RULE OF LAW

 JESURISPRUDENCE PHILOSOPHIES (RULE OF LAW)

JESURISPRUDENCE PHILOSOPHIES (RULE OF LAW)

Introduction

The idea of Rule of law isn't new to India. The roots can be followed back to the Upanishads Period. In advanced law also, the whole design of the Indian Constitution depends on the idea of law and order. The composers of the Constitution recognized the hypothesizes of law and order as propounded by Dicey and thought of it as a significant piece of vote based system. It was, thus, in the wellness and interest of construction that the establishing staffs of the Constitution gave it the due acknowledgment.

The doctrine of Rule of Law as enunciated by Dicey has been adopted and strictly incorporated in the Constitution of India. The three major pillars of the Constitution that are justice, liberty and equality are enshrined in the Preamble itself.

The Constitution of India is the supreme law of the land and other laws are required to be in conformity with the basic principles enshrined in it. Any law which is incorporated and is in violation of any provision of the Indian Constitution, specially, the fundamental rights, is declared null and void.

The idea of the Rule of Law is that the nation should be administered by the law of land or potentially not by the ruler or the selected delegates of individuals. The designers of the Constitution of India proposed that India be a nation represented by law and order. It gives that the constitution will be the preeminent force of the land Indian land. Albeit the other two wings-the administrative and the chief are free however they get their power from the constitution.

The basis of Indian democracy is the rule of law and that means the country has to have an independent judiciary. The judges based upon their merits are chosen, who can make decisions independent of the political wind that’s blowing within the nation.

Undeniably, the term ‘Rule of Law is nowhere defined in the Indian Constitution but the term is seldom used by the Indian judges in their pronouncements. Over the years, rule of law has been considered as one of the basic features of the Indian Constitution. Moreover, it can’t be amended even by the constitutional amendments. Rule of law is considered an integral component of good governance.

According to law and order, it is a compulsory prerequisite that individuals are represented by the acknowledged laws or rules rather than the choices that are subjectively taken by the rulers ( which can be chief, assembly or legal executive). For keeping the substance of law and order, it is fundamental for remember that the set guidelines are general and dynamic. They are known and certain. Also, they ought to be applied similarly to all people. Legitimate impediment on government is the fundamental trait of constitutionalism. Any organ isn't above law under the idea of Constitutionalism. The real powers are separated with laws established by one body and directed by another and for that, a free legal executive exists to outline laws.

Concept of Rule of Law

The concept of rule of law was first introduced by Sir Edward Coke, the Chief Justice in James I Reign.

The concept of rule of law is of prime importance since the very beginning of societies. Greek philosophers like Plato and Aristotle were in favor of the concept of rule of law around 350 BC. Plato was of the opinion that where the law is subjected to a fixed authority and doesn’t have its own, the collapse of the state is assured. Perhaps, if the law is the master of the government and the government is like its slave, then the situation is the opposite. It ensures fulfillment of promises and men enjoy all the blessings that the gods shower on all the humans. Aristotle also said, law should govern and those who are in power should be servants of the laws.

The Rule of Law has been gotten from the French expression 'la principe de legalite' which implies the standard of legitimate. This expression alludes to an administration that depends on the standards of law and not human rulers. One of the essential standards of the Constitution is law and order and this idea has been taken from the American Constitution.

The doctrine of rule of law forms the entire basis of Administrative law. As defined by Aristotle, the concept of rule of law is encapsulated in the ideas of justice, equity, fairness, and inclusiveness. The constitutional framers made an intricate chain of fundamental ideas that are incorporated in rule of law which further encloses equality before the law, equal treatment before the government, independence of judiciary, consistency, transparency, and accountability in administrative law.

Meaning of Rule of Law

To simply understand the meaning of rule of law, it means that no man or entity is above law. Also, every person is subject to the jurisdiction of ordinary courts of law irrespective of their caste, creed, color, position, and rank.

The term rule of law was coined in England and India has taken this concept. The concept of rule of law also prescribes that no person should be subjected to harsh or arbitrary treatment. The right to equality is seen under the prevailing circumstance. The word ‘law’ in rule of law means that whether he is a man or a society, he will not be governed by a man or ruler but by the laws. In other words, as per Article 13 of the Indian Constitution rule of law means law of the land. 

Black Law Dictionary defines rule of law as the legal principles of day-to-day application, approved by the governing bodies or authorities that are expressed in the form of logical propositions.

Postulates of Rule of Law

In 1885, the firm basis for the Rule of Law theory was expounded by Professor A. V. Dicey and his theory on the rule of law remains the most popular till date. The professor propounded three principles or postulates of the rule of law in his book - Law and the Constitution. As per A.V Dicey, for achieving supremacy of law, the below written three principles of postulates must be followed

1. Supremacy of law,

2. Equality before law 

3. The predominance of Legal Spirit

Supremacy of law: As indicated by the main hypothesize, law and order alludes to the absence of intervention or wide optional force in any individual or ruler. To set it on the right track and straightforward, each man ought to be represented by law. As indicated by Dicey, Britishers were controlled by the law and the law as it were. He was of the assessment that where there is space for discretion there is no vote based system. It will be a government. The public authority should not go about as instability for lawful opportunity with respect to its subjects. The rulers should not have optional forces to make their own laws. For sure, the framework ought to be to such an extent that the legislators need to give reasons that can be legitimized under the law while practicing their forces to make or direct the law.

Equality before law: As per the second standard of Dicey, uniformity under the watchful eye of law (recommended under article 14 of the Indian constitution) and equivalent coercion, all things considered, to the common rule that everyone must follow to be controlled by the customary law courts. This guideline incorporates everybody including the public authority (independent of their position or rank). This propose of law and order has been dealt with in the Indian Constitution under Article 14 and the Universal Declaration of Human Rights under the Preamble and Article 7.

The predominance of Legal Spirit: According to the third principle of professor Dicey, he believes that it was insufficient to simply include the above two principles in the constitution of the nation or in its other laws for the nation to be one in which the principles of rule of law are being followed.  According to him, citizens are guaranteed certain rights such as the right to personal liberty. Only when such rights are appropriately enforced in the courts of law, those rights can be made available to the citizens. Rule of law as established by Dicey requires that every action of the administration must be backed and done in accordance with law and a reasonable motive. 

In the modern age, the concept of rule of law is an antonym of the practice of conferring discretionary powers upon the government. Moreover, it also ensures that every man is bound by the ordinary laws of the land as well as ensures no deprivation of his rights and liberties by administrative action. The courts are considered as the enforcers of the rule of law and they must be impartial and free from all external influences as well. Thus the freedom of the judicial organ became an important pillar to the rule of law.

Rule of Law under Indian Constitution

Since the presentation of this guideline in the Indian Constitution, to foster popular government, law and order has assumed an extraordinary part. At the hour of the drafting of the Indian Constitution, the composers had two alternatives for example USA and England. A portion of the arrangements were received from the USA and some of them were embraced from England. The Indian Constitution is the biggest on the planet and is motivated by numerous nations. Law and order was embraced from England by our sacred creators and numerous arrangements were received in the Indian Constitution. Indian Constitution is viewed as the preeminent tradition that must be adhered to and nobody is over the Indian Constitution. Law and order is additionally given verifiable in the preface and such an idea is revered in Part III of the Indian Constitution. 

Article 14 guarantees that all residents are equivalent and that no individual will be separated based on sex, religion, race, or spot of birth. It likewise guarantees that there is a partition of force between the three wings of the public authority and the leader wing and the assembly wing have no impact or impedance in the issues of the legal executive. By these techniques, the constitution satisfies every one of the prerequisites of Dicey's hypothesis to be perceived as a nation adhering to the Rule of Law.