RULE OF LAW

[Vol 3/Issue 1/ April 2017]

[ISSN 2394-9295]

ABSTRACT

Plato wrote, “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if the law is a master of the government and the government its slave, then the men enjoy all the blessings that the gods shower on the state.” Likewise, Aristotle wrote, “the law should govern and those in power should be servants of the laws.”

The basic concept of Rule of Law is that a country should not be governed by any one person, or a nominated representative elected of Rule of Law is an old and ancient ideal. Greek philosophers such as Plato and Aristotle discussed by the people, but by the supreme law of the land. The concept of Rule of Law was incorporated by A.V. Dicey and has been widely accepted by many countries today.

This short comment discusses the applicability of the doctrine of Rule of Law with special emphasis on India. It discusses the merits and exceptions of the said doctrine and mentions the latest developments and important cases related to Rule of Law in India.

INTRODUCTION

One of the basic principles of the English Constitution is Rule of Law. This doctrine is accepted in the US as well as in Indian Constitution. The entire basis of administrative law is the doctrine of Rule of Law.

The concept of Rule of Law is that no man is above the law and that every person, whatever be his rank or conditions, is subject to the jurisdiction of ordinary courts. A country that enshrines Rule of Law would be the one where the basic or core law from which all other laws derive its authority is the supreme authority of the state.

The origins of Rule of Law theory can be traced back to the Ancient Romans during the formation of the first republic; it has since been championed by several medieval thinkers in Europe such as Hobbs, Locke and Rousseau through the Social Contract Theory. Indian philosophers such as Chanakya also adopted the Rule of Law theory in his own way by maintaining that the King should be governed by the word of law. The formal origin of the word is attributed to Sir Edward Coke, and is derived from the French phrase ‘La Principe de Legalite’ which literally translates to the ‘Principle of Legality.’ However, the firm basis of the theory of Rule of Law was expounded by A.V. Dicey and his theory of the Rule of Law remains the most popular. Dicey developed this theory of Coke in his classic work The Law and the Constitution published in the year 1885.^[1]

According to Dicey, the Rule of Law is one of the fundamental principles of the English legal system. He attributed the following three meanings to the said doctrine:

1. Absence of arbitrary power of Supremacy of law: It means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary or wide discretionary power. It excludes the existence of arbitrariness on the part of the government. In other words, “a man may be punished for breach of law, but can be punished for nothing else.”^[2]
2. Equality before law: It means that there must be equality before the law or equal subjection of all classes to the ordinary law of the land administered by the ordinary courts. This principle of law seeks to ensure that the law is administered and enforced in a just manner. It is not enough to have a fair law but the law must be applied in a just manner as well. The law must not discriminate on the grounds of race, religion, caste, sex, etc.
3. Predominance of legal spirit: It means that the source of the rights (rights such as the right to personal liberty, freedom from arrest, freedom to hold public meetings, etc.) of individuals is not the written Constitution but the rules as defined and enforced by the courts. Such rules are the result of judicial decisions in concrete cases which have actually arisen between the parties.

MERITS OF DOCTRINE OF RULE OF LAW

Dicey’s Rule of Law has its own advantages and disadvantages. It proved to be an effective and powerful weapon in keeping administrative authorities within their limits. This doctrine of Rule of Law acts as a constitutional safeguard where the first principle of absence of arbitrary power opposes arbitrary and wide discretion of governmental authorities which have the tendency to interfere with the rights and duties of private individuals, while the second principle promotes equality before law and equal subjection of all classes to the law.

EXCEPTIONS TO RULE OF LAW

Rule of Law means that no person is above the law of the land no matter what position he holds in the society; that is, whether a middle class man murders someone or a politician murders someone; they would both be subject to the same set of laws irrespective of which strata of society they belong to or how influential or moneyed they are. However, this is not an absolute rule and there are certain exceptions to it:

Firstly, equality before law does not mean that the powers of a private citizen are the same as the powers conferred on a public official. For example, a police officer has the power to arrest while no private person has this power. Having said that, this does not mean these powers can be abused. They have to be clearly defined by law or they would violate the principle of Rule of Law. Any abuse of authority by public officials has to be punished just like any other illegal activity, to reinstate the concept of supremacy of the law of the land.

Secondly, certain classes of people are governed by certain special laws, like military personnel are controlled by military laws. This is not a violation of Rule of Law. Another example is Article 361 of the Indian Constitution which provides for immunity to the President of India and the State Governors for any act done by them in the exercise and performance of the powers and duties conferred on them. Also, the President of India and the State Governors cannot be arrested, imprisoned or instated for any criminal proceedings during the term of their office.

Thirdly, ministers, bureaucrats and other administrative and executive bodies are given a very wide ambit of discretionary powers because most of the legislation which takes place in today’s time is delegated legislation. When Dicey had given the concept of Rule of Law, delegated legislation did not exist. Thus, with the rise in delegated legislation, this exception also came into being.

Fourthly, certain members of the society like lawyers, doctors, chartered accountants, etc. are governed by certain special laws that do not apply to ordinary citizens, like chartered accountants are governed by the rules of The Institute of Chartered Accountants of India (ICAI) and lawyers are governed by the rules set by the Bar Council of India. However, this does not mean that other general laws would not apply to them at all. For example, a lawyer would still be punished for murder, just like any other ordinary citizen of the country.

RULE OF LAW IN INDIA

A.V. Dicey’s three meanings of Rule of Law are: Absence of Arbitrary Power or Supremacy of Law, Equality before Law and Predominance of Legal Spirit. The first and second aspects apply to the Indian legal system but the third aspect does not; as the Constitution of India is the source of all rights and duties conferred on private individuals; the Constitution is the supreme law of the land and all laws made have to be in accordance with it.

Article 14 of the Indian Constitution talks about ‘equality before law’, ‘equal protection of law’ and ‘predominance of law’. The Rule of Law embodied in Article 14 is the “basic feature” of the Constitution of India and thus, it cannot be destroyed or amended even by Article 368 of the Constitution of India. ^[3]

The phrase ‘equality before law’ is of English origin and aims at establishing ‘equality of status’ in the eyes of law. Equality before law seems to be a negative concept as it implies the absence of any special privilege by reason of birth, creed or the like in favour of any individual and the equal subjection of all classes of people of the ordinary law.

According to Article 14, the guarantee of equal protection of law has been interpreted to mean subjection of all persons in similar circumstances to the same law both in privilege and liabilities; this has been iterated in the case of Lindsley v Natural Carbonic Gas Company.^[4]

Thus, the rule is that the like should be treated alike and not that unlike should be treated alike^[5]

The expressions ‘equality before law’ and ‘equal protection of law’ seem to be identical but they do not convey the same meaning. Equality before law is a negative concept while equal protection of law is a positive concept. However, the dominant idea collective to both of them is of equal justice as was observed in the case of Sheoshankar v State of MP^[6].

Chief Justice Patanjali Sastri observed that the second expression is a corollary of the first and it is arduous to think of a situation where violation of equal protection of laws is not a violation of equality before law, this was observed in the case of State of West Bengal v Anwar Ali Sarkar^[7]

Article 14 permits classification but prohibits class legislation. Class legislation means making improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number of people, all of whom stand in the same relation to the privilege granted and no justification can be given for the inclusion of one and the exclusion of the other. The classification must not be ‘arbitrary, artificial or evasive’ but must be based on real and substantial distinction, wherein, a just and reasonable relation to the object sought to be achieved by the legislation.

This Article is an anti-thesis to arbitrariness, that is, the law should promote equality.

As mentioned above, classification is validly permitted and for the classification to be reasonable, the following conditions have to be fulfilled:

1. The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others that are left out of the group.
2. There should be intelligible differentia based on reasonable nexus with the object being served to make discriminatory law.

The fundamentals of natural justice are also embodied in Dicey’s Rule of Law. They are:

1. Nemo Judex In Causa Sua – No individual can judge his own case.
2. Audi Altarem Partem – Every party has the right to be heard.
3. Wednesbury Principle – This principle says that the Doctrine of Proportionality has to be secured, that is, the discretionary powers given to authorities should only be used in proportion, an administrative authority can only be used to the given extent. Any penalty disproportionate to the gravity of the misconduct is violative of Article 14.^[8]

Article 14 seeks to secure the fundamentals of natural justice as it embodies Rule of Law.

LEADING CASE LAWS ON THE CONCEPT OF RULE OF LAW IN INDIA

There are mainly three leading case laws on the concept of Rule of Law in India; a study of Kesavananda Bharti v State of Kerala^[9], Indira Gandhi v Raj Narain^[10] and the Habeas Corpus Case^[11] which provides for the Indian judicial thought on the concept of Rule of Law which has evolved well over 25 years in India.

In the Habeas Corpus Case, it was recognised that the concept of Rule of Law can be used as a legal concept in India. In this case, an attempt was made to challenge the retention orders during emergency on the ground that such an order was violative of the principle of Rule of Law.

In Kesavananda Bharti’s case, Rule of Law was considered as an ‘aspect of the doctrine of basic structure of Constitution, which even the plenary power of the Parliament cannot reach to amend.’

In Indira Gandhi v Raj Narain, Clause 4 of Article 329A was inserted in the Constitution by the 39^th Amendment Act, 1975 to provide immunity to the office of the Prime Minister from any kind of judicial review for the election dispute. This was invalidated by the Supreme Court. It was held that since the validation of the Prime Minister’s election was not applicable by any law, therefore, it offends the Rule of Law. It was observed that the jurisdiction of Supreme Court to try a case on merit cannot be taken away without injury to the basic postulate of the Rule of Law and of justice in a democratic and constitutional political structure, that is, judicial review was also being suppressed.

CONCLUSION

The concept of Rule of Law has developed many facets over the years, some negative and some positive. Some of the recent decisions of the Supreme Court has laid emphasis on the positive aspect.

In Sheela Barse v State of Maharashtra^[12], the Court insisted on ‘fairness’ for women in police lockup and drafted guidelines for the protection of female prisoners.

In Veena Seth v State of Bihar^[13], the reach of Rule of Law was extended to the poor and down-trodden. It was held that Rule of Law does not merely exist for those who have the means to fight for their right and those who seek to perpetuate a status quo in the society which allows them to exploit a large section of the community but also for those who cannot afford to fight for their rights that are nonetheless entitled to them.

Thus, the concept of Rule of Law promotes ‘equality among equals and inequality among unequals’. This forms the basis of all modern laws, without which our society cannot function.

REFERENCES

1. http://www.nber.org/papers/w10750 (last visited on July 10, 2017) ↑
2. A.V. Dicey, The Law and the Constitution (page 202-3, 10^th edition) ↑
3. Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 2299 ↑
4. (1910) 220 US 61 ↑
5. Dr V.N. Shukla, Constitution of India (page 27, 5^th Edition) ↑
6. AIR 1951 Nagpur 53 ↑
7. AIR 1952 SC 75 ↑
8. Bhagatram v State of Himachal Pradesh AIR 1983 SC 454 ↑
9. AIR 1973 SC 1461 ↑
10. AIR 1975 SC 2299 ↑
11. AIR 1976 SC 1207 ↑
12. AIR 1983 SC 378 ↑
13. AIR 1983 SC 339 ↑