The Rule of Law 2020

    Rule of Law
    Rule of Law

    Intro

    The ‘Rule of Law’ is one of the basic principles of the British Constitution and it has been a part of the Indian (and British India) judiciary since its inception. This concept is established and well engrave in most of the world’s constitutions. It plays an important role in the administration of the country. It provides protection to the people against the arbitrary action of the administrative authorities.

    The Rule of law is the basic foundation on which the unwritten Constitution of England is based. Although the origin of this concept can be traced to Chief Justice Sir Edward Coke, it was Prof. A. V. Dicey who developed this theory in its modern form. In his monumental treatise, The Law and the Constitution (1885), Dicey submitted that the rule of law is the most fundamental principle of the English legal system.

    According to Dicey, the expression “rule of law” signifies three inter-related concepts, namely, –

    1. The supremacy of the law.
    2. Equality before the law.
    3. Predominance of the legal spirit.

    The Supremacy of the Law

    The supremacy of the law is the first fundamental principle of the rule of law. It signifies that in a country, it is the law that prevails as opposed to any wide discriminatory or arbitrary power in the hands of those who govern a country. According to Dicey, if any discretion is given to an administrative authority then individual freedom is in danger and this can be fatal to the supremacy of the law.

    As per this principle, a person can be punished or penalised only for a breach of the law, and for nothing else. Applying this principle, Dicey maintained that no man can be detained or arrested or imprisoned except by the due process of law and for a breach of law proved against him in the ordinary manner in the ordinary courts of the land.

    Equality before the law

    This expression, according to Dicey, means that all classes of persons are subject to the same law. In his view, all persons, howsoever high or low, are governed by one and the same law.

    Dicey, finding faults in the French system of droit administrative, pointed out that all persons, whether private individuals or government officials, should not only be subject to the same law, but should also be answerable to the same set of courts.

    Predominance of the legal spirit

    Dicey strongly believed that the law courts should be the protectors and guarantors of the liberty of the individual. He was of the view that the citizens of a country are better protected by the courts than by a mere document declaring the rights of individuals like the Constitution of the country.

    He feels that such rights remain only paper declarations, which can be ignored, curtailed and trampled upon by the government in power unless there is an effective judiciary which enforces such rights. He pointed out that England does not have a written Constitution containing any elaborate list of fundamental rights. Nevertheless, the citizens of the country are fully protected by the unwritten Constitution, which is a judge-made Constitution.

    Application of the Rule of Law in Indian Context

    • The founding fathers of our Constitution have drafted the Constitution of Indian making sure that all aspects of the principles of Rule of Law is covered in it.
    • The Preamble to the Constitution articulates the triple concepts of justice, liberty and equality.
    • Fundamental rights are guaranteed by the constitution and the right to enforce them has itself been made a fundamental right. The Supreme Court and the High Courts are fully armed by Article 32 and Article 226, respectively to protect the individual against all forms of arbitrary action of the government.
    • In India, it is the Constitution that is supreme, and all the branches of the government the executive, the legislature and the judiciary are subject to it.
    • The doctrine of judicial review has been accepted in totality and judicial activism has been in the forefront to protect the individual against arbitrary acts of the state.
    • Article 21 states that no person can be deprived of his life or personal liberty except according to the procedure established by law.
    • Article 20 ensures that full protection is given by the Constitution against ex post facto laws, double jeopardy and self-incrimination.
    • Likewise, Article 14 guarantees equality before the law and equal protection of the law to all persons in India.