Rule of Law
The Maxim Ubi jus ibi Remedium (where there is a law, there is a remedy) is a maxim of rule of Law.
It embodies the doctrine of Supremacy of Law. It is generally used as an anti-thesis of the term the “ the rule of man”.
The words “ rule are law” are derived from the French words la principe de legalite (the principle of legality) which refers to a government based on the principles of law and of men. Therefore, rule of law means that the law rules using the word “ law” in sense of both “jus” and “ lex”.
Sir Edward Coke, the Chief Justice in King James I’s reign is said to be originator of this principle. It was originated with the object to exclude arbitrary authority of the Government (King) and to protect individuals from the unlawful action of the Government (King). In the battle against the King, he succeeded in maintaining that the King must be under God and the Law.
Later on, this concept of Rule of Law was established by A.V Dicey in 1885. He defined it as “ the absolute supremacy or predominance of regular law as opposed to the influence of the arbitrary power and excludes the existence of arbitrariness, of prerogative , or even the discretionary authority on the part of the government”
So Dicey attributed following meanings to the rule of law:
- Supremacy of Law
- Equality before Law
- Predominance of Legal Spirit
Supremacy Of Law
Whenever there is discretion, there is room for arbitrariness, which may lead to insecurity of legal freedom of citizens. Rule of Law also means that no one should be punished except for the breach of Law. For example: no one should be punished because he objects to the opinion of the Government.
Equality Before Law
It is based on the principle “ However high you may be, Law is above you” and “ All are equal before law”. Law should not discriminate on the basis race, caste, gender, religion etc. It could apply equally to ordinary citizens and to the government officials.
Predominance of Legal Spirit
Dicey stated that rights are the result of judicial decision in particular cases, which have arisen between the parties. Constitution is not the source but the consequence of the right of the individuals. Therefore the Courts of law are the guarantors of liberty and better than the declaration of rights in documents where there chances that the right can be curtailed.
While in some countries executive exercised wide discretionary power, it was not so in Britain.
Criticism of Rule of Law
Dicey propounded individual liberty and criticised administrative discretion. He failed to distinguish between arbitrary discretion claimed by the king and discretion given to the public officials.
He ignored the privileges and immunities enjoyed by the King under the maxim that King can do no wrong and also ignored the statutes which conferred discretionary powers on the Executives and could not be called in court and be questioned.
Administrative law doesnot infringe but promotes Rule of Law. In investigations into Administrative Law in common law countries, the concept of Rule of law has been invoked. The principle implicit in rule OF law is that Executive must act under the law and not by its own decree, is still the principle of common law system. All the powers of Administrative law emanate from law.
Dicey condemned the principle of “DroitAdministratif” prevailing in France where there were separate administrative Tribunals for deciding cases between Government and the citizens. In France , Dicey observed that the government officials exercised wide discretionary powers and if there was any dispute between government official and private individual them it was not tried by an ordinary law but by a special law developed by administrative court. The law applicable in these cases was not the ordinary law but special law.
Dicey considered Frenchman deprived of protection because public authorities in France enjoyed privileges and immunities but Lord Denning has stated that as far as granting privileges and immunities to public authorities, The French Administrative Courts exercise a supervision and control over public authorities which is more complete than courts in England
Jeffrey Jowell has stated “….in the modern state discretion is necessary to carry out a variety of welfare and regulatory tasks. Nevertheless, the Rule of Law contains a number of important values, including legality, certainty, accountability, efficiency, due process and access to justice. These are not only formal values but also substantive. The Rule of Law is not a theory of law but a principle of institutional morality inherent in any constitutional democracy.
Law confers all discretionary powers notwithstanding the possibility of abuse, though it is usual to provide safeguards against abuse. Not those safeguards are always effective, nor it is enough to say that judge is independent and administrative Tribunal is not.
Today it is widely believed that some principles of DroitAdministratif should be incorporated within the common law system to have effective control mechanism, over administration.
Rule of Law in India
The concept of rule of law is invoked often to convey the sense that Administration cannot exercise arbitrary powers and that it should function according to law.
In ancient times Rule of Dharma prevailed in the form of Dharma Shastras or Neeti Shastras. Even the King was under the rule of Dharma and was not exempted from it. Brahdaranyaka Upnashid states that : Law is the King of Kings. Some of the rules based on Dharama Shastras, -Neeti Shastra and Artha Shastra are as follows:
- No decision shall be given by hearing one party rather, they must hear both the parties to a cause
- They must not have any bias or interest in the cause
- The hearing must not be prejudiced against either party for any extraneous reasons
- They must pronounce judgement and give reason for their findings Even during Mughal rule, supremacy of law was recognised Rule of Law was not extended initially but was established after independence when in 1950 the Constitution of India was made supreme law of land. Any law inconsistent with the constitution is null and void. The Rule of Law was placed at a higher footing than ordinary legislation.
Rule of Law permeates the entire fabric of the Constitution and indeed form one of its basic features. The necessary element of rule of law is that law should not be arbitrary or irrational and must satisfy the test of reason.
The New Delhi Congress or Declaration of Delhi was an international gathering of over 185 judges, lawyers, and law professors from 53 countries all over the world, united as the International Commission of Jurists that took place in New Delhi, India in 1959. The theme of the New Delhi Congress was "The Rule of Law in a Free Society".
They emphasised that rule of law has two concepts:
While substantive recognises certain rights of the individual, procedural aspect is concerned with giving practical effect to its substantive effect.
Certain recommendations of the Commission are :
- The legislature and the law
- Legislature should not pass discriminatory laws
- The legislature should not interfere with the freedom og religion, speech , assembly , or association
- The executive and the rule of law
- The executive must provide an effective government capable of maintaining law and order.
- The powers subjected to executive must be subject to proper safeguards of judicial review.
- The criminal process and the rule of Law
- There must be certainty of criminal law
- There must be presumption of innocence of the accused
- There must be a public trial and fair hearing
- The power of arrest must be strictly regulated by law
- The judiciary and the legal profession under the rule of law:
- The judiciary must be independent and free from interference of executive or legislature
- There must be organised legal profession free o manage its own affairs
- The legal aid programs must be devised to provide equal access to law for rich and poor
A significant derivative from Rule of Law in the sphere of Administrative Law is judicial review of administrative action to ensure that administration acts according to Law.
One important aspect of Rule of Law is that every executive action if it operates to the prejudice of any person, must be supported by some legislative authority.
The Supreme Court admitted the petition but did not stay the operation of the Government and just like Karnataka High Court endorsed the initiative as a Government effort to curb the black money. Even on the matter of mitigating people’s hardship the Supreme Court did not allow for any modification of the Government hardship. Instead of subjecting the Government move to the scrutiny of fundamental rights, which is constitution mandate the court assisted the government by transferring all petitions on the issue to itself in order to prevent multiplicity of orders. (Vivek Narayan Sharma v. Union of India , AIR 2017)
Under our constitution, Rule of Law pervades over the entire field of administration and every organ of the State is regulated by the rule of Law. The concept of Rule of Law would lose its vitality if instrumentalities of the state were not charged with the duty of discharging their function in a fair and just manner.(A.KKraipak v. Union of India) The rule of law has banished any unguided and uncanalised or arbitrary discretion even in matters that were recently considered to be within the legitimate sphere of public functionary as a repository of Executive Power (State of Punjab and Ors v. Brijeshwar Singh Chahal and Ors. AIR 2016 SC )
The State Government has to strictly comply with the provisions of the Land Acquisition Act 1894 and not treat to strictly comply with the provisions of the LAND acquisition Act, 1894 and not treat them as empty formality. Any departure from the legislative procedure would be akin to handing over the eminent domain power of the state to the executive, which cannot be permitted in a democratic country that is required to be the government by the Ors. AIR 2016) Rule of Law requires that any abuse of power by public officer must be subjected to the control of Courts. (State of Punjab v. Khamchand)
Principles of Rule of Law and due process are closely linked with human rights protection. Even the criminals must be dealt with the police in an efficient manner so as to bring them to justice by following the rule of Law. In a society governed by Rule of Law it is imperative that extra-judicial killings are properly and independently investigated so that justice might be done. (People’s Union for Civil Liberties v. State of Maharashtra).
Obligation to act fairly on the part of administrative authorities was evolved to ensure Rule of Law and to prevent failure of justice. This is the doctrine which the quasi-judicial bodies are also bound to observe. (Haryana Finance Corporation v. Jagdamba Oil Mills AIR 2002)
Courts ruled that any conduct of public affairs, which demonstrated conflict of interest, was against the principle of Rule of Law. The grant of contract to son while father was the Secretary of the Association was against the principles of above Board and neutral governance (BCCI v. Cricket Association of Bihar 2015 SCC 251)
Kesavananda Bharati vs. the State of Kerala under this case the principle of Basic Structure was propounded and it was said that any part of the Constitution can be amended without disturbing the basic structure of it.
Indira Nehru Gandhi vs. Raj Narain, the court held that rule of law is also part of the basic structure and in the list rule of law was also added and it means that no amendment can be done in rule of law.The State of Bihar vs. Sonawati Kumari, it is an integral part of Rule of law that all the authority within the State including executive government should be bound to obey the rules.
In case of Bachan Singh vs. the State of Punjab, popularly known as “Death Penalty Case” the rule of law is free from arbitrary action if anywhere any action is done with arbitrary power then it will be considered as the denial of the concept of Rule of Law.
In case of Som Raj vs. State of Haryana, that absence of arbitrary power is absolute motive of the principle of rule of law upon which directly the whole Constitution is dependent.
Rule of Law and Indian Constitution
- The Constitution of India provides that the constitution shall be the supreme power in the land and the legislative and the executive derive their authority from the constitution. Any law that is made by the legislative has to be in conformity with the Constitute failing which it will be declared invalid, this is provided for under Article 13 (1).
- Article 21 provides a further check against arbitrary executive action by stating that no person shall be deprived of his life or liberty except in accordance with the procedure established by law.
- Article 14 ensures that all citizens are equal and that no person shall be discriminated on the basis of sex, religion, race or place of birth, finally it ensures that there is separation of power between the three wings of the government and the executive and the legislature have no influence on the judiciary. By these methods, the constitution fulfils all the requirements of Dicey’s theory to be recognized as a country following the Rule of Law
- Further, to make fundamental rights enforceable various powers have been conferred upon the judiciaryFd, under Article 32 , Article 226, and 227.
- Judicial Review of executive and legislative provisions have been guaranteed through several constitutional provisions
The Chief Justice of India in his inaugural address at the International Judges Conference in 2020 said, “[a]t the Heart of Constitution was Individual and Individual Rights were recognized as Fundamental” 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. A few examples of how our judicial system has upheld the rule of law and ensured justice is clearly seen in the creation of new avenues seeking remedies for human rights violations through PIL pleas and promotion of genuine interventions by the judiciary in the areas of bonded and child labour, prostitution, clean and healthy environment etc. but on the darker side there have been violations of fundamental rights as well. For e.g. The discrimination of eunuchs based on their class and gender makes the community one of the most disempowered groups in Indian societ Eunuchs might have an accepted place in Indian society, but it is a place pretty much at the bottom of the social heap making them not just a sexual but also a highly deprived social minority. singur incident a Division Bench of the High Court comprising Honourable Chief Justice S SNijjar and Honourable Justice Pinaki Chandra Ghosh also took suomoto note of the incident.
1.During COVID crisis, flouting of social distancing norms by political leaders and legislators for rallies and marriages is an example.
Lawpreneurz Details of lecture
|Lecture 1||Delegated Legislation|
|Lecture 2||Rule of Law|
|Lecture 3||Theory of Separation of Powers|
|Lecture 4||Principles of Natural Justice|
|Lecture 5||Judicial Review|
|Lecture 6||Commissions Of Enquiry And Central Vigilance Commission|
|Lecture 7||Right To Information|
|Lecture 8||Tribunals And Regulatory Bodies|
|Lecture 9||Delegated Legislation New|
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