizens: upon the same principle, if it is advantageous to place the
supreme power in some particular persons, they should be appointed to be only
guardians, and the servants of the laws.”11

To put this in plain
words, Aristotle advocated for the rule of law. The Roman empire too advanced
similar arguments in the favour of rule of law. Roman Statesman Cicerio once
said “We are all servants of the laws in
order that we may be free.” 12

Further evidence can be
found in the 7th Century Islamic Jurisprudence whereby no official could claim
to be above the law, not even the caliph13.

John Locke in the second
of his Two Treatises of Government (1689)
emphasized the importance of governance through “established standing Laws,
promulgated and known to the People”. He contrasted this with rule by “extemporary
Arbitrary Decrees”14.
French philosopher Montsquieu in his work Sprit
of the laws has made a substantial contribution to the field of rule of law
in the form of doctrine of separation of powers15 ,particularly
the separation of judicial power from executive and legislative authority. This
has enabled the courts to act as the upholders of the sanctity of the laws.

However, the most
important, prevalent and popular contribution to the field of Rule of Law has
been that of Prof. AV Dicey. After Sir Edward Coke had first propounded the
term in the case of prohibitions16
AV Dicey further elaborated on it in his book ‘The Law of the Constitution’
published in 1885. According to Prof. Dicey, rules of law contains three principles17:-

·      
Supremacy
of Law

·      
Equality
before Law and

·      
Predominance
of Legal Spirit

 

Supremacy of Law: 

This has always been the
basic understanding of rule of law that propounds that the law rules over all
people including the persons administering the law. The law makers need to give
reasons that can be justified under the law while exercising their powers to
make and administer law.

Equality before the Law: 

While the principle of
supremacy of law sets in place cheques and balances over the government on making
and administering law, the principle of equality before the law seeks to ensure
that the law is administered and enforced in a just manner. It is not enough to
have a fair law but the law must be applied in a just manner as well. The law
cannot discriminate between people in matters of sex, religion, race etc. This
concept of the rule of law has been codified in the Indian Constitution under
Article 14 and the Universal Declaration of Human Rights under the preamble and
Article 7.

 

Predominance of legal spirit: 

In including this as a
requirement for the rule of law, Dicey’s belief was that it was insufficient to
simply include the above two principles in the constitution of the country or
in its other laws for the state to be one in which the principles of rule of
law are being followed. There must be an enforcing authority and Dicey believed
that this authority could be found in the courts. The courts are the enforcers
of the rule of law and they must be both impartial and free from all external influences.
Thus the freedom of the judicial becomes an important pillar to the rule of
law.

In modern parlance Rule
of Law has come to be understood as a system which has safe guards against
official arbitrariness, prevents anarchy and allows people to plan the legal
consequences of their actions.

Dicey’s writings about
rule of law are both influential and enduring to the legal committee especially
judges as well as legal practitioner18.

In 1959 around 200
Jurists from across the world gathered in Delhi and discussed extensively about
the fundamental principle of rule of law19.
In what is known as the ‘The Declaration of Delhi’ they declared that the rule of law implies certain
rights and freedoms, that it implies an independent judiciary, and that it
implies social, economic and cultural conditions conducive to human dignity20.

 

Rule of Law in India

 

 

India has adopted the
common law system which basically owes its origins to British Jurisprudence21.
The British Jurisprudence on the other hand is based on the ‘Rule of Law’22.
India has imbibed the rule of law in its constitution from the very beginning.
In the era defining case of Keshavnanda
Bharti v State of Kerela 23the
court held that the Rule of Law is a part of the basic structure of the constitution
and thus is immune from amending powers of the Government.

 Dicey always maintained that there was no need
for written laws to keep a tab on the government and was of the opinion that
natural law and rule of law will be sufficient to prevent arbitrary exercise of
power by the executive. India while conforming to natural law has codified
certain laws to keep tabs on the executive arbitrariness24.

In India the constitution
reigns supreme. Under it, the Rule of Law pervades over the entire field of
administration and every organ of the state is regulated by Rule of Law. Article 13 of the constitution states
that any law which is not in conformity with provisions of the constitution shall
be invalid. This reinforces the position of the constitution as the supreme law
of the country. It is the supreme legal document from which all other laws in
the country derive their power.

Equality before law, an
ideal of which Prof. Dicey was a huge advocate and also proposed as one of the
three principles of rule of law also finds place in the Indian Constitution
under article 14. Further, the preamble of the Indian constitution enshrines
the values of Justice, Liberty and Equality.

Article 21, perhaps the most
prominent example of rule of law, contemplates that no person shall be deprived
of their right to life and personal liberty except for the procedure
established by law.

In its role as the protector
of the law of the land, the Indian Judiciary has been instrumental in
upholding, propagating and advancing Rule of Law. Over the last 70 years the
question regarding Rule of Law in the Indian context have taken centre stage
multiple times. By adopting a positive approach and flexible approach to
interpreting the law, they have ensured that Rule of law is adopted, not only on
paper, but in spirit and practice all over the country.

In the case of Sukhdev v Bhagatram25 the court observed
as follows

“Whatever be the concept of the rule of law, whether
it be the meaning given by Dicey in his “The Law of the Constitution”
or the definition given by Hayek in his “Road to Serfdom” and
“Constitution of liberty” or the exposition set-forth by Harry Jones
in his “The Rule of Law and the Welfare State”, there is, as pointed
out by Mathew, J., in his article on “The Welfare State, Rule of Law and Natural
Justice” in “Democracy, Equality and Freedom,” “substantial
agreement is in juristic thought that the great purpose of the rule of law
notion is the protection of the individual against arbitrary exercise of power,
wherever it is found”. It is indeed unthinkable that in a democracy
governed by the rule of law the executive Government or any of its officers
should possess arbitrary power over the interests of the individual. Every
action of the executive Government must be informed with reason and should be
free from arbitrariness. That is the very essence of the rule of law and its
bare minimal requirement.”

The essence of rule of law
is that there is no existence of arbitrary power and if such exercise does take
place the citizens are free to approach the courts who in their capacity review
administrative action and come down heavily in the case of over reach26.
Anything out of the purview of the law is ultravires27.
A trite principle of common law countries that executive must act under the law
and not by its own fiat is still in force in India thanks to the judiciary28.

The judiciary’s power of
review also stems from the concept of rule of law. Over the years several laws
have been struck down for being violative of the spirit of the Indian
constitution, of which rule of law forms a core component29.
The Judiciary ensures that the executive or the legislature don’t overstep their
marks and thus keeps the system of checks and balances alive30.
However, there exists a fine line before Judicial Review and Judicial Activism
and it is the latter that more often than not amounts to judicial over reach
and infringes the separation of powers between the wings of the government31. In
India there have been several instances of Judicial Over reach. A classic
example of this is the recent case of making it mandatory for Cinema Halls to
play the national anthem. In what was a writ petition concerning the commercial
exploitation of the National Anthem, the CJI observed:

“a time has come, the citizens of the country must
realise that they live in a nation and are duty bound to show respect to the
national anthem, which is a symbol of the constitutional patriotism and
inherent national quality”. The CJI observed that there was no space for the
“perception of individual rights”

The Lodha Committee reforms
for the BCCI32 or constituting a SIT for
the then UPA 2 Govt.33 are
other prominent examples of Judicial Over reach. However there are exceptions
to the rule. Such as the Jessica Lal case34.

Rule of Law has always been
a effective principle to combat exercise of arbitrary power. In the case of
Indira Gandhi Nehru v Raj Narain the Courts struck down Section 329A inserted
into the constitution via the 39th Amendment which provided certain immunities
to the election of office of Prime Minister from judicial review.  The
Judiciary took swift action and struck this down for not being consonant with
the rest of the constitution.

The rule of law vests
deep in the soul of the Indian Constitution. In the landmark case of ADM
Jabalpur35 the Justice Khanna held that
even in the absence of article 21state has got no right to deprive an individual
of his life and liberty for Without such sanctity of life and liberty, the
distinction between a lawless society and one governed by laws would cease to
have any meaning…”

Like every other thing in
this world, Rule of Law is not free from its drawbacks. Diceys theory which has
been the biggest influencer of this principle has been vehemently criticised
for being formal, partly political, more facultative and not substantive36.

In fact, the idea of rule
of law has been found to be followed by the Nazi Regime in Germany or the Apartheid
in South Africa. However, their law didn’t even meet upto the basic standards
of human decency37.

Even in India, the fact that no case can be filed against
the Bureaucrats and Diplomats in India38,
no criminal proceedings whatsoever can be instituted or continued against the
President39,
or the Governor of a state40,
in any court during his term of office, no process for the arrest or
imprisonment of the President, or the Governor of a state, can be issued from
any court during his term of office41
and the privileges enjoyed by the members of parliament with respect to legal
actions are in a way contradictory to the what the principle of Rule of Law contemplates42.

Thus, rule of law is far from perfect. Its implementation can
be lauded and criticized in the same breath. However, in its essence it forms
the backbone of a democracy.

 

 

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