Rule of law and
Indian
constitution
[Link]
Dept. of Law
Subject: Constitutional Values
CUTN
INTRODUCTION
• the State is governed by the law and not by the ruler or
the representatives of the people.
• Rule of Law would be in the Grundnorm
• If a representative is governed by the laws arising from
the Grundnorm then his powers would be limited by
law.
• The law is king but the king is not the law
• No rich or poor or even a ruler is above the law.
• Rule of law is a necessity in order to have a disciplined
and organized community.
• The rule of law principle protects the individuals from
the arbitrary actions of the Government’s authorities.
Origin of the Rule of Law
• Pioneer - Edward Coke
• the king must be working under the God and law
• the Law is supreme over the executive
• “La principe de Legalite” is a French phase from which the
concept of Rule of Law was derived (principle of legality).
• Rule of Law has been traced back to the Ancient Romans and
this concept has been supported by many medieval
philosophers in Europe like Locke, Hobbs and Rousseau.
• In India, Rule of Law can be traced back to the Upanishads.
• It states that the law is the king of the kings.
• No one is higher than the law - Not even the king.
• Rule of law is much higher as well as powerful than the kings.
• The Indian philosopher Chanakya was of the opinion that the
King must be governed by the law.
• But the entire credit for the development of the concept of
Rule of Law goes to Professor A.V Dicey who in his book,
“Introduction to the study of law of the
Constitution” which was published in the year 1885.
• He tried developing the Rule of Law concept. Administrative
law is mainly based on this concept.
• Thus the concept of Rule of Law is one of the most important
aspects of modern legal systems and it purely says that
“howsoever high you maybe, the law is above you”.
• No human being is above or higher than the supremacy of
law.
DICEY’S PERCEPTION TO
RULE OF LAW
• Rule of law is a very important principle which is regulated in
the common law countries. But these common law derived
countries modern laws have denied few of the important
parts of the rule of law.
• This was stated by Dicey at the beginning of the
19th century.
• Dicey stated Rule of Law as, “absolute supremacy or
predominance of regular law as opposed to the influence of
arbitrary power and excludes the existence of prerogative or
even wide discretionary power on the park of government”.
• According to Dicey he stated that whenever there occurs a
discretion, there would be room for arbitrariness which would
lead to the insecurity of legal freedom of the citizens.
A.V. Dicey proposed in his theory the three important pillars
based on the concept of Rule of Law, that a government must be
governed by the principles of the law and not of the men.
The three pillars are:
1) SUPREMACY OF LAW
The basic understanding of rule of law is that the law rules over
the people including those people who are involved in the
administering of law.
Reasons must be given by the law makers that are justified
under the law while exercising the power to make and
administer the law.
2) EQUALITY BEFORE THE LAW
The principle of equality of law is to make sure that the law is
not only administered but is also enforced in the same manner.
To only have a fair law is not enough.
That fair law must be applied in a just manner as well.
The Supremacy of law checks over the Government and it’s
administrating and making of the law.
People of different sex, religion, case, etc. cannot be
discriminated under the law.
The law must be equal to all and this has been given under
Article 14 of the Constitution of India.
It has also been codified in the Universal Declaration of Human
Rights under the preamble.
3) PREDOMINANCE OF LEGAL SPIRIT
Dicey believed that just by including the above two principles
would not be insufficient to be included in the Constitution of
the country or even the other laws for the state which are being
followed.
According to Dicey there must be some kind of enforcing
authority that could enforce the rule of law.
Dicey believed that such enforcing authority would be found in
the courts.
The courts would be able to enforce the rule of law and make
impartial decisions that are free from any external influence.
Thus it becomes one of the important pillars of rule of law.
RULE OF LAW IN INDIA
The concept of Rule of Law was often brought up to convey to
the Administration that it should function according to what
the law says and must not exercise any arbitrary powers.
The Indian Judiciary has played an important role in determining
Rule of Law in India.
By interpreting the constitutional provisions and taking a
positive approach, the courts ensure that Rule of Law would not
only be spoken about on paper but would be executed too.
• In A.D.M. Jabalpur v. Shiv Kant Shukla (1976), KHANNA, J. has
stated that Rule of law is the opposite of arbitrariness. Rule
of Law is an accepted norm of all civilized societies. It is
identified everywhere with the liberty of the individual.
• As stated in the case of Bachan Singh v. State of Punjab
(1980), rule of law forms one of the basic features of the
Constitution and an essential element of this concept is that
the law must not be irrational or arbitrary and it must satisfy
the test of reason.
Thank You