by Harmanjot Kaur
The constitutional law
and jurisprudence would be a cakewalk if one is well versed with the concepts
such as natural justice and rule of law. similarly, in the indian contracts
act, we encounter terms such as ‘based on equity and law of natural justice’, however,
it is very difficult to interpret them in case one is not well versed with
these terms. Here we will discuss these terms in detail.
Rule of Law
Introduction
The term rule of law is
derived from the ‘French phase’ La principle de legalite’ which means
that the government based on the principle of law
Edward Cook
is said to be the originator of the concept of the rule of law. He said that
the king must be under God and Law. Edward Cook has three major points
to say regarding ‘Rule of Law’.
3. Rule of Law is for the protection of individual and their rights.
Principles
Edward Cook
is said to be the originator of the concept of the rule of law. He said that
the king must be under God and Law. Edward Cook has three major points
to say regarding ‘Rule of Law’.
1. 1. Rule of law is required to ensure that
there isno authoritarian rule of the crown.
2.
Rule of Law is to ensure that there is no
arbitrary authority of the government.
3.
Rule of Law is for the protection of
individual and their rights.
Objects of Rule of Law
·
To restrict the authoritarian rule.
·
To exclude arbitrary authority of the government.
·
Equal application of orders.
·
To do things in legally right way.
·
Protection of Individuals and their
rights.
·
Legal limits or the law is supreme.
·
Administrative actions can be questioned
by law.
Rule of law in two broad senses
The rule of law is a
viable and dynamic concept like many other such concepts. It is not capable of
any exact definition. The term ‘Rule of Law’ is used in contradiction to the rule
of man and Rule in accordance to law. Rule of Law means that the law evolves
based on the principles of equality, freedom and non-discrimination,
fraternity, non-arbitrariness and its certain secular outlooks.
Formalistic
Sense
In this sense, it refers
to the organised power as opposed to a rule by one man.
Ideological
sense
In this sense, it refers
to the regulation of the relationship of the citizens and the government.
Dicey’s formulation of rule of law
1.
There should be absence of the
discretionary powers in the hands of government.
2.
No person should be made to suffer in body
or deprived of his property except for distinct breach of law and no man is
above law.
3.
The rights of the person must flow from
the customs and traditions of the people recognised by the court in the
administration of justice.
Thus, we see that the
basic concept lies in the supremacy of legal spirit, equality and supremacy of
law in the above three postulates.
Basic principles of the rule of law
·
Law is supreme and above everything and
everyone. Nobody is above law.
·
All things should be in accordance with
the law, not based on the whim of sudden desire.
·
No person should be made to suffer except
for a distinct breach of law.
·
Absence of the arbitrary powers is the
heart and soul of the Rule of Law.
·
Equality before law and the equal
protection in the eyes of law.
·
Discretionary should be exercised within
reasonable limits and set by law.
·
Adequate safeguard against executive abuse
of power.
·
Independent and impartial judiciary.
·
Fair and just procedure is a must.
·
There should be speedy trials.
Rule of law and Indian Constitution
In India, the
constitution of India is supreme and the principles are clearly settled in the
Indian Constitution and the Preamble. In India, there is supremacy of the
parliament, executive and judiciary.
Article
14, lays down the provisions for the equality before law and
the equal protection in the eyes of law. Similarly, we have fundamental rights
available to Indian citizens through Article 13, 14, 15, 21,
22, 25, 28 and 31-A of the constitution.
Exceptions to the Rule of Law
The president and the
governors are provided some immunities through the constitution of India.[1]Furthermore,
there is an immunity provided to the foreign diplomats. Similarly, immunity to
supreme court and High Court judges is also included in the constitution.
Modern concept of the rule of law
The modern concept of the
rule of law is quite wide. Therefore, it set up ideals for the government to
achieve.
Committee on the individual liberty
and rule of law
The state should not pass
discriminatory laws which would interfere in the religious beliefs, or which
place undue restrictions on the freedom.
Committee on government and the rule
of law
Rule of Law means that
there should be adequate safeguards against the abuse of power but an
effective government capable of maintaining law and order is a must.
Committee on the criminal
administration and rule of law
The justice Mallimath
Committee’s recommendations should be followed here. There
should be due process in the criminal proceedings, legal aid, the presumption of
innocence, no arrest without the reputed authority etc.
Committee on the judicial process and
rule of law
We observe that the basic
structure doctrine should be acknowledged here. The independence of judiciary,
legal protection should be followed.
Thus, from the above
discussion, we observe that there is a constant evolution of the rule of law in
case of the Indian perspective. We see that various philosophers have tried to
distinguish the rule of law and natural justice. However, both these concepts
go hand in hand. Above both of them, in order to keep a check on the system of
governance, the concept of ombudsman has evolved. This further preserves the
basic structure doctrine and the rule of law and natural justice. Thus, we see
that all the concepts are interlinked and the clear separation is a difficult process.
This is evident from the above example that India follows a system of checks
and balances which is a mixture of the concept of ‘Separation of Power’ from
America and the British system of governance.
Also Read:
1. Jurisprudence: Administration of Justice
https://lawpaws007.blogspot.com/2022/04/jurisprudence-administration-of-justice.html
2. Jurisprudence: Relationship between Law and Ethics
https://lawpaws007.blogspot.com/2022/04/jurisprudence-relation-between-law-and.html
3. Administrative Law: Ombudsman
https://lawpaws007.blogspot.com/2021/12/ombudsman.html
4. Privacy Law: The Aftermath of Puttaswamy's Judgement
https://lawpaws007.blogspot.com/2021/12/privacy-law-aftermath-of-puttaswamys.html
5. Case Laws
https://lawpaws007.blogspot.com/search/label/Case%20Laws
6. Labour Law: Employee State Insurance Act
https://lawpaws007.blogspot.com/2022/04/labour-law-employee-state-insurance-act.html
7. Know the law
https://lawpaws007.blogspot.com/2022/04/know-law.html
8. Shipping Contract and the clauses covered under it
https://lawpaws007.blogspot.com/2021/12/shipping-contracts-and-clauses-covered.html
9. Labour Law: Employee Compensation Act
https://lawpaws007.blogspot.com/2022/04/labour-law-employee-compensation-act.html
10. Labour Law: Minimum Wages Act
https://lawpaws007.blogspot.com/2022/04/labour-law-minimum-wages-act-1948.html
11. Labour Law: Equal Remuneration Act
https://lawpaws007.blogspot.com/2022/04/labour-law-equal-remuneration-act.html
12. Labour Law: Bonded Labour Act
https://lawpaws007.blogspot.com/2022/04/labour-law-bonded-labour-act.html
13. Labour law: Payment of Wages Act
https://lawpaws007.blogspot.com/2022/04/labour-law-payment-of-wages-act-1936.html
·
[1]
Article 368, 361 (2), (3) and (4).
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