By Mounica Kasturi, Symbiosis Law School, Pune
“Editor’s Note: The principle of Rule of Law is indispensable to any legal and political system. It imbibes the notions of fairness, equality and non-arbitrariness. The origin of the principle can be traced back to ancient Greece, where it was largely positive. It gradually developed in Rome to include negative traditions as well. An authoritative interpretation was given by A.V. Dicey, who suggested a three-pronged definition of the principle. But his conception is not without flaws. In India, Rule of Law is embodied in the Constitution- in the ideals enshrined in the Preamble and in Part III. Over time, the Constitution has been interpreted by the judiciary in a manner so as to afford a liberal interpretation to the principle. Rule of Law has been held to mean due process and a just, fair and non-adrbitary procedure. This has been given effect through the principle of separation of powers that prevents one organ of the government form over-reaching and acting in an arbitrary manner, by creating a system of checks and balances. However, any encroachment or adverse action on the part of one organ, severely undermines the principle of Rule of Law.”
The term ‘Rule of law’ is a phrase that is very commonly used whenever law is being studied. It is derived from the French phrase ‘la principe de legalite’ which means the ‘principal of legality’. It refers to ‘a government based on principles of law and not of men’. In other words, the concept of ‘la Principe de legalite’ is opposed to arbitrary powers. ‘Rule of Law’ as defined by Dicey, means “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government.”[i]
The concept of rule of law is a very dynamic concept, capable of interpretations to enable the successful working of a democracy. In simple terms, Rule of Law is the restriction on the arbitrary exercise of power by subordinating it to well-defined and established laws. Law should govern the nation and not the arbitrary decisions by individuals. Thus, Rule of Law embodies the doctrine of supremacy of law.
Rule of Law is as old as civilisation. Times and society have changed the perceptions of various authors resulting in different and varied definitions and approaches to Rule of Law. Many accounts of the rule of law identify its origins to classical Greek thought, quoting passages from Plato and Aristotle. Greek ideas with respect to the rule of law are therefore best understood in the form of exemplary models, providing inspiration and authority for later periods.[ii] The Roman contribution to the rule of law tradition was negative as well as positive, with the negative tradition being of much greater consequence[iii].
The Germanic customary law proposition that the king is under the law has been widely identified as an independent source of the rule of law in the medieval period[iv]. The Magna Carta, 1215 although it stands on its own as a historical event with reverberating consequences in the rule of law tradition, epitomized a third Medieval root of the rule of the law- the effort of nobles to use law to restrain kings [v]. Then came the Liberalist and Federalist approaches to Rule of Law. Locke’s design involved a limited delegation of power, for some purposes, from individuals to the government, revocable by them if the government failed to meets its obligations. He specified a separation of powers between legislature and executive – though not a separate judiciary – to assure that the government acts according to duly enacted standing laws[vi]. And he argued that absolute monarchy is inconsistent with civil society because such a monarch would judge his own cases, continuing in a state of nature in relation to the people. Finally, consistent with the consensual nature of the civil society, Locke held that legislation should be established by majority vote[vii].
In this backdrop, following Montesquieu’s approach, in the year 1885, A.V. Dicey on observing the UK model laid down three principles to be arising out of Rule of Law[viii].
- Supremacy of Law;
- Equality before the law;
- Predominance of Legal Spirit.
In France, Dicey observed that the government officials exercised wide discretionary powers and if there was any dispute between a government official and a private individual, it was tried not by an ordinary court but by a special administrative court. The law applicable in that case was not ordinary law but a special law developed by the administrative court. From this, Dicey concluded that this system spelt the negation of the concept of rule of law. He felt that this was against the principle of equality before the law. He also stated that all English are bound by the Rule of Law and there is no external mechanism required to regulate them. Therefore, he concluded that there was no administrative law in England[ix].
Dicey’s concept of Rule of Law had its advantages and disadvantages. Rule of Law imposed and helped in imbibing a sense of restraint on administration. The government was bound to work within the legal framework. Further, by stating that the law is supreme, he made every law made by the legislature supreme, thus, promoting parliamentary supremacy. There cannot be self-conferment of power as even an ordinary law is supreme. All laws, public or private, are being administered by the same set of independent and impartial judiciary. This ensures adequate check on the other two organs. Nonetheless, on the other hand, Dicey completely misunderstood the real nature of the French droit administratif. He thought that this system was designed to protect officials, but the later studies revealed that in certain respects it was more effective in controlling the administration than the common law system. The reality is that French Conseil d’ Etat is widely admired and has served as model for other countries as well as for court of justice for European communities[x]. He also did not realise the need for codification of laws which could lead to more discretion, thus hampering Rule of Law.
The concept of Rule of Law permeates into the Indian Legal System through the Constitution. Part III of the Constitution of India acts as a restraint on the various organs exercising powers. While conferring the rights on the citizens, it imposes restrictions on the power that can be exercised. Under our Constitution, we have adopted the British System of Rule of Law. Absence of arbitrary power is the first essential of Rule of Law upon which our whole constitutional system is based.[xi] Governance must be by rule, and not arbitrary, vague and fanciful.[xii] Under our Constitution, the Rule of Law pervades over the entire field of administration and every organ of the state is regulated by Rule of Law. The concept of Rule of Law cannot be upheld in spirit and letter if the instrumentalities of the state are not charged with the duty of discharging their function in a fair and just manner.[xiii]
The Indian Judiciary has played an instrumental role in shaping Rule of Law in India. By adopting a positive approach and dynamically interpreting the constitutional provisions, the courts have ensured that the Rule of Law and respect for citizens’ rights do not remain only on paper but are incorporated in spirit too.
In the case of A.D.M. Jabalpur v. Shiv Kant Shukla[xiv], KHANNA, J. observed:
“Rule of Law is the antithesis of arbitrariness……..Rule of Law is now the accepted norm of all civilized societies……Everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order.”
In Bachhan Singh v. State of Punjab[xv], it was held that the Rule of Law has three basic and fundamental assumptions. They are:-
1) Law making must be essentially in the hands of a democratically elected legislature;
2) Even in the hands of the democratically elected legislature, there should not be unfettered legislative power; and
3) There must be independent judiciary to protect the citizens against excesses of executive and legislative power.
The first case which stirred a debate about Rule of Law was Shankari Prasad v. Union of India[xvi], where the question of amendability of fundamental rights arose. The question lingered and after witnessing the game play between the government and the judiciary, the issue was finally settled in the case of Kesavananda Bharati v. State of Kerala[xvii]. In this case, the Hon’ble Supreme Court held that the Rule of Law is the “basic structure” of the Constitution. The Hon’ble Supreme Court by majority overruled the decision given in Golak Nath’s case[xviii] and held that Parliament has wide powers of amending the Constitution and it extends to all the Articles, but the amending power is not unlimited and does not include the power to destroy or abrogate the basic feature or framework of the Constitution. There are implied limitations on the power of amendment under Art 368, which are imposed by Rule of Law. Within these limits Parliament can amend every Article of the Constitution. Justice H R Khanna played a vital role in preserving the Rule of law although he concurred with the majority decision.
In the case of Indira Nehru Gandhi v. Raj Narayan[xix], the Apex Court held that Rule of Law embodied in Article 14 of the Constitution is the “basic feature” of the Indian Constitution and hence it cannot be destroyed even by an amendment of the Constitution under Article 368 of the Constitution. Article 329-A was inserted in the Constitution under 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 was clearly applicable only to the then current prime minister and was an amendment to benefit only one individual. It was decided that the law of the land is supreme and must prevail over the will of one person.
In the case of Maneka Gandhi v. Union of India[xx], the Hon’ble Supreme Court established the Rule of Law that no person can be deprived of his life and personal liberty except procedure establish by law under Article 21 of the Constitution. Thus, Article 21 requires the following conditions to be fulfilled before a person is deprived to his life and liberty:
- That there must be a valid law.
- The law must provide procedure.
- The procedure must be just, fair and reasonable.
- The law must satisfy the requirement of Article 14 and 19.
The Supreme Court observed in Som Raj v. State of Haryana [xxi], that the absence of arbitrary power is the primary postulate of Rule of Law upon which the whole constitutional edifice is dependant. Discretion being exercised without any rule is a concept which is antithesis of the concept.
Another facet of Rule of Law in India is the independence of judiciary and power to judicial review. The Supreme Court in the case Union of India v. Raghubir Singh[xxii] that it is not a matter of doubt that a considerable degree of principles that govern the lives of the people and regulate the State functions flows from the decision of the superior courts. Rule of Law as has been discussed postulates control on power. Judicial review is an effective mechanism to ensure checks and balances in the system. Thus, any provision which takes away the right to judicial review is seen to go against the very fibre of Rule of Law. In the case of S.P. Sampath Kumar v. Union of India[xxiii], the courts have reiterated that judicial review is part of the basic structure of the Constitution.
In India, the meaning of rule of law has been expanded. It is regarded as a part of the basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by Parliament. The ideals of the Constitution- liberty, equality and fraternity have been enshrined in the preamble. Constitution makes the supreme law of the land and every law enacted should be in conformity to it. Any violation makes the law ultra vires. Rule of Law is also reflected in the independence of the judiciary.
The case of ADM Jabalpur Shivakant Shukla[xxiv] is one of the most important cases when it comes to rule of law. In this case, the question before the court was ‘whether there was any rule of law in India apart from Article 21’. This was in the context of suspension of enforcement of Articles 14, 21 and 22 during the proclamation of an emergency. The answer of the majority of the bench was in negative for the question of law. However Justice H.R. Khanna dissented from the majority opinion and observed that “Even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning…” The majority judges could not take a firm stand and interpreted the supremacy of law to mean supremacy of the law of the land and not supremacy of the constitutional spirit which is rule of law.
The question of encroachment of the judiciary over the other organs of the government in the name of activism always persists. The extent to which the courts can limit the exercise of other organs is to be pondered upon. The principle of Rule of Law does not also allow the self- conferment of power by the judiciary. The court’s interpretation and judgments are never solely adequate to ensure the observance of Rule of Law. Corruption, fake encounters, unfair policies all undermine rule of law.[xxv]
The main characteristic of the concept of rule of law is ‘equality’. This itself has been criticized widely. The government possesses the inherent authority to act purely on its own volition and without being subjected to any checks or limitations. Total equality is possible to prevail in general conditions, not only in India but in any country for that matter. For e.g.: no case can be filed against the bureaucrats and diplomats in India and the privileges enjoyed by the members of parliament with respect to legal actions against them.
The Hon’ble Supreme Court of India has expanded Article 21 to include in its broad interpretation right to bail, the right to a speedy trial, immunity against cruel and inhuman punishment, the right to dignified treatment in custodial institutions, the right to legal aid in criminal proceedings and above all the right to live with basic human dignity. It has also established new doctrines, such as, public trust doctrine, doctrine of promissory estoppel, doctrine of absolute liability, and host of principles such as polluter’s pay principle, etc. and offered guidelines in cases where no there were no legislations, i.e, sexual harassment at work places, and most importantly laid down the foundation of Public Interest Litigation. The vast jurisprudence that has been developed by the courts is to ensure that state is bound by its welfare functions and the rights of none are abridged by a tyrant hand.
Any act, inaction or abuse of such powers by one organ calls for interference of the other organ. The judges are not to act upon the laws which are against humanity or based on unreasonable classification or are arbitrary in nature or are against the moral principles; even if such laws are passed by the Parliament. They are to bring in interpretations of laws that are in tune with the principles enshrined in the Constitution. However, there have been instances of the judiciary being marred by corruption and to tackle judicial corruption, it is needed to keep judiciary out of the influence and control of the Legislative or executive. There is also the need for a speedy justice delivery system.
Similarly, Parliament is to keep in mind that the laws made by it are not against the rule of law, or against the Constitution or public moral and humanity. It should also from time to time keep an eye on the social changes and scientific advancement so that the laws meet the demands of the time. Article 105(2) of the Constitution must be amended because it promotes and protects the corruption or Horse trading in Parliament which is against the notion of democracy and Rule of Law. The Executive should also refrain from executing the laws which are against natural justice or in violation of the rights, liberties and freedom of common man or is against the state or constitution in particular. This is the doctrine of Self -Restraint, whereby, all the organs try to fulfil the aspirations of the nation and uphold the rule of law, without interfering into the domain of the other.
The Constitution must in all circumstances be considered supreme, and the laws made by the legislature should pass the test of reasonableness and the objectives of the Constitution. If any organ of the Government crosses its limits or encroaches upon the powers of the other organs or exceeds its jurisdiction, the act shall be considered as invalid and any abuse of law or any action shall be termed as void ab initio; and the principle of checks and balance will come into play to ensure the sustenance of the principle of Rule of Law.
Edited by Kudrat Agrawal
 Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545; Air India v. Nergesh Meerza, (1981) 4 SCC 335; D.K. Basu v. State of West Bengal, (1997) 1 SCC 416; PUCL v. Union of India, (1997) 3 SCC 433
[i] Dicey, A.V., THE LAW OF THE CONSTITUTION 198 (8th Ed.)
[ii] The overarching orientation of Athenians was toward the polis, the political community. Every male citizen over thirty years of age, of whatever class or wealth, was eligible to serve (for pay) on juries that decided legal cases; they also served as magistrates, on the governing Council (with a rotating head), and on legislative assemblies, with positions filled by lot. To insure accountability, magistrates presiding over cases could be charged with violations of the law by complaints from private citizens. Owing to these characteristics, “democracy was synonymous for the Athenians with the ‘rule of law.’” Athens did not have a class of legal professionals or state officials who monopolized the production of law or the delivery of legal services. Law was – literally – the product of the activities of its citizens. Equality before the law was an important value in their system.
[iii] Cicero, THE REPUBLIC AND THE LAWS, translated by Niall Rudd (Oxford: Oxford Univ. Press 1998), The Republic, Book Two, 48, p. 50.
[iv] Kern, KINGSHIP AND LAW IN THE MIDDLE AGES, p. 182.
[v] William H. Dunham, “MAGNA CARTA AND BRITISH CONSTITUTIONALISM,” in The Great Charter, Introduction by Erwin N. Griswold (New York: Pantheon 1965) p. 26.
[vi] Locke, SECOND TREATISE OF GOVERNMENT, p. 47 (ss. 88–89); p. 65–66 (ss. 123–24).
[vii] Ibid., p. 52 (ss. 95–96).
[viii] Supra Note 1.
[ix] Jain & Jain, PRINCIPLES OF ADMINISTRATIVE LAW, 2013 (6th Ed.)
[x] Brown & Bell, FRENCH ADMINISTRATIVE LAW, 4th Ed.
[xi] S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427; Godavarman v. Ashok Khot, (2006) 5 SCC 1.
[xii] John Wilkes, in Re, (1770) 4 Burr 2528.
[xiii] A.K. Kraipak v. Union of India, AIR 1970 SC 150.
[xiv] AIR 1976 SC 1283.
[xv] AIR 1980 SC 898.
[xvi] AIR 1951 SC 455.
[xvii] AIR 1973 SC 1461.
[xviii] 1967 SCR (2) 762.
[xix] 1975 SCC (2) 159.
[xx] AIR 1978 SC 597.
[xxi] 1990 SCR (1) 535.
[xxii] 1989 SCR (3) 316.
[xxiii] 1987 SCR (3) 233.
[xxiv] Supra Note 14.
[xxv] P V Narasimha Rao v. State, AIR 1998 SC 2120; Indra Sahwney v. Union of India, AIR 1993 SC 477.