RULE OF LAW: AN INSIGHT OF INDIAN CONSTITUTION
Author : Mansi Rawat.
Student, B.B.A.,LL.B., II year, FIMT School of Law, GGSIPU
INTRODUCTION
According to the conception of ‘The Rule of Law’, the state isn't ruled by the ruler or the nominative representatives of the peoples however ruled by the rule of law. A rustic that follows the rule of law would be one whereby the essential and core law, from wherever all alternative law derives its authority, is that the expert of the state. The representatives of the republic area unit ruled by the laws derived out of the essential and core law and their powers area unit restricted by the law. Basically, in line with the rule of law, the king isn't the law however the law is king.
The origin of the Rule of Law theory may be tracked back to the traditional Romans throughout the formation of the primary republic, it's since been championed by many medieval thinkers in Europe like Hobbs, Locke, and Rousseau through the accord theory. Indian philosophers like Chanakya even have espoused the rule of law theory in their own approach, by maintaining that the king ought to be ruled by the word of law. However the formal origin of the word is by Sir Edward Coke, and its American state rived from the French part ‘la island de legalite’ which implies the principle of lawfulness. The firm basis for the Rule of Law theory was propounded by A.V. dodgy and his theory on the rule of law remains the foremost fashionable. Dicey’s theory has 3 pillars supported the construct that “a government ought to be supported principles of law and not of men”, these are:
SUPREMACY OF LAW
This has forever been the essential understanding of the rule of law that propounds that the law rules over all individuals together with the persons administering the law. The lawmakers got to provide reasons that may be even underneath the law whereas physical exertion their powers to create and administer the law.
EQUALITY BEFORE LAW
While the principle of ascendancy of law sets in situ cheques and balances over the govt on creating and administering the law, the principle of equality before the law seeks to make sure that the law is run and implemented in an exceedingly simply manner.it is not enough to own a good law however the law should be applied in an exceedingly simply manner still. The law cannot discriminate between individuals in matters of sex, religion, race etc. this idea of the rule of law has been written within the Indian Constitution underneath Article fourteen and therefore the Universal Declaration of Human Rights underneath the Preamble and Article seven.
PREDOMINANCE OF LEGAL SPIRIT
In together with this as a demand for the Rule of Law, Dicey’s belief was that it absolutely was shy to easily embody the on top of 2 principles within the constitution of the country or in its alternative laws for the state to be one within which the principles within the constitution of the country or in its alternative laws for the state to be one within which the principles of rule of law area unit being followed. There should be an implementing authority and dodgy believed that this authority may well be found within the courts. The courts area unit the enforcers of the rule of law and that they should be each impartial and free from all external influences. Therefore the liberty of the judicial becomes a very important pillar to the rule of law.
In fashionable language the rule of law may be understood as a system that has safeguards against official irresponsibility, prevents disorder and permit individuals to arrange the legal consequences of their actions.
APPLICATION OF RULE OF LAW IN INDIA
IN THEORY
Indian adopted the Common Law System of Justice delivery that owes its origins to British Jurisprudence, the idea of that is that the rule of law. Unsafe splendidly maintained that the Englishman doesn't would like jurisprudence or any variety of written law to stay checks on the govt however that the rule of law and concept would be enough to make sure the absence of government flightiness. Whereas Bharat additionally accepts and follows the idea of concept, there are a unit formal and written laws to make sure compliance.
The Constitution of INDIA intended for India to be a rustic ruled by the rule of law. It provides that the constitution shall be the Supreme power within the land and also the legislative and also the government derive their authority from the constitution. Any law that's created by the legislative assembly should be in conformity with the represent failing that it'll be declared invalid, this can be provided for underneath Article thirteen(1). Article twenty one provides an additional check against arbitrary government action by stating that not a soul shall be empty his life or liberty except in accordance with the procedure with the procedure established by law.
Article fourteen ensures that each one voters area unit equal which not a soul shall be discriminated on the idea of sex, religion, race or place of birth, finally, it ensures that there's a separation of power between the 3 wings of the govt and also the government and also the legislative assembly don't have any influence on the judiciary. By these strategies, the constitution fulfils all the wants of Dicey’s theory to be recognized as a rustic following the rule of law.
Apart from the constitutional provisions, the judicial selections have additionally contend a significant role within the understanding and development of rule of law in Bharat. The rule of law is considered a region of the fundamental structure of the constitution or and, so it can't be abrogated or destroyed even by the Parliament. In a number of the cases before the Supreme Court, Justice R.S. Pathak expressed that:
“It must be remembered that our entire constitutional system is founded on the Rule of Law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason”.[1]
In the ADM Jabalpur v. Shivkanth Shukla case, the question before the court was ‘whether there was any rule of law in Bharat excluding Article 21’. This was within the context of suspension of social control of Articles fourteen, twenty one and twenty two throughout the proclamation of an emergency. The solution to the bulk of the bench was in negative for the question of law. But, Justice H.R. Khanna dissented from the bulk opinion and discovered that:
“Even in absence of Article twenty one within the Constitution, the state has no power to deprive someone of his life and liberty while not the authority of law. while not such holiness of life and liberty, the excellence between a lawless society and one ruled by laws would stop to possess any meaning…Rule of Law is currently the accepted norm of all civilized societies”[2]
within the case of Keshvananda Bharti v. State of Kerala the Supreme Court command that the rule of law is a necessary a part of the fundamental structure of the constitution and per se can't be amended by any act of parliament, thereby showing however the law is superior to all or any alternative authority of men.
IN ACTUAL PRACTICE
Critiques have typically maintained that the rule of law in Bharat is just a theory with no usage. whereas it can't be denied that the country is one wherever corruption runs rampant and per 2012 World Justice Project knowledge, Bharat fares well on openness of presidency and democratic controls, within the class restricted government powers, that evaluates the checks on government, Bharat ranks thirty seventh of the ninety seven countries surveyed round the world, is initial among 5 in its region and comes in second out of twenty three lower-middle-income countries. However the rule of law that exists on paper doesn't invariably exist in follow. Once it involves procedural effectiveness, Bharat ranks 83rd and 96th globally[3].
In addition to the matter long-faced in Bharat thanks to corruption within the law creating and justice delivery systems, there additionally exists the matter of previous laws still being in situ. Bharat doesn't adopts a sunset clause in its laws and post- independence the Indian Independence Act only if all laws existing underneath the colonial rulers would still exist underneath the new system unless expressly revoked by the parliament.
While this did give the state with a firm basic system of laws, thereby preventing a state of affairs of disorder within the immediate aftermath of independence, a number of these laws were written to suit the surroundings of these time and that they become laborious to interpret within the current surroundings. This results in ambiguity and endless judicial proceeding in an effort to interpret the provisions.
While these issues persist it's necessary to notice that the constitutional mechanism has provided enough safeguards to make sure that the rule of law in some type can invariably persist. One in every of the foremost necessary factors tributary to the upkeep of the rule of law is that the activity of the courts within the interpretation of the law.
It is justly reiterated by the Supreme Court within the case UNION OF INDIA V. RAGHUBIR SINGH[4] that it's not a matter of doubt that a substantial degree of the superior courts.
Most magnificently within the case of Maeneka Gandhi v. Union of India[5] the court ensured that exercise of power in associate degree arbitrary manner by the govt. wouldn't infringe the rights of the folks and in Keshvananda Bharti case the court ensured that laws couldn't be created that primarily go against the Rule of Law by saying that the essential and basic structure couldn't be broken.
Apart from the due process of law, the constitutional mechanism in itself provides for the protection of the rule of law through the creation of observance agencies. Whereas there are various scams that have return to lightweight and therefore the justice delivery mechanism has been set in motion against the perpetrators.
The role of the Central Vigilance Commission and therefore the accountant and Auditor General within the exposure of their discrepancies is commendable and this shows however the law has provided for its own protection by fixing place multiple levels of safeguards that make sure that it'll be effective at some level. The commission of Republic of India, a constitutional body has conjointly been endeavor the task of guaranteeing free and honest elections with a point of potency.
CONCLUSION
In all matters like the protection of the rights of the folks, equal treatment before the law, protection against excessive whimsicality, the Constitution of Republic of India has provided enough mechanisms to make sure that the rule of law is followed.
Through its choices, the Courts have strived to strengthen these mechanisms and guarantee sleek justice delivery to any or all voters. Issues like non-current legislation and overcrowded courts square measure however little hindrances and bodies like the Law Commission of Republic of India work towards ironing out these issues with the aim of achieving a system wherever there aren't any barriers to the sleek operation of the rule of law.
References: [1] Suman Gupta and Ors. Vs. State Of J & K and Ors (1983) AIR 1 SC 1235 India [2] ADM Jabalpur v Shivkanth Shukla (1976) AIR SC 1207 India [3] Hariharan, Rule of law in India , LAWOCTOPUS, (Nov. 16 2014), https://www.lawctopus.com/academike/rule-of-law-in-india/#_edn9 [4] Union of India v Raghubir singh (1989) AIR 1933, (1989) SCR (3) 316 [5] Maenka Gandhi v Union Of India (1978) AIR 1 SC 597 Image Courtesy: www.legalserviceindia.com
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