Importance and Role in shaping executive action
The underlying principle of a common legal system is the supremacy of law. The makers of our constitution intended India to be governed by the rule of law. It essentially means that the government does not enjoy any power outside the purview of law. The effect of this principle is visible on the administration, which in itself has no inherent powers and is confined within the restrictions imposed on it by the authorising body or statute. In other words, the powers enjoyed by the Indian administration is derived from law and any deviation from such law will render it invalid or subject it to judicial control.[1]
A.V Dicey had famously remarked that ‘a government should be based on the principles of law and not of men.’[2] Highlighting the importance of the principle of rule of law, he propounded his theory based on- supremacy of the law, equality before the law and the unparalleled authority of the courts. This traditional approach has since paved the way for the evolution of the principle of rule of law in its applicability on administrative law in the modern day.
The primary function of the rule of law is to ensure that no person is deprived of his right, liberty or property without the authority of law. It places ‘law’ at the highest pedestal as the supreme authoritarian. Every individual has an inherent right to be protected by law. An individual also has certain other rights guaranteed by the constitution which cannot be infringed upon by any authority unless law itself validates it. The rule of law serves to ensure the protection of individuals from any illegitimate exercise of authority over them. This function is exercised by supervising the administration with tools such as the doctrine of ultra vires that invalidates any unfair or violative law, the doctrine of legitimate expectation that recognises the legal expectation of a thing although such a thing is not a right in it itself and through various administrative tribunals that wield the power of judicial review over violative and discriminatory laws. In a common legal system, the freedom of an individual is the ultimate objective and the rule of law is the agent that ensures its fulfilment.
Uncontrolled or unrestrained power leads to anarchy. It results in the creation of arbitrary powers vested in a single body which can then be misused to deprive a person of their liberty and freedom. The rule of law is instrumental in regulating executive action as it serves the purpose of recognising and distinguishing between arbitrary and discretionary powers of the government. It is an accepted fact that the government is placed at a higher footing than the citizens of our country in terms of certain rights and privileges enjoyed by it and the officials constituting it. The inequality that exists between the government and a citizen is vested in the roots of a political society and it would be an incorrect assumption to ignore this existing contrast of powers and privileges and place both at an equal footing.[3] In order to keep a check on these ‘special’ powers of the government and its officials, the rule of law principle performs the function of regulating executive action by exercising proper control and restraining undue expansion of such powers. Conceding to the fact that the government does enjoy discretionary powers, the rule of law strives to strike a balance between governmental power and private interests by providing for control mechanisms and redressal forums. [4] It serves as an anti-thesis to the idea of arbitrariness by re-affirming the basic democratic ideology of supremacy of the law.[5] It confirms the position that the law governing our country is above the government and not vice-versa. It also imposes a mandatory duty on the executive to discharge its functions in a fair and just manner within the principles of equality, subjecting any abuse of such power to judicial scrutiny. Hence, the rule of law is fundamental to the efficient working of a democratic society and serves as the foundation of a welfare state.
A Critical Angle
The theoretical aspect of the rule of law has drawn criticism next to none. Its intention is unquestionable in a society promoting liberal democracy where the fundamental necessity is to abolish the exercise of arbitrary powers. However, in India, the practical situation offers a contrasting narration, one where the rule of law has created a power elite that dictates the functioning of the government. The law, itself being the ‘sovereign’ is ironically created by a group of people who possess the power to manipulate it in any way they seem fit. The rule of law, lacking a clear objective definition is subject to creation by the legislature and interpretation by the judiciary which is often criticised heavily for its erroneous explanation. The judiciary has been subject to heavy criticism for its interpretation of the law on numerous occasions. Individuals at times fail to recognise their rights due to the undetermined nature of the rule of law leaving them unsure about the legitimacy of their actions. Adding to this is the practical dominance of corruption at every stage in the administration and the judiciary. The evil agencies of corruption have essentially given rise to a ruling elite that enable the wealthy to create and dictate power structures in the society which ultimately leads to the ineffectiveness of law as a barrier against arbitrary exercise of power[6]. Every legislature is created subsequent to the influence wielded on it by the ‘powerful’ private parties in the society. These wealthy individuals make or break the government in terms of finance and contributions in several ways. In order to keep this creamy layer satisfied, the legislature often reduces the principle of rule of law to a tool that is used to legitimize already existing legal relationships and power structures in the society, thereby proving its entire intention futile. In the present day, there is an extreme need to expedite the process of accurate judicial interpretation. The backlog of cases and pendency of trails has made the principle of rule of law redundant by denying the individual his right for years together. There has to be certain changes made to the practical application of the principle to strike balance with its theoretical intentions.
Possible Solutions
In order to realise the actual utility of the rule of law, the first step should be to give it an objective definition that is wide enough to bring within its ambit institutional and informal constraints that restrict the government.[7] A narrow definition of the rule of law that includes merely a book of rules focused on by the judiciary does not serve the purpose that it seeks to fulfil. Rules must be made strict enough to disallow any kind of manipulation by giving it a broader description and not limiting it to interpretation solely by the judiciary. At ground level, there is an acute need to root out the corrupt, be it a high ranking official or an official at the lowest level of hierarchy. The administrators need to be supervised at every stage and their scrutiny should be conducted in a stringent manner. There is also a need to bring reform in the practices and attitude of civil servants and administrative officials, who play a pivotal role in the shaping of executive action. These are the officials who are actually concerned with the implementation of policies and orders at the ground level. If they are habituated and trained to be free from corruption and ensure compliance with the rule of law, that would amount to half the job being done in terms of effective implementation.
The principle of rule of law is not an abstract concept in India. Article 14 of our constitution affirms the necessity to follow due procedure with regard to the rule of law. The ‘equality’ clause of our constitution strives to achieve equality of all citizens before the law and the equal protection of laws by subjecting arbitrary administrative action to judicial scrutiny. The ideal result that is sought to be achieved is to guarantee personal liberty and freedom to all individuals within the country. The theoretical approach to accomplish this goal exists in the form of the principle of rule of law in our democracy. However, the practical approach needs to be reformed desperately by increasing scrutiny and compliance for only then will the goal of a welfare state be achieved. Progress in this regard has been initiated by the Supreme court by virtue of a majority decision in Keshavananda Bharti v. State of Kerala,[8] through which, the principle of rule of law has been made a part of the basic structure of the constitution, thereby putting it beyond the scope of the legislature. This only re-affirms the stance that law in our country is the supreme authority. The belief is existent, the practice must follow.
[1] Principles of Administrative Law, Jain MP, Jain SN, 8th edition, Lexis Nexis.
[2] Introduction to the study of law of the constitution, Dicey AV, (1885)
[3] ADM Jabalpur v. S. Shukla, (1976) 2 SCC 521
[4] Supra at 1
[5] Supra at 2
[6] The rule of law: An unqualified human good? Morton J Horwitz, Yale Law Journal 86, (1976-77)
[7] Supra at 6
[8] (1973) 4 SCC 225
This article is authored by Satvik Upadhya, student of B.A. LL.B (Hons.) at Jindal Global Law School, Sonipat.
Also Read – Article 124, Constitution of India – Interpretation and Evolution.
