Polity & Governance-Rule Of Law

 

The origins of the Rule of Law theory can be traced back to the Ancient Romans during the formation of the first republic; it has since been championed by several medieval thinkers in Europe such as Hobbes, John Locke, and Rousseau through the social contract theory. Indian philosophers such as Chanakya have also espoused the rule of law theory by maintaining the state is governed, not by the ruler or the nominated representatives of the people but by the law. The expression ‘Rule of Law’ has been derived from the French phrase ‘la principle de legalite’, i.e., a government based on the principles of law.

ISS coaching in Lucknow tries to explain the concept by stating that in order to understand the concept of rule of law, it is to be comprehended that the state is governed not by the ruler or the nominated representatives of the people but by the law. The term “ Rule of Law” is nowhere defined in the Indian Constitution but this term is often used by the Indian Judiciary in their judgments. Rule of law has been declared by the Supreme Court as one of the basic features of the Constitution so it cannot be amended even by the constitutional amendment. Rule of law is seen as an integral part of good governance.

To simply understand the meaning of rule of law, means that no man is above law and also that every person is subject to the jurisdiction of ordinary courts of law irrespective of their position and rank.

The term “rule of law” is originated from England and India has taken this concept. The concept of rule of law further requires that no person should be subjected to harsh or arbitrary treatment. The word “law” in rule of law means that whether he is a man or a society, he must not be governed by a man or ruler but by law. In other words, as per Article 13 of the Indian Constitution rule of law means law of land.

 

POSTULATES OF RULE OF LAW

In 1885, Professor A.V.Dicey developed this concept of Coke and propounded three principles or postulates of the rule of law in his classic book “Law and the Constitution”. According to Professor A.V.Dicey, for achieving supremacy of law three principles of postulates must be followed which are as follows:-

● Supremacy of law;

●Equality before law, and

●Predominance of Legal Spirit.

 

Supremacy of Law

As per the first postulate, rule of law refers to the lacking of arbitrariness or wide discretionary power. In order to understand it simply, every man should be governed by law. According to Dicey, English men were ruled by the law and the law alone and also where there is room for arbitrariness and that in a republic no less than under a monarchy discretionary authority on the part of the Government must mean insecurity for legal freedom on the part of its subjects. There must be the absence of wide discretionary powers on the rulers so that they cannot make their own laws but must be governed according to the established laws.

 

Equality before law

According to the second principle of Dicey, equality before the law and equal subjection of all classes to the ordinary law of the land to be administered by the ordinary law courts and this principle emphasizes everyone which included government as well irrespective of their position or rank. But such an element is going through the phase of criticisms and is misguided. As stated by Dicey, there must be equality before the law or equal subjection of all classes to the ordinary law of the land.

Predominance of legal spirit

According to the third principle of Dicey, general principles of the Indian Constitution are the result of the decisions of the Indian judiciary which determine to file rights of private persons in particular cases. According to him, Citizens are being guaranteed certain rights such as the right to personal liberty and freedom from arrest by many constitutions of the states (countries). Only when such rights are properly enforceable in the courts of law, those rights could be made available to the citizens. In the modern age, the concept of rule of law opposes the practice of conferring discretionary powers upon the government and also ensures that every man is bound by the ordinary laws of the land as well as signifies no deprivation of his rights and liberties by administrative action.

 

Rule of law under Indian Constitution

In order to develop Indian democracy, rule of law has played a great role. At the time of framing of the Constitution, the framers had two options, i.e., USA and England. Some of the provisions were adopted from the USA and some of them were adopted from England. Rule of law was adopted from England by our constitutional fathers and many provisions were incorporated in the Indian Constitution. Indian Constitution is considered to be supreme and no one is above the Indian Constitution. Rule of law is also given impliedly in the preamble and such concept is enshrined in Part-III of the Indian Constitution.

In case of violation of such rights, one can approach the Supreme Court or High Court under Articles 32 and 226 of the Indian Constitution. The Constitution of India is enriched with the principles of law,i.e., justice, equality and liberty. Any law made by the Central Government or State government must have complied in accordance with the Constitution of India. If any law made by the legislature contravenes with the provisions of the Constitution then such law will be declared void.

Under Article 32 of the Indian Constitution, the Supreme Court has the power to issue writs in the nature of habeas Corpus, mandamus, prohibition, quo warranto and certiorari. The power of judicial review is also given to Supreme Court in order to prevent any ultra vires law so as to preserve the “ rule of law”.

 

CONCLUSION:

From the above-mentioned discussion, it can be concluded that Supremacy of law is the Aim, Rule of Law is the best tool to achieve the Aim. Some of the efforts are also taken by the court where the Rule of Law is linked with the Human Rights of the people. Strategy is being evolved by the court by which the government can be forced not only to submit to law but also to create conditions where capacities can be developed by the people so as to enjoy their rights in a proper and meaningful manner.

 

In Indian society, the rule of law has not achieved the intended results. A few examples where rule of law was upheld by our judiciary and ensured justice can be clearly seen in the creation of new avenues seeking remedies for human rights violations by the filing of PIL pleas.