In this article Raghav Ajmera, a student from D.E.S’s Shri Navalmal Firodia Law College, Pune discusses on Origin and concept of rule of law.
Introduction to law
Have you ever wondered how the concept of law originated?
Every society from historic time to modern time is based on the concept of rule of law. Law is the basic attribute for the functioning of any society. Laws are made for the general public to create harmony in the society and protect them from the conflicts in the society. One of the main objectives of law in society is to maintain law and order and develop peaceful relations among the citizens. Law has improved the relationships of one country with another.
Meaning of Rule of law
The term “Rule of Law” is derived or taken from the French phrase ‘La Principe de Legality’ which states that the government is based on the principle of law and not of men. In a more extensive sense rule of law implies that,
- Law is supreme and above every individual. No individual he is rich, poor, rulers or ruled and so forth are above law and they ought to obey it. In a narrow sense, it implies that government authorities may only be exercised as per the composed laws, which were taken or adopted through an established procedure. The rule of Rule of Law is proposed to be a shield against arbitrary activities of the administration
- The rule of law has been described as a “rare and protean principle of our political tradition”.
- The term Rule of Law does not give anything about how the laws are to be made, or anything particular like the Fundamental Rights or the Directive standards or equity and so on however it accommodates two essential ideas that is Law must be obeyed by the general population and that the law must be made such that it can control the conduct of its subjects. Different lawful scholars have different methodologies towards the idea of Rule of Law.
Rule of law – Origin and concept
The origin of rule of law is very old. This concept was originated by Sir Edward Coke, the chief justice of King James I’s reign. He kept up that the King ought to be under God and the Law and he built up the supremacy of the law against the executive and that there is nothing higher than law.
Afterwards, Albert Venn Dicey (a British jurist and constitutional theorist) built up the idea in his book ‘The Law of the Constitution’ (1885). His written work on the British Constitution (which is unwritten) included three distinct though kindred ideas on Rule of law :
- Absence of discretionary powers and supremacy of Law: It states that no man is above law. No man can be punished except for a distinct breach of law established in an ordinary legal manner before ordinary courts. The government cannot punish any one merely by its own fiat. Persons in authority do not enjoy wide, arbitrary or discretionary powers. Dicey asserted that wherever there is discretion there is room for arbitrariness.
- Equality before law: Every man regardless of his position or rank is subject to the ordinary law and jurisdiction of the ordinary courts. No individual ought to be made to suffer in body or denied of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of the land.
- Prevalence of legal spirit: The liberties and the rights of the general population must originate from customers and traditions of the general population and be recognised by the courts in the administration of justice from time to time.
The expression ‘rule of law’ over the years have been used in enormous forms to convey a wide variety of ideas and meanings.
Rule of law under Indian constitution
In India, the idea of rule of law can be followed back to the Upanishads. In modern times also, the idea of the constitution is based upon the concept of law. The framers of the Indian constitution were very familiar to the rules of law explained by Dicey. It was in this way, in the wellness of things that the establishing fathers of the Constitution gave due acknowledgement to the idea of rule of law.
- The doctrine of rule of law as defined by Dicey has been clearly explained and incorporated in the Indian constitution. The pillars of the Indian constitution that are justice, liberty, and equality are placed in the preamble itself.
- The constitution has been regarded as the supreme law of the country. Any kind of law which is found in violation of any kind of provisions of the Indian constitution, in particular, the fundamental rights, is declared void. The principle of equality before law and equal protection of laws are incorporated under the Indian constitution as mentioned by Dicey under Article 14.
- Humans right to life and personal liberty are the basic rights mentioned in the Indian constitution under article 21 and article 19 guarantees the third principle of rule of law.
- The Constitution likewise guarantees an autonomous and unbiased Judiciary to settle question and grievances for infringement of major rights by the righteousness of Articles 32 and In Union of India v. President, Madras Bar Association, the Supreme Court held that “Rule of Law has several facets, one of which is that disputes of citizens will be decided by Judges who are independent and impartial; and that disputes as to legality of acts of the Government will be decided by Judges who are independent of the Executive.”
Justice R.S. Pathak of the Hon’ble Supreme Court has observed that our whole constitutional system is based on the concept of rule of law.
Rule of law- Part of the basic structure
Over the years, the Courts have used judicial activism to expand the concept of rule of law. The Constitution (First Amendment) Act, 1951, shocked the status of Rule of law in India. The enquiry which came up for thought in Shankari Prasad v. Union of India was whether the fundamental rights can be amended under Article 368.
The Supreme Court held that Parliament has the ability to amend Part III of the Constitution under Article 368 as under Article 13 ‘law’ implies any legislative action and not a constitutional amendment. In this manner, a constitutional amendment would be substantial if condenses any of the fundamental rights.
The enquiry again came up for thought in Sajjan Singh v. Province of Rajasthan in which the Supreme Court endorsed the greater part judgment in Shankari Prasad case and held that the amendment of the Constitution implies amendment of provisions of the Constitution. Hon’ble Chief Justice Gajendragadkar held that if the composers of the constitution proposed to bar fundamental rights from the extent of the changing force they would have made a reasonable arrangement for that sake.
In Kesavananda Bharati v. Province of Kerala, the Supreme Court expresses that “Our Constitution proposes Rule of Law in the sense of supremacy of the Constitution and the laws instead of assertion.” The 13 judge Bench likewise set out that the Rule of law is a “part of the essential structure of the Constitution, which even the power of Parliament can’t reach to revise.”
Since Kesavananda case, Rule of law has been greatly extended and connected diversely in various cases. In Indira Nehru Gandhi v. Raj Narain, the Supreme Court nullified Clause (4) of Article 329-A inserted by the Constitution (Thirty-ninth Amendment) Act, 1975 to immunise the election dispute to the office of the Prime Minister from any kind of judicial review. The Court said this damaged the idea of Rule of law which can’t be repealed or crushed even by the Parliament.
The dominant part judges held that the Constitution is the order and the run of law. They held that there can’t be any control of law other than the sacred lead of law.
Barring moral inner voice, they held that there can’t be any pre-Constitution or post-Constitution administer of law which can run counter to the government of law typified in the Constitution, nor can there be any rule of law to nullify the constitutional provisions during the time of Emergency.
The majority judges held that “Article 21 is our rule of law regarding life and liberty. No other rule of law can have a separate existence as a distinct right. The rule of law is not merely a catchword or incantation. It is not a law of nature consistent and invariable at all times and in all circumstances. There cannot be a brooding and omnipotent rule of law drowning in its effervescence the emergency provisions of the Constitution.’’ Thus they held that Article 21 is the sole repository of the right to life and liberty and during an emergency, the emergency provisions themselves constitute the rule of law.
The rule of law is a complicated theory, there is no precise definition of rule of law. Its significance can change between various countries and legal traditions. For the most part, be that as it may, it can be comprehended as a legitimate political administration under which the law limits the legislature by advancing certain freedoms and making request and consistency with respect to how a nation capacities. In the most fundamental sense, the rule of law is a framework that endeavours to secure the right of citizens from the arbitrary and abusive use of government power.