The concept of Rule of law is of old origin because thinkers
like as Plato and Aristotle discussed this concept. It is the entire basis for
the administrative law. It simply means that no man is above law (supremacy of
law), and everybody shall be treated equally before the law (equality u/a 14 of
Indian constitution). It abolishes the arbitrariness in the government. All the
act shall be in accordance with the law and not according to soverign’s whim. Discretionary
powers must be used in reasonable limits.
Thinkers
Aristotle formulated the question that whether it
would be better to be ruled by the best man or the best law. To which he put
emphasis on the type of regime in which the people are ruled. He also said the law
has certain advantages form a mode of governance, that the law will be applied
in advance to the particular case and remove the irregularities. He also
believed that all the situations cannot be held by the general rules, some
require the insight of particular judges. He used the term ‘epieikeia’ which
means sometimes translated as equity. For this, the legal training and legal
institutions should continue to play a role in the disposal of such cases. Law
should be the final sovereign of the state.
Hobbes said that people create a sovereign with a
contract and a sovereign is bound by natural law. Sovereign would be above law
and people. People give lives and property in return of protection. Law has to
implemented by someone and that someone is sovereign. He would be seen as a theorist of rule by
law. He believed that law should be publicly announced, so that every man may
know. But he was even agreed that it would undermine the very logic of the
sovereign. As he himself is bound by laws. It meant that the state uses the law
to control its citizens tries not to allow the law to control the state.
John Locke in the second of his ‘Two Treatises of
Government’ gave the concept of the importance of governance through
established laws, promulgated and known to the people. He said that the supreme
power cannot take away the from any man any part of his property without his
own consent. According to him, something is arbitrary because it is
extemporary, there is no notice of it, the ruler just figures it out as he goes
along. And arbitrariness is oppressive for the people. The people wanted to get away from the state
of nature of other incalculable opinions. Nobody could predict the other
interest and hence the idea of positive law was introduced to anticipate some
predictability into this picture.
Montesquieu in his book ‘Spirit of law’ has said that
in a free democracy there have to be three main organs of the government, i.e.
legislature, judiciary, and executive. And these organs should have separation
of power in order to maintain proper check and balance. This will decrease the
arbitrariness of the government. In India, article 50 of the constitution
guarantees the separation of power. All these institutions shall be governed by
the same law i.e. rule of law.
AV Dicey develops rule of law in his book ‘The law of
the Constitution’, in which he says that the no man is punishable except for a
distinct breach of law established in an ordinary legal manner before
courts. No man is above law,
irrespective of his rank or condition he is subject to the ordinary law and
jurisdiction of the ordinary law. No person shall be deprived of his property
except for a breach of law establishes in an ordinary legal manner. The
constitution is the result of the ordinary law of the land, it means that the
source of the right of an individual is not any written constitution, but the
rules defined and enforced by courts. Written law will create problems and
hence law should evolve with the decision of the judiciary. The parliamentary
privileges or the concept of reservation were not supported by him because
everyone should be treated equally. One
of the critiques to his theory is that he failed to distinguish between
discretionary and arbitrary powers. Discretionary powers are a must when it
comes to the application of the law by the governmental agencies.
Rule of law in
India
ADM Jabalpur case[1],
where the article 14, 21 and 22 of the constitution were held to be suspended
during an emergency. In this case, during emergency under the Maintenance of
Internal Security Act, many people were detained. And no one was informed about
the reason for their detention. There is a difference between the two are,
‘arrest‘ means that when a person commits a crime he is produced before
magistrate whereas in ‘preventive detention’ person is detained simply in order
to restrict him from doing something u/s 151 of the CrPC. The court made the literal
interpretation of the law and said that as per under article 352 ‘proclamation
of emergency’ automatically all the fundamental rights cease to exist. The
court held that there is no specific provision for rule of law in India. it is
only Article 21 and because during emergency u/a 352 suspends article 21, hence
rule of law is also suspended and therefore the detention is valid.
In another case of Indira Gandhi v Raj Narain[2],
the allegation was raised that Indira Gandhi has used money and muscle power to
win the election from the Raebareli constituency. Under 39th
constitutional amendment, the parliament kept the election of Prime Minister
out of the preview of judicial review. The court held that the in India rule of
law is followed in a broad sense, unlike the US constitution and hence
deviation is possible. We do not follow separation of power strictly as the impeachment
of a judge take place in parliament and the review of any act is done by the
judiciary.
In Kesavananda Bharti[3]
case the supreme court held that rule of law is the part of the basic structure
of the Indian Constitution. Though I personally feel that it is a somewhat
vague concept because under the doctrine of basic structure the legislature
does not have the power to amend the basic structure of the constitution. And
if everything written in Indian Constitution come under rule of law, then
nothing in the constitution could be amendable. The court although did not
define what all forms the basic structure and hence it left at the discretion
of the court to decide depending upon the circumstances and need of the
society.
Maneka Gandi v UoI[4],
where the Maneka Gandhi’s passport was impounded under the Indian passport Act
1967 ‘In public interest’ and the authority did not furnish her the statement
of the reason for making of the order. The court held section 10(3)(c) of the
act violative of article 14 of the Constitution. The court declared that
article 14 strike against arbitrariness. The court held that for a person to be
deprived of his personal liberty and life there must be a valid law, which must
provide the procedure. The procedure must be just and fair and the law must
satisfy the requirements of article 14 and 19.
In the judgement of Gadakh Yashwantrao Kankarrao v
Balasaheb Vikhe Patil[5],
the Supreme Court held that the rule of law is the essence of the democracy, of
which purity of election is a necessary concomitant. For the democracy to
survive rule of law must prevail and for that, it is necessary that the best
man is chosen as a representative for the government. In this case, the court
set aside the election of G.Y. Kankarro as an MP from Ahmednagar constituency
for the commission of the corrupt practises u/s 123(4) of the Representation of
the People’s Act.
In another judgement of Secretary, State of Karnataka and
Ors v Uma Devi[6]
the regularisation rules were challenged of the National Rural Employment
Guarantee Act, in which the employees were given on the basis of patronage by
the officials and many irregularities were there in the appointment. Supreme
Court held that rule of law is the core of the Constitution. Rule of equality
in public employment is a basic feature of our Constitution.
Supreme Court in the Supreme Court Advocated on Record
Association v Union of India[7]
held that for the rule of law to be realistic there has to be some room for the
discretionary power as well with the authorities. Though it shall be reduced to
the extent necessary for proper governance, proper guidelines or norms of
general application excludes any arbitrariness exercise of discretionary
authority.
In the case of S.G Jaisinghani v Union of India and Ors,[8]
the Supreme Court held that the ‘absence of arbitrary power is the essential
part of rule of law’. The discretion when constituted upon the executive
authorities, it shall be well within the clearly defined limits. The decision
if taken without any principle and the rule is unpredictable, then such
decision will anthesis of the decision taken in accordance with the rule of
law.
Criticism
The Criticism of the concept of rule of law is that if too
much importance will be given to the law and the legal proceedings then it may
act disadvantageous. As it will then have an overreaching source of security.
It is a complex idea which even becomes more complex when practically applied
in any state of affair. The rule of law fails to deal with the supremacy of the
parliament, the statue can annul inconvenient court decision. Too much
independence of the judiciary as given by rule of law can also backfire as they
may misuse their powers. It would neglect the real-world dimensions and
practicality to run a modern world. As with the passage of time, the needs of
the society keeps changing and the law should also evolve according to it.
Therefore, the concept of living constitution comes in as it provides the
courts and legislature and executive to run the state with certain required
discretionary powers.
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