Understanding The Rule of Law: a Scholarly Perspective

The idea of Rule of Law is one of the integral building blocks of a Modern democratic society. Furthermore, the laws are made for the welfare of the people to maintain peace and harmony between the conflicting forces in society. Moreover, one of the prime objects of making laws is to maintain law and order in society and develop a peaceful environment for the progress of the people. Thus the concept of Rule of Law plays an important role in this process. Rule of law is of old origin and is an ancient ideal. As discussed by ancient Greek philosophers such as Plato and Aristotle around 350 BC. Platoon his writings on the idea of rule of law, “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state”. Likewise, Aristotle further endorsed the concept of Rule of law by writing that “law should govern and those in power should be servants of the laws.” The term has been derived from the French phrase ‘La Principe de Legality’, the principle of legality which moreover refers to a government based on principles of law and not of men. In a much broader sense, Rule of Law means that Law is supreme and is above every individual. On the contrary, the idea of rule of law stresses the procedure established by law, where the government authority must only be exercised in consonance to written laws.

Moreover, no individual is above the law and should abide by it. The core principle of Rule of Law is aimed at ensuring safeguard against arbitrary actions of the government authorities. Furthermore, the idea of Rule of law has been described as a rare and protean principle of our political tradition. More importantly, the term Rule of Law does not provide anything about how the laws are to be formulated or anything specific like the Fundamental Rights or the Directive principles or equality. Moreover, it provides for two basic concepts that are Law must be obeyed by the people and that the law must be made in such a way that it is able to guide the behavior of its subjects. Different legal theorists have different approaches towards the concept of Rule of Law. The Doctrine of the Rule of Law is also considered as the basis of administrative law. It was expounded Sir Edward Coke and was further developed by Prof. A.V.Dicey in his book ‘The law of the Constitution’ published in 1885. According to A V Dicey, Rule of Law comprises three principles.

• Supremacy of Law: Where no man is above law or can only be punished for a breach of the law. Every person is to be governed by law including those who are administering it and also governs the lawmakers while exercising their powers to make and administer the law. More so they are bound to justify their act by proper reasoning otherwise the whole motive of the doctrine is hampered.
• Equality before the law: The principle states equal an ordinary law of the land for all the classes of people irrespective of their caste, creed, religion etc. and are bestowed to the regular law courts. The fair laws should be administered and enforced in just and proper manner.
• The predominance of legal spirit: According to Dicey written guarantee is immaterial unless there is a mechanism by which it can be enforced. Such authority is believed to be present in Courts which should be unbiased and free from any kind of external influences. To further add judicial control of the Administrative action is an important pillar of Administrative Law.

The Doctrine of the Rule of Law can be divided into two categories. Firstly, where the law should conform to standards designed to moreover enabling effectiveness in order to guide action. Secondly, the various legal machinery of enforcing the law should not deprive it of its ability to guide through distorted enforcement and should supervise conformity to the rule of law and moreover provide effective remedies in cases of deviation from it. Certain principles of the doctrine are as follows:

• Laws must be prospective, open, and clear.

One cannot be guided by a retroactive law More so, as it does not exist at the time of action. Sometimes it is then known for certain that a retroactive law will be enacted. When this happens retroactivity does not conflict with the rule of law. Furthermore, laws must be open and effectively adequately publicized. More importantly, if it is to guide people they must be able to find out what it is. Furthermore, laws must be clear. An ambiguous, vague, obscure, or imprecise law is likely to mislead or confuse at least some of those who desire to be guided by it.

• Laws should be relatively stable.

Laws should not be changed too often. On the contrary, if they are frequently changed people will find it difficult to find out what the law is at any given moment and will be constantly in fear that the law has been changed since they last learned what it was. To further add stability is essential if people are to be guided by law in their long-term decisions.

• Making of Laws

The Laws formulated should be in the interest of the Public and should conform to the ideas of equality.

• Independence of the judiciary

The independence of the judiciary must be guaranteed. The rules concerning the independence of the judiciary, the method of appointing judges, their security of tenure, the way of fixing their salaries, and other conditions of service are designed to guarantee that they will be free from extraneous pressures and independent of all authority save that of the law. They are, therefore, essential for the preservation of the rule of law.

• Principles of Natural Justice

Laws should allow a free and fair hearing, absence of bias.

• Courts having review power

Courts should review both subordinate and parliamentary legislation. More importantly to ensure conformity to the rule of law

• Courts should be easily accessible

Issues such as Long delay’s, excessive costs, etc., may effectively turn the most enlightened law to a dead letter and frustrate one’s ability effectively to guide oneself by the law. Moreover, accessibility to courts should be of paramount importance.

Moving on The doctrine of Rule of Law has been adopted in the Indian Constitution. The ideals of the Constitution, justice. liberty and equality are enshrined in the preamble. The Constitution of India is the supreme law of the country and other laws are to be required in conformity with the Constitution. Furthermore, any law which is in violation of any provision of the Constitution is declared invalid. Part III of the Constitution of India guarantees the Fundamental Rights. To further add, Article 13(l) of the Constitution makes it clear that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provision of Part III dealing with the Fundamental Rights, shall, to the extent of such inconsistency, be void. Moreover, Article 13(2) provides that the State should not make any law which takes away or abridges the fundamental rights and any law made in contravention of this clause shall, to the extent of the contravention, be void. The Constitution of India guarantees equality before the law and equal protection of laws. Article 21 guarantees the right to life and personal liberty. It provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Article 19 (1) (a) guarantees the third principle of rule of law being freedom of speech and expression.

Moreover, Article 19 guarantees six Fundamental Freedoms to the citizens of India. (1) freedom of speech and expression, (2) freedom of assembly, (3) freedom to form associations or unions, (4) freedom to live in any part of the territory of India and (5) freedom of profession, (6) occupation, trade or business. However, the rights under these freedoms are not absolute but subject to the reasonable restrictions which may be imposed by the State, under Article 19(2) of the Constitution. Article 20(1) of the Constitution provides that no person shall be convicted of any offense except for violation of a law in force at the time of the commission of the act charged as an offense not be subject to a penalty greater than that which might have been inflicted tinder the law in for cc at the time of the commission of the offense. According to Article 20(2), no person shall be prosecuted and punished for the same offense more than once. More so, Article 20(3) makes it clear that no person accused of the offense shall be compelled to be a witness against himself. In India, the meaning of rule of law has been much expanded. It is now regarded as a part of the basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by Parliament. It is also regarded as a part of natural justice. In Kesavanda Bharti vs. the State of Kerala,[1] The Supreme Court enunciated the rule of law as one of the most important aspects of the doctrine of basic structure. Furthermore in Menaka Gandhi vs. Union of India,[2]

The Supreme Court declared that Article 14 strikes against arbitrariness. In Indira Gandhi Nehru vs. Raj Narayan,[3] Article 329-A was inserted in the Constitution under the 39th amendment, which provided certain immunities to the election of office of Prime Minister from judicial review. The Supreme Court declared Article 329-A as invalid since it abridges the basic structure of the Constitution. In Raman Dayaram Shetty v. International Airport Authority of India[4], the Supreme Court held that the great purpose of rule of law is the protection of the individual against arbitrary exercise of power, wherever it is found. In A.D.M Jabalpur vs., Shivakant Shukla [5] also known as the Habeas Corpus Case. A large number of persons was arrested under the Maintenance of Internal Security Act. 1971 without informing the grounds for arrest. Following the proclamation of emergency. It was however in this case the court held Article 21 is our rule of law. If it is suspended, there is no rule of law. The majority judgment held that the Constitution is the mandate and the rule of law. Furthermore, in Sheela Barse v. State of Maharashtra [6], the Supreme Court held that on fairness to women in police lock-up and also drafted a code of guidelines for the protection of prisoners in police custody, especially female prisoners.

Furthermore in Veena Sethi v. State of Bihar [7] also the Supreme Court extended the reach of rule of law to the poor who constitute the bulk of India by ruling that rule of law does not merely for those who have the means to fight for their rights and expanded the locus standi principle to help the poor.

Works Cited

1. Raz, J. (1977). The rule of law and its virtue. Law Quarterly Review, 93(2), 195-214.
2. Hart, H. L. A. (1961). The concept of law. Oxford University Press.
3. Bingham, T. (2010). The rule of law. Penguin Books.
4. Gowder, P. (2016). The rule of law in the real world. Cambridge University Press.
5. Shapiro, I. (Ed.). (1994). The rule of law: Nomos XXXVI. NYU Press.
6. Dubber, M. D., & Tomlins, C. (Eds.). (2018). The Oxford handbook of the rule of law. Oxford University Press.
7. Bellamy, R. (2010). The rule of law and the separation of powers. Routledge.
8. Sellers, M., & Tomaszewski, T. (Eds.). (2010). The rule of law in comparative perspective. Springer.
9. Neumann, F. (1974). The rule of law: A comparative perspective. SUNY Press.
10. Marshall, D. (2014). The international rule of law movement: A crisis of legitimacy and the way forward. Harvard International Law Journal, 55(2), 409-448.