Rule of The Law in India

Rule of Law has always been championed as one of the building blocks on which the modern society rests. Derived from the French phrase ‘La Principe de Legality', which translates to the principle of legality, it refers to a government based on principles of law and not of men. The concept of Rule of Law is that the state is governed, not by the ruler or the nominated representatives of the people but by the law. A country that enshrines the rule of law would be one wherein the Grundnorm of the country, or the basic and core law from which all other law derives its authority is the supreme authority of the state. The monarch or the representatives of the republic are governed by the laws derived out of theGrundnorm and their powers are limited by the law. The King is not the law but the law is king.

The basic essence of rule of law is that nobody is above the law of the land be it the king, the lawmakers, the judiciary etc. At this juncture, it is important to draw a distinction between rule of law and rule by law.

Rule of law is above the political tug of war. The idea is that the law should be above every person and agency whether strong or weak, rich or poor etc. Whereas, Rule by law envisages an idea whereby the law has used an instrument of political power with a view to controlling the citizens but tries never to allow a law to be used to control the state.

Historical Evolution of Rule of Law

While AV Diceyscontribution to rule of law, even to this day, remains paramount[4], the doctrine can be traced back to ancient civilizations of Greece, India, theRoman Empire and China.

The Ancient Greeks initially regarded the rule of men as the best way to govern the empire[5]. Plato, who was the founder of the first institute of higher learning in theWestern World[6], fostered the idea of benevolent monarchy where there was Philosopher King who was above the law[7]. However, in doing so he still hoped that the best men would respect the existing laws and norms[8]. Aristotle, a student of Plato[9], however, was completely opposed to this notion[10]. He expounded his opinion as follows“it is more proper that law should govern than any one of the citizens: upon the same principle if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians and the servants of the laws.”

To put this in plain words, Aristotle advocated for the rule of law. The Roman empire too advanced similar arguments in the favor of rule of law. Roman Statesman Cicero once said, “We are all servants of the laws in order that we may be free."

Further evidence can be found in the 7th Century Islamic Jurisprudence whereby no official could claim to be above the law, not even the caliph.

John Locke in the second of his Two Treatises of Government (1689)emphasized the importance of governance through “established standing Laws, promulgated and known to the People”. He contrasted this with rule by “extemporary arbitrary Decrees”[14]. French philosopher Montesquieu in his work Spirit of the laws has made a substantial contribution to the field of rule of law in the form of the doctrine of separation of powers[15], particularly the separation of judicial power from executive and legislative authority. This has enabled the courts to act as the upholders of the sanctity of the laws.

However, the most important, prevalent and popular contribution to the field of Rule of Law has been that of Prof. AV Dicey. After Sir Edward Coke had first propounded the term in the case of prohibitions[16]AV Dicey further elaborated on it in his book ‘The Law of the Constitution published in 1885. According to Prof. Dicey, rules of law contains three principles[17]:-

•Supremacy of Law

•Equality before Law and

•The predominance of Legal Spirit

Supremacy of Law:

This has always been the basic understanding of rule of law that propounds that the law rules over all people including the persons administering the law. The lawmakers need to give reasons that can be justified under the law while exercising their powers to make and administer the law.

Equality before the Law:

While the principle of supremacy of law sets in place cheques and balances over the government on making and administering the law, the principle of equality before the law seeks to ensure that the law is administered and enforced in a just manner. It is not enough to have a fair law but the law must be applied in a just manner as well. The law can not discriminate between people in matters of sex, religion, race etc. This concept of the rule of law has been codified in the Indian Constitution underArticle 14 and the Universal Declaration of Human Rights under the preamble and article 7.

The predominance of legal spirit:

In including this as a requirement for the rule of law, Dicey’s belief was that it was insufficient to simply include the above two principles in the constitution of the country orin its other laws for the state to be one in which the principles of rule of law are being followed. There must be an enforcing authority and Dicey believed that this authority could be found in the courts. The courts are the enforcers of the rule of law and they must be both impartial and free from all external influences. Thus the freedom of the judicial becomes an important pillar of the rule of law.

In modern parlance Rule of Law has come to be understood as a system which has safeguards against official arbitrariness, prevents anarchy and allows people to plan the legal consequences of their actions.

Dicey’s writings about rule of law are both influential and enduring to the legal committee especially judges as well as legal practitioner[18].

In 1959 around 200Jurists from across the world gathered in Delhi and discussed extensively the fundamental principle of rule of law[19].In what is known as the ‘The Declaration of Delhi’ they declared that the rule of law implies certain rights and freedoms, that it implies an independent judiciary, and that it implies social, economic and cultural conditions conducive to human dignity[20].

Rule of Law in India

India has adopted the common law system which basically owes its origins to British Jurisprudence[21]. The British Jurisprudence, on the other hand, is based on the ‘Rule of Law’[22]. India has imbibed the rule of law in its constitution from the very beginning. In the era-defining case of KeshavnandaBharti v State of Kerela [23], the court held that the Rule of Law is a part of the basic structure of the constitution and thus is immune from amending powers of the Government.

Dicey always maintained that there was no need for written laws to keep a tab on the government and was of the opinion that natural law and rule of law will be sufficient to prevent arbitrary exercise of power by the executive. India while conforming to natural law has codified certain laws to keep tabs on the executive arbitrariness[24].

In India, the constitution reigns supreme. Under it, the Rule of Law pervades over the entire field of administration and every organ of the state is regulated by Rule of Law. Article 13 of the constitution states that any law which is not in conformity with provisions of the constitution shall be invalid. This reinforces the position of the constitution as the supreme law of the country. It is the supreme legal document from which all other laws in the country derive their power.

Equality before the law, an idea of which Prof. Dicey was a huge advocate and also proposed as one of the three principles of rule of law also finds a place in the Indian Constitution under article 14. Further, the preamble of the Indian constitution enshrines the values of Justice, Liberty, and Equality.

Article 21, perhaps the most prominent example of rule of law, contemplates that no person shall be deprived of their right to life and personal liberty except for the procedure established by law.

In its role as the protector of the law of the land, the Indian Judiciary has been instrumental in upholding, propagating and advancing Rule of Law. Over the last 70 years, the question regarding Rule of Law in the Indian context has taken center stage multiple times. By adopting a positive approach and flexible approach to interpreting the law, they have ensured that Rule of law is adopted, not only on paper but in spirit and practice all over the country.

In the case of Sukhdev v Bhagatram[25] the court observed as follows“Whatever be the concept of the rule of law, whether it be the meaning given by Dicey in his "The Law of the Constitution" or the definition given by Hayek in his "Road to Serfdom" and"Constitution of liberty" or the exposition set-forth by Harry Jones in his "The Rule of Law and the Welfare State", there is, as pointed out by Mathew, J., in his article on "The Welfare State, Rule of Law and natural justice" in "Democracy, Equality and Freedom," "substantial agreement is in juristic thought that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power, wherever it is found". It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimum requirement.”

The essence of rule of law is that there is no existence of arbitrary power and if such exercise does take place the citizens are free to approach the courts who in their capacity review administrative action and come down heavily in the case of over reach[26]. Anything out of the purview of the law is ultravires[27]. A trite principle of common law countries that executive must act under the law and not by its own fiat is still in force in India thanks to the judiciary[28].

The judiciary’s power of review also stems from the concept of rule of law. Over the years several laws have been struck down for being violative of the spirit of the Indian constitution, of which rule of law forms a core component[29]. The Judiciary ensures that the executive or the legislature don’t overstep their marks and thus keeps the system of checks and balances alive[30]. However, there exists a fine line before Judicial Review and Judicial Activism and it is the latter that more often than not amounts to judicial overreach and infringes the separation of powers between the wings of the government[31]. India there have been several instances of Judicial Overreach. A classic example of this is the recent case of making it mandatory for Cinema Halls to play the national anthem. In what was a writ petition concerning the commercial exploitation of the National Anthem, the CJI observed:“a time has come, the citizens of the country must realise that they live in a nation and are duty bound to show respect to the national anthem, which is a symbol of the constitutional patriotism inherent national quality”. The CJI observed that there was no space for the“perception of individual rights”

The Lodha Committee reforms for the BCCI[32] or constituting a SIT for the then UPA 2 Govt.[33] are other prominent examples of Judicial Overreach. However, there are exceptions to the rule. Such as the Jessica Lal case[34].

Rule of Law has always been an effective principle to combat exercise of arbitrary power. In the case of Indira Gandhi Nehru v Raj Narain, the Courts struck down Section 329A inserted into the constitution via the 39th Amendment which provided certain immunities to the election of office of Prime Minister from judicial review. the judiciary took swift action and struck this down for not being consonant with the rest of the constitution.

The rule of law vents deep in the soul of the Indian Constitution. In the landmark case of ADMJabalpur[35] the Justice Khanna held that even in the absence of article 21state has got no right to deprive an individual of his life and liberty for Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning…”Like every other thing in this world, Rule of Law is not free from its drawbacks. Dicey's theory which has been the biggest influencer of this principle has been vehemently criticised for being formal, partly political, more facultative and not substantive[36].

In fact, the idea of rule of law has been found to be followed by the Nazi Regime in Germany or the Apartheid South Africa. However, their law didn’t even meet up to the basic standards of human decency[37]. Even in India, the fact that no case can be filed against the Bureaucrats and Diplomats in India[38], no criminal proceedings whatsoever can be instituted or continued against thePresident[39],or the Governor of a state[40], in any court during his term of office, no process for the arrest or imprisonment of the President, or the Governor of a state, can be issued from any court during his term of office[41]and the privileges enjoyed by the members of parliament with respect to legal actions are in a way contradictory to the what the principle of Rule of Law contemplates[42]. Thus, rule of law is far from perfect. Its implementation can be lauded and criticized in the same breath. However, in its essence, it forms the backbone of a democracy.