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Rule of Law

  

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’.

1.      Rule of law is required to ensure that there is no 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.

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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