Is the Rule of Law Really Evolved in Indian Context?

INTRODUCTION

The term rule of law is said to be derived from the French term la principe de legalite which means the principle of legality as it refers to a government based on principles of law and not Government based on men. In this sense, the concept of rule of law is opposed to arbitrary powers. The concept of the rule of law is considered an extension of natural law and a historical ideal. It remains powerful today, as people prefer laws over the rule of powerful men. Its also the supreme manifestation of human civilization and culture and is a new lingua franca of global model thought in modern democracies. It is impossible to imagine a constitution without basic administrative law concepts like natural justice and the rule of law. Principles such as separation of powers and audi alteram partem are essential. The rule of law is neither a rule nor a law but a doctrine of state political morality. It focuses on balancing rights and powers between individuals and the state for a free society. In ancient times the Greeks understood the concept of rule of law which encompasses all government actions. Aristotle extensively studied the concept of rule of law and differentiated between procedural justice and moral justice. The rule of law falls under the category of moral justice. James M. Banuchan believed there is a difference between law and the rule of law. Primitive and non-democratic societies had laws, but progressive democracies embrace the rule of law.

RULE OF LAW IN INDIA

Origins of Rule of Law in India

With regards to India, the concept of Rule of law finds it's earliest mention in the Upanishads where it is stated that law is the king of kings. This means the actual power lies with the law, not the king. The king only imparts justice by interpreting the law, not by twisting it. In modern times democracy is have come to the opinion that law is above every government organization or institution.

Rule of Law: Definition and Interpretation

The rule of law though being extensively studied subject does not have a well-defined terminology. It is a well decided consensus that in a tussle between rule of law and positive law, the courts generally do not dismiss positive law. However, they do try to interpret positive law using the principles of the rule of law.

Landmark Supreme Court Cases on Rule of Law in India

 ADM Jabalpur v. Shivkant Shukla (AIR 1976 SC 1207) or “Habeas corpus case”

In this case, the court was of the opinion that during emergency the citizens lose the right of Rule of law. However, rule law of law is an established as a legal concept.

 Kesavananda Bharti v. State of Kerala (AIR 1973 SC 1461)

In this case, the court upheld the doctrine of ruler and declared it to be a part of the basic structure of the Constitution of India. The court also that being integral part of the basic structure of the Constitution made it unamendable by the Parliament.

 Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299)

In this case, Justice Khanna and Justice Chandrachud held that Article 329-A, added by the 39th Amendment in 1975, violated the Constitution’s basic structure. Other justices, though not fully agreeing, also believed Article 329-A offended the doctrine of the rule of law. The Supreme Court invalidated clause a of article three twenty nine of the constitution of India. The rule of law has two aspects, the formal aspect and the ideological aspect. The formal aspect refers to organized power and opposes rule by one man. The ideological aspect regulates the relationship between the ruler and the governed. So the concept of rule of law is that of varied, interests and contents.

DICEY’S CONCEPT OF RULE OF LAW

Dicey’s Observations on Administrative Law

Dicey, though was from England, he was greatly enamored by the Droit Administratif of France. He observed that disputes between public and private interests were not heard in ordinary courts. Instead, such matters were tried in special administrative courts. Thus, the law which was applicable in that case was not that of ordinary law but a special law developed by the administrative court. Dicey divided the rule of law into various parts, which are eliminated as follows:

Key Principles of Dicey’s Rule of Law

Non-existence of discretionary power in the hands of government officials: This implies that justice is to be dumped by existing legal principles and not by exercising discretionary power because discretion leads to arbitrariness. Nobody should be deprived of this property or be made to suffer in body except in cases where there is a breach of law established in the ordinary legal process by the ordinary courts of the state. Everyone is respective of one’s status, one must be subjected to the courts of the land; Everyone should be governed by the law passed by the legislative organs of the state; There should be an absence of special privileges for a government official or any other person. The rights of citizens must tend from the traditions and customs of the land recognized by the courts and the administration of justice.

Criticism of Dicey’s Rule of Law

Dicey’s administrative law comprised of only a single aspect of French system of administrative law, which was administrative jurisdiction to the exclusion of ordinary civil and criminal process. Daisy thus found similarity between French administrative law and the institution of ancient autocratic monarchy. A popular criticism of Dicey is that he misunderstood administrative law, believing it was only the French system. However, administrative law is much broader than that. It was observed that Dicey did not focus on the entire body of administrative law. He only concerned himself with administrative adjudication. Another criticism of dicey was that he also did not acknowledge the existence of administrative law in England, however the case was quite the opposite even during his time. Administrative law did exist in England as there existed special courts in England which were referred to as Ecclesiastical and Admiralty Courts. Special tribunals were established under the Poor Law Amendment Act, 1834. Poor Law Boards were set up to exercise legislative and adjudicatory powers. Also, the Constables Protection Act, 1750 gave special immunity to police officers. Another example is that government officials enjoyed discretion to enter private properties.

Local Government Board v. Arlidge and Board of Education v. Rice

In this case, the administrative agency was authorized to decide legal questions. In this case, Dicey acknowledged his mistake and recognized another body of administrative law in England. Towards the end of his life, he recognized that official law, known as administrative law, was enforceable. Judicial courts could effectively enforce this administrative law. A body of men with both official experience and legal knowledge is often considered essential. They must remain entirely independent of the government. Another important fact is that Daisy’s formulation of administrative law does not contradict the rule of law. The core principle emphasizes preventing abuse of authority and ensuring equality before the law. In this sense, there is no contradiction between Dicey’s rule of law and ordinary law.

CONCLUSION

As per rule of law, it is required that the people should be governed by the accepted rules rather than the decisions that are arbitrarily taken by the rulers. For this, it is essential to keep in mind that the rules that are made should be general and abstract, known and certain and it should apply equally to all individuals. Legal limitation on government is the essential attribute of constitutionalism. Rulers are not above the law under constitutionalism, where government power is divided. One body enacts laws, another administers them, and an independent judiciary ensures compliance. Thus, based on the above information, it is undeniable that the principle of the Rule of Law has evolved rapidly. This evolution is due to the inherent dynamism within the concept itself. This development can be accredited to the several laws laid down by the parliament and also through the numerous judicial pronouncements. However, despite all the development that the concept has undergone, Rule of Law when analysed in the context of India does exist but it cannot be said to be followed in strict sense. Instances often come to light when following a particular law becomes subject to public convenience and they subscribe to such law only if it is in line with their perception of right and wrong and is in consonance with the ideologies that they uphold.