RULE OF LAW
– Amrita Singh
Asst. Prof., Indore Institute of law
– Digpal Singh Chouhan
Asst. Prof., Indore Institute of law
For a democratic government, the rule of law is a basic requirement, and for the maintenance of rule of law. There must be an independent an impartial judiciary. It is embodied in the concept of rule of law that equality before the law or equal protection of laws is ensured in all citizens, and every citizen is protected from arbitrary exercise of power by the State. Thus, state implementing to rule of law aims should be to provide for a system which secures to its citizens adequate procedure for the redress of their grievances against the state before forums which are able to administer justice in an impartial manner without any fear or favour.
The growing threat to the rule of law is coming from undue delay in judicial proceedings. In order to ensure the rule of law the system must, therefore, ensure effective and expeditious remedies against the violation of the law.
“Rule of law” is the supreme manifestation of human civilization and culture and is a new “lingua franca” of global moral thought. It is an eternalvalue of constitutionalism and an inherent attribute of democracy and good governance.
The concept of rule of law is an animation of natural law and remains as a historical ideal which makes a powerful appeal even today to be ruled by law not by a powerful man.
“Rule of law” is to be understood neither as a “rule” nor a “law”. It is generally understood as a doctrine of “state political morality” which concentrates on the rule of law in securing a “correct balance” between “rights” and “powers”, between individuals, and between individuals and the state in any free and civil society. This balance may be drawn by “law” based on freedom, justice, equality, and accountability. Therefore, it infuses law with moral qualities. Thus, the rule of law is a “law of rules/principles”.
The term “rule of law” derived from the French phrase “la principe de legalite (the principle of legality) which refers to a government based on principles of law and not of men. In this sense the concept of la principe de legalite was opposed to arbitrary powers. James M. Buchanan distinguishes between “law” and the “rule of law”. All primitive and non-democratic societies had “law”, but all liberal and progressive societies having “rule of law” are not necessarily of law, besides fairness, prospectively and due process. Generality as an ingredient of law forecloses manymajoritarian options, but classification is still possible provided it is reasonable and in public interest. Generality as a normative principle of rule of law, makes law more acceptable and there are less chances of oppression and discrimination. Generality provides for more liberty and freedom for action and protects human rights of the people.
In India, the concept of the “rule of law” can be traced to the Upanishads. It provides: Law is the King of Kings. It is more powerful and rigid than they (kings). There is nothing higher than law. By its powers the weak shall prevail over the strong and justice shall triumph.”
Dicey’s exposition of the rule of law
Dicey’s formulation of the concept of “rule of law” which according to him forms the basis of the English constitutionallaw contains three principles:
Absence of the discretionary power in the hands of the government officials. By this Dicey implies that justice must be done through known principles. Discretion implies absence of rules, hence I every exercise of discretion there is room for arbitrariness.
1) No person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense, the rule of law implies.
• absence of special privileges for a government official or any other• person,
• All the persons irrespective of status must be subjected to the ordinary courts of the land;
• Everyone should be governed by the law passed by the ordinary legislative organs of the state.
2) The rights of the people must flow from the customs and traditions of the people recognized by the courts in the administration of justice.
In France, Dicey observed that the government officials exercised wide discretionary powers, and if there was any dispute between a government official and a private individual, it was tried not by an ordinary court but by a specialadministrative court. From this Dicey concluded that this system spelt the negation of the concept of the rule of law which is the secret of Englishmen liberty. Therefore, Dicey concluded that there was no administrative law in England.
The first principle of Dicey’s rule of law is the recognition of a cardinal principle of democratic governments as opposed to arbitrary and autocratic governments which lays down that no functionary of the government should have wide arbitrary or discretionary powers to interfere with the liberty and freedom of people. But here Dicey was not referring to a wide measure of discretion which is inescapable in any modern government.
Secondly, the rule of law means:
equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.
In Dicey’s view this implied that no one was above the law; that officials like private citizens were under a duty to obey the same law; and that there was no administrative courts to decide claims by the citizens against the state or its officials.
Thirdly, the rule of law meant;
That with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and parliament so extended as a determine the position of the crown and of its servants; thus the constitution is the result of the ordinary law of the land.
Therefore the rights of the individual were secured not by guarantees set down in a formal document but by the ordinary remedies of private law available against those who unlawfully interfered with his or her liberty, whether they were private citizens or officials.
Assessment of Dicey’s view
It is contrary to the rule of law that discretionary authority should be given to government departments or public officers, then the rule of law applies to no modern constitution. Discretionary authority in most spheres of government is inevitable. Attention has to be concentrated not so much on attacking the existence of discretionary powers as on establishing a system of legal and political safeguards by which the exercise of such powers may be controlled. Doubtless Dicey would have regarded as arbitrary many of the powers of government on which social welfare and economic organization now depend.
Diecy’s second meaning stresses the equal subjection of all persons to the ordinary law, the 14th amendment to the United States Constitution provides; inter alia, that no state shall ‘deny to any person within its jurisdiction the equal protection of the law’, a provision which has been a fertile source of constitutional challenges to discretionary state legislation. Similar provisions are found in the constitutions of India, Germanyand Canada. Constitutionalguarantee of equality before the law may achieve is to enable legislation to be invalidated which distinguishes between citizens on grounds which are considered irrelevant, unacceptable or offensive (for example, improper discrimination on ground of sex, race, origin or color). These views of Diecy long impeded the proper understanding of administrative law, but today the need for such law in a democracy cannot be denied.
Dicey’s third meaning of the rule of law expressed a strong preference for the principles of common law declared by the judges as the basis of the citizen’s rights and liberties. Diecy had in mind the fundamental political freedom – freedom of the person, freedomof speech, freedom of association. The citizen whose freedoms were infringed could seek a remedy in the courts and did not need to rely on constitutional guarantees. Dicey believed that the common law gave better protection to the citizen than a written constitution.
Three aspects of the rule of law
1) Law and order better than anarchy,
2) Government according to law,
3) The rule of law as a broad political doctrine.
It is not possible to formulate a simple and clear cut statement of the rule of law as a broad political doctrine. As the needs of national and international community’s change, so we may need to restate the received values of law in response to those changes. The maintenance of life in modern society requires willingness from most citizens for most of the time to observe the laws, even when individually they may not agree with them. It deserves to be remembered that law, like the democratic process, may be use to protect the weaker, underprivileged sections of society against those who can exercise physical or economic force.