Authored By: Radhika Verma
UILS Panjab University
ABSTRACT:-
Administrative law is a separate branch of law and a subject for academic study but since last few decades, it has gained full stature as a ‘responsible’ field of study for the law students and practitioners. So, to recognize its independent existence, the people of England used the weapon of Dicey’s Concept of Rule of Law to strike the growth of administrative law. The concept of ‘Rule of Law’ is a building block of our modern democratic society. This term is nowhere defined in the Indian Constitution but has been often used by the Indian Judiciary in their judgments. ‘Rule of Law’ is neither a ‘rule’ nor a ‘law’, rather it is a doctrine of ‘state political morality’ which maintains a ‘correct balance’ between the ‘rights’ and ‘powers’ between the individuals and between the individuals and the state to make it a free and civil society. The main objective of this paper is to give a detailed analysis of ‘Rule of Law’ namely its origin, features, position in U.S Constitution, position in Indian Constitution, basic principles and its exceptions. In the process of making this research paper, several journals, books and articles were referred and taken into consideration. Hence, this paper is a result of Doctrinal Research Methodology.
Keywords– rule, law, state political morality, correct balance, rights, powers
INTRODUCTION:-
In an increasingly polarized and politicized world, people and ideas are divulging into conflict and chaos. Today’s era can be marked with a lack of stability and order. Democracy1 and its ideals are crumbling down, and this, unfortunately, is quite discernable and evident. Amidst this chaotic and largely problematic world, certain ideals of democracy ensure stability and accountability. One such feature of a sound, free and functional democracy is the idea of the “rule of law”. Rule of law2 stands as one of the most significant ideals and a cornerstone to a modern democratic nation.
“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing” – Caroline Kennedy
Administrative law is a separate branch of law and a subject for academic study but since last few decades, it has gained full stature as a “responsible” field of study for the law students and practitioners. So, to recognize its independent existence, the people of England used the weapon of Dicey’s Concept of Rule of Law to strike the growth of administrative law. ‘Rule of Law’ is a new ‘lingua franca’ of global moral thought and the Supreme manifestation of human civilization and culture. Thus, Rule of Law adds eternal value to the Constitution and an inherent attribute for democracy and good governance.
MEANING AND CONCEPT OF RULE OF LAW– AN OVERVIEW:-
The Rule of Law is a fundamental principle in modern democratic societies, ensuring a balance between rights and powers between individuals and the state. It is not a rule or law, but a doctrine of state political morality that balances freedom, justice, equality, and accountability. Originating from the French phrase “la prinicipe de legalite,” it aims to prevent authoritarian rule, arbitrary government authority, and protect individuals and their rights. Edward Coke, a key figure in the concept, emphasized the importance of the King being under God and law, ensuring the rule of law is based on principles of law3.
- Absence of arbitrary power on the part of the government.
- Equal subjection of all men to the law of the land
- Predominance of legal spirit.
The principle of liberty and equality is central to the United States Constitution, common law judgments, and India’s constitutional machinery. Dicey believed individual liberty was crucial and that government arbitrary power would inevitably violate it. He argued that a rule of law protects individual liberty and prevents government interference, ensuring it is protected and preserved.
RULE OF LAW IN U.S CONSTITUTION
America adopted the concept of Rule of Law from medieval England, which was expressed as “A government of laws, not of men”. The federal Constitution of 1787 changed the concept of constitutional government and introduced the “Principle of Constitutional Supremacy”. According to Article VI of the American Constitution, “Constitution should be the supreme law of the land”. It can be observed from the famous case of Marbury v Madison4 that the American Constitution and the power of judicial review are the extensions of rule of law. In this case, the Justice Marshall held that an act of Congress contrary to the Constitution was not regarded as a law. The major essentials of the American Constitution5 are Federalism, Separation of Powers and Rule of Law. They are also referred as the heart of the American Constitution as they contribute to achieve liberty, equality, order and justice. There are mainly three basic principles of the American Constitution.
- The American Constitution requires its government to be politically responsible to both the state and the people who are governed by it.
- The American Constitution believes that the legitimate expectation is the one which originates with people and controlled by the people and the same principle is described in the Preamble which states that the Constitution is established by the people and not by the government.
- Political supremacy and identification of all laws with the legislature are hostile to the American Constitution as it declares it be the supreme law of law.
RULE OF LAW IN MODERN SENSE
In today’s scenario, the 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 that “the functions of the government in a free society should be so exercised in which the dignity of a man as an individual is upheld”. The International Commission of Jurists divided itself into certain working committees, namely, Committee on Individual Liberty and the Rule of Law, Committee on Government and Rule of Law, Committee on Criminal Administration and Rule of Law, and Committee on Judicial Process and Rule of Law.
The Committee on Government and Rule of Law stated that ‘Rule of Law’ not only means adequate safeguards against abuse of power but also effect government which is capable of maintaining law and order. The Committee on Criminal Administration and Rule of Law stated that ‘Rule of Law’ means Due Criminal Process, No arrest without the authority of law, Legal aid, public trial and fair hearing and Presumption of Innocence. Lastly, the Committee on Judicial Process and Rule of Law stated that ‘Rule of Law’ means Independent Judiciary, Independent Legal Profession and standard of Professional ethics
RULE OF LAW IN INDIA: CONTEXT
In India, thinkers and philosophers have often attributed rule of law to be supreme and even above the kings or rulers. Mentions have been made in Upanishads about Law being the Kings of Kings, for example, Chanakya in Arthashastra talks about how the King should be governed by law. The concept of rule of law in India has faced fluctuations.
In pre-independent India, rule of law proved to be disastrous, since the laws were deliberately twisted and were tainted with oppressive provisions made to suit the colonial regime’s exploitative ambitions. White juries almost never convicted Englishmen in the colonies. Raja Nandkumar case (1775), infamously known as the first judicial murder of India, was one of the prime instances where the gross disregard to Rule of Law was noticeable. However, in the post-independence era, the concept of rule of law was strengthened and has seen drastic and admirable change, proving that the foundations of the concept were strong to withstand the test of time and regime change. The first modern development in this array was because of The New Delhi Congress or Declaration of Delhi.
The theme of the New Delhi Congress was “The Rule of Law in a Free Society”. The Congress further developed the principles and procedures underlying the Rule of Law as well as defining and clarifying the concept itself. Pledging itself to foster understanding of and respect for the Rule of Law, the Commission set out to uphold the best traditions and the highest ideals of the administration of justice. It believed that by mobilizing the jurists of the world in support of the Rule of Law.
RULE OF LAW IN INDIA: ANALYSIS
The Despite several provisions in place reflecting or conceptualizing rule of law, the exact words “rule of law” are not found in the Indian Constitution. Amongst the groundbreaking constitutional cases in this regard was the Keshvananda Bharti v. State of Kerala regarded as the most important case of Constitutional jurisprudence in India which outlined the basic structure doctrine of the constitution. The Basic Structure doctrine forms the basis of power of the Indian judiciary to review and strike down amendments to the Constitution of India enacted by the Indian parliament which are in confliction with or seek to alter the basic structure of the Constitution as was declared by the 7-6 majority judgement of the aforementioned case. The opinion of majority of the judges in this respect was that rule of law is an “aspect of the doctrine of the basic structure of the Constitution, which even plenary powers of the parliament cannot reach to amend.” It further solidified preceding judgements, such as that of IC Golak Nath6 and Sajjan Singh7. In A.K. Kraipak v. Union of India8 it was held that under our constitution, the rule of law pervades over the entire field of administration and organs of the state.
In the case of Indira Nehru Gandhi v. Raj Narain, it was held by the honorable Supreme Court that clause (4) of the Constitution 39th Amendment Act, 1975 was unconstitutional and void on the ground that it was outright denial of the Right to Equality enshrined in Article 14. It was held by the Court that these provisions were arbitrary and hence declared void, thereby reinstating the first of the three principles propounded by AV Dicey. Furthermore, it was held that Article 329-A offended the rule of law by subduing the principle of predominance of legal spirit, exuberating the sense of arbitrary official action. There was a misuse of Article 356 weakening the basic federal structure of the country. In 1970s judiciary did not remain independent and uncontaminated body from political intervention, when Justice A.N. Ray was appointed as the Chief Justice of India, discarding the other three senior most judges. Even then, the spirit of rule of law was upheld by the judiciary thereby indicating the immense power that a concept such as rule of law holds, thereby vanquishing tyrannical government measures. In the infamous case of ADM Jabalpur v. Shivakant Shukla one of the fundamental questions in front of the Supreme Court was the determination of whether the predominance of legal spirit holds good in the Indian context and whether there was any rule of law in India except but for the presence of Article 21. This was famously answered by the dissenting opinion of Justice HR Khanna. Discussing the sanctity of the Rule of Law, he says, Rule of Law is the mark of all civilized societies, he argues that the harmonizing of human rights with the requirements of public interest can only be attained by the existence of independent courts which can hold the balance between citizen and state and compel government to conform to the law. Stating that the right to life and liberty , Justice Khanna claimed that “the idea about the sanctity of life and liberty as well as the principle that no one represented a fact of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilized existence shall be deprived of his life and liberty without the authority of law are essentially two facets of the same concept”. Emphatically arguing that the right to life and liberty is not a gift of the Constitution, the following famous paragraph from Justice Khanna’s judgment is produced here:
“Even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. This is the essential postulate and basic assumption of the rule of law and of men in all civilized nations. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning. The principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life, and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has the effect of tampering with life and liberty must receive sustenance from and sanction of the laws of the land”.
Justice Khanna stated in his judgment, “As observed by Friedman on page 500 of Law in Changing Society, 2nd Ed., in a purely formal sense, any system of norm based on a hierarchy of orders, even the organized mass murders of Nazi regime qualify as law. This argument cannot, however, disguise the reality of the matter that hundreds of innocent lives have been taken because of the absence of rule of law. A state of negation of rule of law would not cease to be such a state because of the fact that such a state of negation of rule of law has been brought about by a statute. Absence of rule of law would nevertheless be absence of rule of law even though it is brought about by a law to repeal all laws9”.
This dissent by Justice HR Khanna proved to be of utmost importance, since it kindled a spark that would give rise to subsequent judgements which would dilute the effect that the ADM Jabalpur case had. It also set a marvelous precedent for later generation of lawyers and judges, since it proved the importance of a dissenting judgement on a constitutional bench, which in turn proves and strengthens the predominance of legal spirit argument laid down by Dicey. Subsequent to this, in the case of Chief Settlement Commr. Punjab v. Om Prakash10 it was held by the Supreme Court that, „In our constitutional system, the central and most characteristic feature is the concept of rule of law‟, thereby strengthening and reinstating the precedents on the same subject and ensuring that executive and administrative action face scrutiny of the law.
CONCLUSION
It can therefore be concluded with sufficient evidence and authority that the principles of rule of law have been enshrined in the Indian Constitution. Although the landmark judgement in this regard refutes the aforementioned statement, several succeeding judgements have upheld the sanctity of rule of law in the Indian Constitution. One can therefore say with sheer factual accuracy that India is benefitted with the presence of rule of law in her Constitution. Yet, this statement will be made with an immensely burdening sense of irony. Many scholars would argue that the statement is paradoxical, since in practicality, on several instances, rule of law is blurred, if not completely absent. To pick one instance, in the Shreya Singhal v Union of India11 case, the Supreme Court had declared Section 66-A of the Information Technology Act to be void and unconstitutional. Despite this judgement, police officials constantly made arrests using the same section, therefore violating the principles of rule of law. Recently, the Supreme Court allowed women entry into the Sabarimala temple.
thereby sparking a series of controversial incidents, with violent protests and refusal of women entry into the temple post the delivery of the judgement. This is a clear indication of a gross disrespect to the rule of law in India. The villages of India, considered the grassroots and the heart of this nation, reflect the sad and dismal state of rule of law in India. The remotest of those, embedded with beauty and serenity, disguise a deep dark truth within. The presence of Panchayats and honor killings, one of the worst forms of extra judicial sentencing, reflects the dire need for a stronger mechanism of rule of law. The Supreme Court has delivered several judgements to this regard, and the presence of explicit laws forbidding extra judicial killings are entirely futile, and the best example to support this claim is the Manoj-Bablihonour killing case.12 Another infamous example of the disregard to rule of law would be the provisions of the Armed Forces Special Provisions Act, 1958 and its consequences. Section 3 of the said Act in particular has been extremely problematic, and its interpretation has faced widespread scrutiny. It has given arbitrary powers to the Executive to declare which land or region is a „disturbed area‟ and therefore has led to mass politicization and tyrannical intervention into several regions for unwarranted reasons. It is also alleged that several armed forces use these arbitrary powers to exploit people of the said regions. Going by the allegations and the provisions, this is a clear violation of the principles of rule of law, particularly those enshrined in our Constitution. Several outdated laws often prove to be contrary to the effect of rule of law, particularly those governing the executive, such as the police. The series of problems in connection to rule of law in India can be a very long, exhaustive list. Our Constitution and various judicial precedents leading up to the most recent ones have clearly set the tone for the applicability of Rule of Law in India. Despite all of its hindrances, in hindsight, the practical effectuality of Rule of Law has made some significant progress in India over the years. Our forefathers envisioned a Constitutional India, where every citizen is treated with equality before the law and his or her liberty is not infringed upon. They envisioned an India that is free, open and democratic, rid of arbitrary power and ineffectual existence of Rule of law. The Constitution and its makers‟ vision will stay intact and face the test of time. It is now upon the generations to come that the vision converts into a reality. In conclusion, to reflect upon the significance of rule of law, BR Ambedkar once said “Law and order are the medicine of the body politic and when the body politic gets sick, medicine must be administered.”
Reference(S):
1 https://www.legalserviceindia.com/legal/ article-13304-a-comprehensive-guide-to-the-rule-of-law- in-the-indian-constitution-key- principles-and-significance.html
2 https://www.ijcrt.org/papers/IJCRT2010155.pdf
3 https://www.ijlsi.com/wp-content/uploads/Rule-of-Law-in-India.pdf
4 5 US (1 Cranch) 137 (1803)
5 https://byjus.com/free-ias-prep/rule-of-law-upsc-notes/
6 IC Golak Nath & Ors. v. State of Punjab (1967) SCR (2) 762
7 Sajjan Singh v. State of Rajasthan, (1965) SCR(1) 933
8 A.K. Kraipak v. Union of India, A.I.R. 1970 SC 150
9 S.P. Sathe, “Judicial Activism: The Indian Experience”, http://law.wustl.edu/journal/6/p_29_sathe.pdf
10 Chief settlement Commr. Punjab v. Om Prakash, (1968) SCR (3) 655
11 Shreya Singhal v Union of India, 2015 A.I.R. SC 1523
12 Smt. Chandrapati v. State Of Haryana and Others, A.I.R. 2011
