rule of law in india

Rule of law in India

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Rule of law in India

There was a time when the world was ruled by the maxim “ Rex Non-Potest Peccare.” This translates into “the king can do no wrong”. Kings were above everything and did whatever they felt right. Good kings like The Great Ashok and The Great Akbar did very good to society while bad rulers totally demolished the society. It is safe to say that those days are behind us. Presently, the world is ruled by ‘Rule of Law’. In this article, we look at the concept of Rule of law in India.

History

The expression ‘Rule of Law’ has been derived from the French phrase ‘la principle de legalite’, i.e. a Government based on the principles of law. It was expounded for the first time by Sri Edward Coke he said that the king must be under God and law and thus vindicated the supremacy of law over the pretensions of the executives. Later, Professor A.V. Dicey in 1885 published his classic book “The law and the Constitution” and further developed Justice Coke’s theory.

History of Rule of law in India can be traced back to Upanishad where it says that Law is the king of kings. Nothing is higher than law. to sum up, Law is all powerful and is above kings.

Dicey principles of Rule of law

A.V. Dicey in his book “the law and the constitution” propounded 3 principles of Rule of law-

  1. Supremacy of law- As per Dicey Rule of law means the absolute supremacy of law and ‘no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts of the land. No one is above law and everyone is bound to obey the law. It excludes the existence of arbitrariness or even wide discretionary power of the government.
  2. Equality before Law- Dicey stated that there must be equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts. In his work, he heavily criticized the French legal system of droit administrative which differentiated between civil servants from ordinary citizens.
  3. Judge-made constitution: unwritten constitution – Dicey stated that in many countries rights to personal liberty, freedom from preventive detention, freedom to hold public meetings are guaranteed by a written constitution. However, in England, these rights are the result of the judicial decisions in concrete cases. He opined that these rights are more secured and more enforceable this way.

Rule of law in India

Arguably, Rule of law in India is not expressly mentioned in Indian Constitution. However, Rule of law in India is guaranteed through preamble, fundamentals rights and judicial review. Our preamble clearly states principle of rule of law by the words “objectives of social, economic and political justice, equality of status an opportunity, and fraternity and dignity of individuals in India.

In India, we have supremacy of the constitution. Every organ of the government derive its power from the constitution and should act in accordance with the constitution. These concepts are enshrined in Part III as fundamental rights. Powers of every organ are balanced by the doctrine of check and balance.

In the landmark case of Keshavanand Bharti vs Union of India.[1], it was held that legislature can not amend the basic structure of the constitution. In Indira Gandhi vs Raj Narain[2], Rule of law was held to be the basic structure of the constitution. Further, expanding the concept of Rule of law in India, in the case of R.D.shettly vs International Airport Authority of India[3], The Supreme Court held that government should act in a reasonable manner. Moreover, the state must be based on rational and relevant principles. However, the court never ruled out the existence of discretionary power completely. There is a subtle difference between arbitrary power and discretionary power. In presence of arbitrariness or unreasonable, there is a complete denial of rule of law.[4]

Conclusion

Hence, Rule of law in India is enforced and protected by the constitution. Every organ of the government somehow checks and balance the other organs. In absence of control, the possibility of arbitrariness increases exponentially. As justice Khanna observed, Rule of law is the antithesis of arbitrariness. Therefore, to maintain the status quo and also for further development of law and society, rule of law is a must.

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[1] AIR 1973 SC 1461

[2] AIR 1975 SC 2299.

[3]  1979 AIR 1628

[4] Bachan Singh vs State of Punjab


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