Introduction :
The rule of law is regarded as one of the basic principles of the English constitution, it has been derived from the French phrase “la Principe de legalite” meaning the principle of legality, which refers to a government based on principles of law and not of men. It is an eternal value of constitutionalism and an inherent attribute of democracy and good governance.
The concept of Rule of law has to be understood neither as a rule nor a law, it is generally understood as a doctrine of state political morality which concentrates on the rule of law in securing a correct balance between the rights and powers and between the individuals and the state in any free and civil society.
Sir Edward Coke, the Chief Justice in James I’s Reign is said to be the originator of this great principle. Later on Dicey developed this doctrine of Coke in his classical book the ‘law and the constitution published in the year 1885.
The expression rule of law given prominence by Dicey, according to his rule of law is one of the cardinal principles of the English legal system, he gave three meanings to the doctrine:
- Supremacy of law: According to dicey rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power. He also claimed that ” whenever there is discretion there is a room for arbitrariness”.
- Equality before law: Dicey stated that there must be equality before the law or the equal subjection of all classes to the ordinary law of the land administered by ordinary law courts. According to him every man whatever his rank or condition is subject to the ordinary law and jurisdiction of the ordinary courts. No man is above law.
- The judge-made constitution: Most of the general principles of the British constitution are judge-made.,i.e those principles are the result of judicial decisions that determine the rights of private persons in particular cases brought before the courts from time to time.
Modern Concept of Rule of Law :
The Modern Concept of the Rule of law is fairly wide. This concept was developed by the International Commission of Jurists known as the Delhi Declaration in 1959.
This declaration puts in brief 3 ideals of the rule of law:
1. The function of the legislative in a free society under rule of law is to establish and maintain conditions that will uphold the dignity of man as an individual.
2. It depends not only on the provisions of adequate safeguards against abuse of power by the executive but also on the existence of effective government capable of maintaining law and order and of ensuring sufficient economic and social conditions of life for a free society.
3. Independent judiciary and the free legal profession are indispensable requisites of a free society under rule of law.
Professor KC Davis gave seven principal meanings of the term rule of law, they are as follows:
- Law and order
- Fixed rules
- Elimination of discretion
- Due process of law or fairness
- Natural law or observance of the principles of natural justice
- preference for judges and ordinary courts of law to execute authorities and administrative tribunals and
- Judicial review of administrative actions.
Rule of Law and Indian judiciary :
The Indian judiciary has played an instrumental role in shaping the rule of law in India. Some of the cases are mentioned below:
State of Bihar v. Sonawati, the Supreme court emphasized the importance of the rule of law, the court observed “it is the essence of the rule of law that every authority within the state including the executive government should consider itself bound by and obey the law“.
In SG Jaisinghani v. Union of India and others, the supreme court laid down the essentials of the rule of law in a very lucid manner and observed that ” the absence of the arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based“.
In the opinion of some of the judges constituting the majority in Kesavananda Bharathi v. State of Kerala, the rule of law was considered as an aspect of the doctrine of the basic structure of the constitution which even the plenary power of parliament cannot reach to amend.
The significance of the rule of law was explained by Justice Bhagawati in Bacchan Singh v. State of Punjab, “the rule of law permeates the entire fabric of the constitution and indeed forms one of its basic features…. wherever we find arbitrariness or unreasonableness there is a denial of the rule of law”
The rule of law notion as evolved by the Indian judiciary also extended to the protection of social welfare as well, in Veena Seethi v. State of Bihar, the supreme court held that the reach of the rule of law extended to the poor and the downtrodden, the ignorant and illiterate who constitute the large bulk of humanity India. And in People’s Union for Democratic Rights v. Union of India, it was observed that the rule of law does not mean that, the protection of law must be available only to fortunate few… the poor to have civil rights and the rule of law is meant for them also”
In the Supreme court’s advocates on record v. Union of India, the court reiterated that the absence of arbitrariness is one of the essentials of the rule of law. And in NALSA v. Union of India, it was observed that ” the judicial role is not only to decide the dispute between the court but to uphold the rule of law and ensure access to justice to the marginalized section of the society.
Conclusion:
The judicial pronouncements exhibit a dynamic and positive approach to the concept of the rule of law by laying the need for fair play and justice in every walk of administrative action. Judiciary has always come forward to make legal remedies available to all, it takes care of human rights against any administrative encroachment to uphold the dignity of man in society and also ensures safeguards against every kind of arbitrary action of the administration.
REFERENCES :
- https://lexcliq.com/concept-of-rule-of-law-by-grishma-shetty-at-lexcliq/
- http://lc2.du.ac.in/DATA/Presentation%20on%20Rule%20of%20Law_Chintu%20Jain.pdf
- https://rm.coe.int/handbook-freedom-of-expression-eng/1680732814
- https://www.scribd.com/document/487582321/Mp-Jain-Indian-Constitutional-Law/
- https://hmazeem.blogspot.com/2016/07/rule-of-law.html/
- https://blog.ipleaders.in/rule-law-exceptions/
- https://blog.ipleaders.in/declaratory-decree-under-the-special-relief-act-1963/
- https://www.slideshare.net/sunitkapoor1/rule-of-law-47619233
- https://indiankanoon.org/doc/1935079/?type=print
- https://www.legalserviceindia.com/article/l273-Public-Interest-Litigation.html
- https://indiankanoon.org/doc/127517806/
- https://www.lawyersclubindia.com/judiciary/SC-landmark-judgment-recognising-transgenders-as-a-third-gender–3986.asp/
Author: Naveen Talawar,
Student at Karnataka state law university's law school