“Where the law is subject to some otherauthority and has none of its own, the collapse of the state, in my view, isnot far off; but if law is the master of the government and the government isits slave, then the situation is full of promise and men enjoy all theblessings that the gods shower on a state”.
– PlatoTherule of law is antiquated perfect. It was talked about by the rationalist, forexample, Aristotle or Plato in 350 BC. Aristotle composed that law ought torepresent and those in powers are hirelings of law. It is gotten from theFrench guideline ‘la principe delegalite’ (the standard of lawfulness). It implies that the administrationis administered by standards of law and not of men. This control makes law theincomparable.
The regulation of Rule of Law is one of the essential standardsof English constitution. It is very much acknowledged in U.S and also IndianConstitution. Administer of law is the premise of authoritative law. Theprecept of rule of law was started by SirEdward Coke.
Later it was produced by A.VDicey and included three particular columns: (I)Supremacy of Law Itimplies that individuals ought to oversee as indicated by the law. Their energyor obligations can’t surpass the limits of lawful system.
Anything they oughtto be legitimizes in law. In India our constitution was preeminent and anythingwhich damages its fundamental guideline is void. (II)Equality under the watchful eye of Law It’svital that law ought to be preeminent as well as that it ought to be simply andreasonable. The law ought not to oppress race, sex, age or home. It isimperative that law ought to be connected in just way. In our constitution thisidea is systematized in Article 14. (III)Predominance of Legal Spirit Inincluding this as a necessity for the rule of law, Dicey’s conviction was thatit was inadequate to just incorporate the over two standards in theconstitution of the nation or in its different laws for the state to be one inwhich the standards of control of law are being taken after.
There must be anupholding expert and Dicey trusted that this specialist could be found in thecourts. The courts are the authorities of the run of law and they should beboth fair and free from every outer impact. In this manner the flexibility ofthe legal turns into an essential column to the rule of law. Inpresent day speech Rule of Law has come to be comprehended as a framework whichhas safe watchmen against official discretion, averts political agitation andenables individuals to design the legitimate results of their activities. TheoreticalAspect of Rule of LawIndiaembraced custom-based law framework with some change. In England, there is nocomposed constitution or any type of composed managerial law. Uncertain trustedthat regular law and rule of law is sufficient to evacuate official assertion.
Be that as it may, we embraced this framework and have formal composedconstitutions in which the rule of law is arranged to guarantee consistence. InIndia constitution is preeminent. The officials and legislatives get theirpower from the constitution. Any law which isn’t in similarity with theconstitution is void.
This is expressed in Article 13. Article 14 guaranteesfairness under the watchful eye of law. No one ought to be separated based onstation, sex, religion and so forth. Our constitution incorporates division ofenergy between three wings i.e. administrative, official and legal. Theadministrative and official can’t impact legal.
This guarantees free legalwhich is one of the mainstays of Dicey’s run of law. In Union of India v. President, Madras Bar Association1,the Supreme Court held that “Rule of Law has a few features, one of whichis that question of natives will be chosen by Judges who are free andunprejudiced; and that debate as to legitimateness of demonstrations of theGovernment will be chosen by Judges who are autonomous of the Executive.”Article 21 ensures Right to life and freedom. It checks the subjective energyof official and ensures that freedom of a man isn’t diminished aside from inunderstanding of law.Theconstitution 1st amendment shocked the status of Rule of Law. In Shankari Prasad vs Union of India2,the question came whether fundamental right can be amended under article 368.The Supreme Court held that the parliament can amend fundamental right.
Theword ‘law’ under article 13 included legislative action not the constitutionalamendment. Thus, constitutional amendment is valid even if it abridges with thefundamental right. In Sajjan Singh vState of Rajasthan3,the Supreme Court again held the majority judgment given in earlier case4and concluded that amendment of constitution means amendment of all provisionsof the constitution.However,these two judgements were overruled in Golaknathvs State of Punjab5,where it was held that parliament cannot amend Part III of the constitution.So, at the end Rule of Law was applied. In the case of Keshavananda Bharti v. State of Kerala6 theSupreme Court by majority overruled the decision given in Golaknath’s case andheld that Parliament has wide powers of amending the Constitution and itextends to all the Articles, but the amending power is not unlimited and doesnot include the power to destroy the basic feature or framework of theConstitution. There are implied limitations on the power of amendment underArticle 368.
Within these limits Parliament can amend every Article of theConstitution. Thus, Rule of law prevailed.Invarious other judgements the court reinforced the doctrine of rule of law. In ADM Jabalpur vs Shivkanth Shukla7,the question came before the court that whether there was any other rule of lawexcept article 21. This was during the emergency when article 14, 19 and 22were suspended. The answer of the majority of the bench was in negative for thequestion of law. However Justice H.R.
Khanna dissented from the majorityopinion and observed that: “Indeed, even without Article 21 in theConstitution, the state has no energy to deny a man of his life and freedomwithout the specialist of law. Without such holiness of life and freedom, therefinement between an untamed society and one represented by laws would stop tohave any significance… Rule of Law is presently the acknowledged standard ofevery single edified society”. PracticalApplication of Rule of Law in IndiaTheapplication of Rule of Law in India can be traced in the constitution veryclearly. There is separation of powerbetween legislature, executive and judiciary. The law is made by the parliamentwho in turn is the representatives of people. The law making process istransparent and no one is above law. The judiciaryis impartial and independent from other organs of government.Thepart III of our constitution incorporates key rights which can’t be taken byanyone regardless.
In ADM Jabalpur v.Shivkanth Shukla8,which tested the authoritative request amid crisis, there was an inquirywhether there is govern of law with the exception of in Article 21. This wasbeing referred to as requirement of Article 14, 21 and 22 were suspended amidthe decree of crisis.
The appropriate response was then in adverse in any case,Justice H.R Khanna influenced disagreeingsentiment and said “To even without Article 21 in the Constitution, thestate has no energy to deny a man of his life and freedom without thespecialist of law. Without such holiness of life and freedom, the refinementbetween a rebellious society and one represented by laws would stop to have anysignificance… “Anothercritical part of Rule of Law is that there can be no activity of subjectivepower by government. The administration needs to act inside the structure ofprinciples and direction which limits the abuse of power.
In Som Raj v. Province of Haryana9,Supreme Court said that absence of discretionary power is one of the signs ofRule of Law. In any case, beyond any doubt finish imbalance and mediation can’tbe killed. In a similar vein the reality of the matter is that the idea of leadof law is produced and predominant in the vast majority of the custom-based lawnations, for example, India itself. In my view, the control of law is a kind ofa trial of authoritative request at a given time. Article 14 says that noindividual should be denied of his life or individual freedoms aside from asper technique set up by law. The administration authorities and theadministration itself are not exempt from the laws that apply to everyone else.In India the idea is that there is uniformity under the watchful eye of the lawand equivalent assurance of laws.
Any lawful wrong dedicated by any individualwould be rebuffed in a comparative way. The law settled in the standardofficial courtrooms applies to every one of the general population with measureup to compel. Openly benefit likewise the precept of equity is acknowledged.
The suits for break of agreement against the state government authorities, openworkers can be recorded in the standard official courtrooms by the generalpopulation.InChief settlement Comm Punjab v. OmPrakash10,it was observed by the Supreme court that, “Inour constitutional system, the central and most characteristic feature is theconcept of rule of law which means, in the present context, the authority oflaw courts to test all administrative action by the standard of legality. Theadministrative or executive action that does not meet the standard will be setaside if the aggrieved person brings the matter into notice.”Indiahas modernised the concept of rule of law and made it supreme. There arenumerous cases where the court has declared the doctrine of Rule of Law as abasic structure.
In Keshavananda Bhartiv. State of Kerala11,Supreme Court has said that the parliament does not have unlimited power toamend the constitution and anything which violates the basic structure is ultra-virus.Again in Maneka Gandhi v. Union of India12,the court said that equality before law is very important and is a part ofbasic structure of our constitution. It acts as a deterrent against arbitrarypower of government or its officials.
Thus, the case saw a high degree ofjudicial activism, and lead into a new era of growing horizons of fundamental rightsand Article 21 in particular.Indira Gandhi v. Raj Narain13,the case that shaped the Indian politics showcases the same principle.
Here under39th amendment, a law was passed which provided immunities tocertain class of person from judicial review (Article 329-A). The Supreme Courtinvalidated the article 329-A on the ground that it was violating the basic structureof constitution and it was beyond the power of parliament to amend in suchcases.Inthe case of Sukhdev v. Bhagatram14Mathew J. declared that whatever be the idea of the administer of law,regardless of whether it be the importance given by Dicey in his “The Lawof the Constitution” or the definition given by Hayek in his “Streetto Serfdom” and “Constitution of freedom” or the composition putforward by Harry Jones in his “The Rule of Law and the WelfareState”, there is, as pointed out by Mathew, J.
, in his article on”The Welfare State, Rule of Law and Natural Justice” in “Populargovernment, Equality and Freedom,” “significant understanding is injuristic suspected that the immense motivation behind the control of lawthought is the security of the person against discretionary exercise of energy,wherever it is found”. It is in reality incomprehensible that in a votebased system administered by the rule of law the official Government or any ofits officers ought to have self-assertive control over the interests of theperson. Each activity of the official Government must be educated with reasonand ought to be free from assertion. That is the very substance of the rule oflaw and its exposed negligible prerequisite. Also, to the use of this standardit has no effect whether the activity of the power includes fondness of someprivilege or refusal of some benefit.
InSecretary State of Karnataka and Ors. v.Umadevi and Ors15a Constitution Bench of this Court has laid down the law in the followingterms:”Subsequently, plainlyadherence to the administer of fairness in broad daylight work is a fundamentalelement of our Constitution and since the lead of law is the basis of ourConstitution, a court would positively be handicapped from passing a requestmaintaining an infringement of Article 14 or in requesting the disregarding ofthe need to conform to the prerequisites of Article 14 read with Article 16 ofthe Constitution.” CriticismWehave seen how rule of law has been the basis for various judgements in our country.However, it is true that there are numerous cases where this concept has beendeparted.
The foundation of rule of law lies in ‘Equality’, but there are someinstances of inequality in our constitution such as no case can be filedagainst diplomats, no criminal proceeding against the President or theGovernor, legal immunities enjoyed by Member of Parliament. Thus, it can besaid that India does not follow this concept fully. Asit is said that law should develop with the changing society, it’s importantthat we plug the weakness present in this doctrine. Critics have said that therehas been no clear distinction between ‘arbitrary power’ and ‘discretionarypower’. It has also been pointed out the Dicey’s rule of law lacks to see thefuture as he cannot have imagined today’s need of discretionary power in thestate.Anotheraspect pointed out by the critics is that the Dicey’s concept of rule of lawprovides insufficient individual and civil rights as it is more concerned withthe due process than the content of law.
TheDicey’s idea of control of law has likewise been scrutinized. Law changes withtime. As the general public advances, even the law of the nation ought tocreate.
Some view the rule of law as nothing other than an apparatus of thecapable to keep up business as usual in the lawful framework. The generalagreement is that business as usual, a long way from being impartial, serves toensure the capable to the detriment of the weakened. This absence of non-partisanshipin the control of law runs in opposition to the perfect followed to Aristotle,that in light of the law each individual ought to be equivalent; that it isone’s humankind, not one’s status in the public eye that requires that laws befairly connected. More extraordinary faultfinders guarantee that “theliberal worldview has pulverized the run of law.
” The method of reasoningbehind this announcement is that, thinking about the genuine condition of the world,many liken the rule of law with legitimateness. Notwithstanding, this is animperfect condition as “legality essentially implies that there are lawsand says nothing in regards to the nature of those laws.” Hence, there arenumerous lacunas in the idea of manage of law which servers the reason ofnon-execution of the idea legitimately.
ConclusionTherule of law is a thought regarding law, equity, and profound quality. It thinksabout what laws, standards, rules, methodology, frameworks, and structuresought to be and what they ought not to be. Standards ought to be broadcastedfreely by the people groups or potentially their suitable agents. Intrinsic inthis plan are three substances. One is that the law oversees individuals andadditionally the administration itself.
Next, people ought to comply with thelaw. Third is that the standards we call law should be obey able – not just inthe feeling of being known, understandable and unsurprising, yet in the mostprofound feeling of being simply. It is a vital component for populargovernment and great administration and furthermore a help to encouragesoundness and peace. As indicated by a few, it might help keep wars fromhappening in any case. Also, Human rights can be considered as a check over thefeedback of rule of law i.e.
absolutism and tyranny. Thelead of law in the Indian culture has not accomplished the planned outcomes isthat the profoundly settled in estimations of constitutionalism or maintainingthe Constitution of India have not taken roots in the general public.Defilements, Terrorism and so on are all direct opposite to Rule of Law.
As oflate, customary law conventions, the Constitution of India, and the perseverantpart of the legal have added to the improvement of manage of law. Yet, onevents we have slipped over into government by will just to return sadder andmore astute to the control of law when hard certainties of human instinct showedthe childishness and self-love of man and reality of the announcement thatpower taints and supreme power adulterates totally. A couple of cases of howour legal framework has maintained the rule of law and guaranteed equity isplainly found in the formation of new roads looking for solutions for humanrights infringement through PIL requests and advancement of honest to goodnessintercessions by the legal in the territories of fortified and tyke work,prostitution, spotless and solid condition and so forth yet on the darker sidethere have been violations of fundamental rights too.
For e.g. the separationof eunuchs in light of their class and sex makes the group a standout amongstthe most weakened gatherings in Indian society Eunuchs may have an acknowledgedplace in Indian culture, yet it is a place basically at the base of the socialload – making them a sexual as well as an exceptionally denied social minority. 1 2010 11 SCC 12 AIR 1951 SC 4553 AIR 1965 SC 8454 Shankari Prasad vs Union ofIndia (AIR 1951 SC 455)5 1967 AIR 16436 (1973) 4 SCC 227 AIR 1976 SC 12078 AIR 1976 SC 12079 1990 SCC (2) 65310 1968 SCR (3) 65511 (1973) 4 SCC 2212 1978 AIR 59713 AIR 1975 SC 229914 AIR 1975 SC 133115 (2006) 4 SCC 1
