Rule Of Law Under Indian Constitution

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Rule of law
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INTRODUCTION

The bedrock of our democracy is the “Rule of Law” and that means we have to have an independent judiciary, judges who can make decision independent of the political winds that are blowingCaroline Kennedy

The Constitution of India has defined and declared the common goals for its citizens as “To secure to all citizens of India, Justice – Social, Political and Economic. The eternal value of the constitutionalism is the Rule of Law which has three facets i.e. “Rule by law, Rule under law and Rule according to law”. Rule of Law embodies the doctrine of Supremacy of law. It is basic and fundamental necessity for a disciplined and organised society. If a government acts according to the principle of Rule of law then individual liberty and right can be better protected. The principle implicit in the Rule of law is that the government must act under the law, and not by its own decree or fiat, is still a cardinal principle of the common law system. The ‘Government’ is regarded as not having an inherent power of its own but all its power flow and emanate from the “Rule of law” a principle which plays such vital role in all democratic countries of today. Under our Constitution, it is the primary responsibility to maintain law and order so that the citizens can enjoy the peace and security. Thus in India, the Rule of law has been considered as the basic feature of the constitution and therefore it cannot be abrogated even by the Parliament. The ideals of the constitution; liberty, equality and fraternity have been enshrined in the Preamble.

The basic purpose of the law is the quest for the Justice which should be administered without fear and favour. As George Gurvitch says, Justice is used in two senses- “faithful realization of the existing laws against any arbitrary infraction of it”, and search for “ideal element in all law,” that is the idea which the law tends to subseve.”[1] Law is inescapable and the antagonist that is the anarchist regards ‘Justice’ as mask to dominate the weak by the strong. Similarly, the communist considered law as a medium of domination of the proletariat by the bourgeoisie. But despite this view everybody concurs that the law is the fulfilment of the legitimate expectation of an individual and it protects the individual against the violation of his rights.[2]

The concept of the Rule of law is that the state is governed, not by the ruler, nor by the nominated representatives of the people but the state is governed by the laws. A country that enshrines the “Rule of Law” would be one where in the grundnorm[3] of the country, or the basic and core law from which all other derives its authority is the supreme authority of the state. The monarch or the representatives of the republic are governed by the laws derived from the Grundnorm and their powers are limited by the law. “The king is not the law but the law is the king.[4] The rule of does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of the enforcement of their civil and political rights. The poor too have the civil and political rights and the rule of law is meant for them also, though today it exists only on paper and not in the reality.[5] Rule of law and independence of judiciary go hand in hand. There cannot be a Rule of law without an independent judiciary. Judiciary is an essential part of the life of a nation like the legislature and executive.[6] No society can exist without the concept of rule of law and independent mechanism.[7] Therefore the impartiality and independence of Judiciary depends on the high standards of the conduct of Rule of law.

The essence of fair and fearless administration of Justice is a sine qua non of a successful democratic government”

CONCEPT OF RULE OF LAW

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As propounded by IP Massey in his book – ‘Administrative Law’, Rule of Law is a dynamic concept and, like many other such concepts, is not capable of any exact definition. However, it does not mean that there is no convention on the basis of values which it represents. Rule of Law collates the rules which are based on the principles of freedom, equality, non-discrimination, fraternity, accountability and non-arbitrariness and is certain, regular and predictable. “The concept shares the common English inheritance and apart from the statement of generalities, it embraces a body of specific detail.[8] It furnishes the foundation for a pragmatic system of governance. The editors of Prof. De-Smith explain: “that laws as enacted by Parliament be faithfully executed by officials; that orders of courts should be obeyed; that individuals wishing to enforce the law should have reasonable access to the courts; that no person should be condemned unheard, and that power should not be arbitrarily exercised.[9] The[10] rule of law requires the government should be subject to law, rather than the law subject to the government. In fact, it could be marginalized as a modern name of Natural Law.

Jurisprudentially, Romans called it ‘Jus Naturale‘, mediaevalists called it the ‘Law of God’, Hobbes, Locke and Roussueau called it ‘Social Contract‘ or ‘Natural Law‘ and the modern jurists call it ‘Rule of Law‘. The idea has been developed from the French phrase ‘la principle de legalite‘, i.e. a Government based on the principles of law and not of men.

In India too, the concept of Rule of Law can be marked from Upanishads where it provides that Law is Kings of Kings. Indeed, from the legendary days of Kautilya’s Arthasastra — the rule of law has had the stamp of natural justice, which makes it social justice.[11] Also Plato believed that if ordinary men were allowed to rule by will alone, the interests of the community would be scarified to those of the ruler. In a monarchy, the concept of law was developed to control the exercise of arbitrary powers of the monarchs who claimed divine powers to rule. A.V. Dicey also propounded that wherever there is discretion, there is room for arbitrariness. However, in a democratic set up like India, the concept has processed a different dimension and evaluates all the din and clamour of democracy, justice has been greatly influenced by Rule of Law as a transcendental and paramount value, overseeing the exercise of all powers.

RULE OF LAW UNDER INDIAN CONSTITUTION

In Indian Constitution, Rule of Law has been adopted under the Preamble where the ideals of justice, liberty and equality are enshrined. The Constitution has been made the supreme law of the state, and other laws in conformity with the Constitution. Part III of the Constitution of India guarantees the Fundamental Rights. Article 13 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 provisions of Part III dealing with the Fundamental Rights, shall, to the extent of such inconsistency, be void.[12] Article 21 provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law.[13]

Article 19 guarantees six Fundamental Freedoms to the citizens of India — freedom of speech and expression, freedom of assembly, freedom to form associations or unions, freedom to live in any part of the territory of India and freedom of profession, occupation, trade or business.[14] Article 20 provides that no person shall he convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence not be subject to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Also, no person shall be prosecuted and punished for the same offence more than once[15] and makes it clear that no person accused of the offence shall be compelled to be witness against himself.[16]

In India, the Constitution is supreme and the three organs of the Government viz. Legislature, Executive and Judiciary are subordinate to it. It provides though for encroachment of one organ (eg-Legislature) upon other (eg-Judiciary) if its action is malafide, and the citizen (individual) can challenge under Article 32 of the constitution if the action of the executive or legislature violates the fundamental rights of citizens before the judiciary.[17]

In India, it is regarded as a basic structure of the constitution and therefore, it cannot be abrogated or destroyed even by parliament.[18] The principle of natural justice is also considered as the basic correspondent of Rule of Law. The Supreme Court held that in order to satisfy a challenge under Article 14, the impugned State act must not only be non discriminatory, but also be immune from arbitrariness[19], unreasonableness or unfairness (substantively or procedurally)[20] and also consonant with public interest.[21] In A.D.M Jabalpur v Shivakant Shukla,[22] the court by majority has held that there is no rule of law other than the constitutional rule of law. However, Justice Khanna did not agree with the above view. He rightly said, “Even in the absence of Article 21 of the constitution, the State has no power to deprive a person of his life or liberty without the authority of law.

Similarly the Supreme Court while explaining the rule of law in K.T. Plantation Pvt. Ltd. v. State of Karnataka,[23] held as follows;

The rule of law as a principle contains no explicit substantive component like eminent domain but has many shades and colours. Violation of principle of natural justice may undermine the rule of law resulting in arbitrariness, unreasonableness, etc. but such violations may not undermine the rule of law of law so as to invalidate a statue. The rule of law as a principle is not an absolute means of achieving equity, human rights, justice, freedom and even democracy and it all depends upon the nature of the legislation and the seriousness of the violation. The rule of the law as an overarching principle can be applied by the constitutional courts, in the rarest of rare cases and the courts can undo laws, which are tyrannical, violate the basic structure of the constitution and norms of law and justice.”

CONCLUSION

At the heart of any system based on the rule of law, there is a strong judicial system, independent and equipped with powers, financial resources, material and skills that are necessary to protect human rights within the framework of administering justice[24]

In developing democratic countries, the Judiciary has to play an important role if the law has to keep pace with the social needs. Such an approach is very pertinent in the field of the legislation and subordinate legislation. Law is not static, but dynamic and therefore the norms to control it cannot be static. The role of judiciary with advancement in the thought process of human being had shifted its traditional role to more participatory one to cater to the changing needs of the society. Apart from the basic role, the judiciary is also concerned with the function of acting as a final interpreter of the Constitution and other organic laws, protector of Fundamental rights of the citizens and guardian to keep necessary checks upon the constitutional transgressions by other organs of the state.

All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by the ‘Rule of Law’ and an independent and virtuous Judiciary.Andrew Jackson.

[1] 8 Justice George Gurvitch, Encyclopaedia of the social sciences 41(Macmillan Company 1932).

[2] Todd J. Zywicki, The Rule of Law, Freedom and Prosperity, 10 Supreme Court Economic Review 1,4 (2003).

[3] Mridushri Swarup, Kelsen’s Theory of Grundnorms, (June 15 2018, 9: 00 AM),  http://Manupatra.com /round up/ 330/Articles//201.pdf

[4] Thomas Paine, Common Sense, (June 15 2018, 10:00 AM), http://www.gutenberg.org/files/147/147-h/147-h.html

[5] Muncipal Council, Ratlam v. Vardhichand, AIR 1980 SC 1622 (India).

[6] S.B Sinha, Judicial Independence, Fiscal Autonomy and Accountability 21 (Nyaya Deep, 2006).

[7] Sunil Deshta, Independence and Accountability of Judiciary in India: Problems and Solution, 3 Orient Journal of Law and Social Sciences, March, 2009, at 26, 46.

[8] Justice J.S. Verma, 50 Years of Freedom under Rule of Law: Indian Experience 325 (Soli J. Sorabjee ed., Law & Justice: An Anthology, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2003).

[9] De Smith et al., Judicial Review of Administrative Action 14 (5th Ed. 1995).

[10] Wade & Forsyth, Administrative Law 20-25, 343- 344 (2005).

[11] Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 (India).

[12] INDIA CONST. art. 13. Cl.1.

[13] INDIA CONST. art. 21.

[14] INDIA CONST. art. 19. Cl.1.

[15] INDIA CONST. art. 20. Cl.2.

[16] INDIA CONST. art. 20. Cl.3.

[17] Justice FM Ibrahim Kalifulla, Role of Courts in upholding Rule of Law, NJA, Jan.-Feb. 2014, at 1, 3.

[18] Indira Gandhi v Raj Narain, AIR 1975 SC 2299 (India).

[19] Nakara v Union of India, (1983) UJSC 217 (Paras. 13, 14) (India).

[20] Maneka Gandhi v Union of India, AIR 1978 SC 597 (India).

[21] Kasturi v State of Jammu & Kashmir, AIR 1980 SC 1992 (2000) (India).

[22] A.D.M Jabalpur v Shivakant Shukla,AIR 1976 SC 1207 (India).

[23] K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1 (India).

[24] Report of the General Secretary on the Rule of Law and transitional justice for societies that are prone or emerging from conflict (s/2004/616, paragraph.35).