Rule of Law and Indian Judiciary: A Multidimensional Study: Zainul Hasan Rizvi & Amit Kumar

RULE OF LAW AND INDIAN JUDICIARY – A MULTIDIMENSIONAL STUDY

Author: Zainul Hasan Rizvi

Co-Author: Amit Kumar

Unity PG and Law, College

ISSN: 2581-8465

ABSTRACT

‘Rule of  Law’ is a legal principle which states that Law should govern a nation and not arbitrary decision by the ruler or by the ruling party of a nation and it also signifies that all authority and power should come from the ultimate source of  law. It grants rights to the individual which cannot be taken easily. The concept of Rule of Law provides that the Constitution shall be the supreme power of the country and the legislative as well as executive derive their power from the Constitution. Rule of Law makes it clear that the King is not the law but the law is king, which means that the Law rules over all the persons including the persons administering the law. Rule of Law plays the key role in the democratic countries because it safeguards people from the arbitrary action of the administrative authorities. The concept of ‘Rule of Law’ is of very old origin and it is an ancient ideal. The expression ‘Rule of Law’  is derived from  the French phrase ‘la principe de legalite’ which means the principle of legality and it refers to a government which is based on the principles of  Law i.e., Law should govern a nation and not arbitrary decision by individual government officials. Rule of law is one of the basic principles of the English constitution and this doctrine is accepted in the Constitution of  U.S.A. and India as well. It is impossible to get the supremacy of law without the principle of rule of law.

Key Words Rule of law, la principe de legalite, droit administration, judicial activism, ultra vires, arbitrariness, personal liberty, judicial review, liberal democracies.

Concept of Rule of Law

The Rule of law is a product of centuries of struggle of the individuals for the recognition of their inherent rights. Being an ancient ideal the concept was discussed by ancient Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote “Wherever the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state[1].” However, the rule of law is also much larger than this. The relevance of rule of law, and an understanding of its concepts, has its origins in the Magna Carta.

The phrase ‘Rule of Law’ is derived from the French phrase ‘la Principe de legalite’ which means the principle of legality and it refers to a government which is based on the principles of Law. A state where rule of law is “protected and promoted” is also taken to be a state where people are assured of their basic rights, and as a principle says “if respected by government, the Rule of Law inspires loyalty among citizens. By observing Rule of Law, a nation demonstrates that it values individuals and their importance. Conversely, by ignoring the Rule of Law, a nation acts arbitrarily, capriciously, and discriminatorily and illustrates that race, gender, wealth, and power are the values most important to the regime. In the end, ignoring the Rule of Law produces an elitist society”[2].Professor Albert Venn Dicey proposed three pillars of rule of law which is based on that a government should based on the principles of law and not of men.[3] The first pillar is known as Supremacy of law which states that Law is supreme, no matter who are you, the Law is always above you. This principle also state that the law rules over all people including the persons who is administrating the law. The second pillar of rule of law is Equality before law which state that the law cannot discriminate between people according to their sex, religion, caste, race etc. The third pillar of rule of law is the Pre-dominance of legal spirit which state the court enforces rule of law and it must be both impartial and free from all external influences. The concept of the Rule of Law is very dynamic and important in the Indian Judiciary because it checks abuse of power by authorities. So we can conclude that the freedom of the judiciary becomes the most important part of the rule of law.[4]

Rule of Law and Independence of Judiciary.

“Judiciary is an independent organ to save guard the constitutional provisions which exist for safeguarding the Rule of Law”- Mr. Allen.

The origin of the concept of rule of law in India can be traced in the Upanishad. It embodies that Law is the real king which means law is the king of king. Law is extremely powerful and greater than kings and there is nothing higher than law. Independence of Judiciary means that the judiciary should be independent of the interference or influence from the government or the party in power. Judicial Independence guarantees that the judges are free to decide honestly and impartially and is mostly considered as crucial to the rule of law and stable political and economic change. Rule of law is one of the basic principles of the English constitution and this principle is also accepted in the Constitution of the U.S.A. and India as well. The concept of rule of law is found in the Indian Constitution under art.14 and universal Declaration of Human Rights u Preamble and art.7 etc. The relationship between the Indian judiciary and rule of law may be described in the following heads namely Separation of Power, Fundamental Rights, Independence of Judiciary, Judicial Review, Judicial Activism, etc. The Doctrine of Separation of Powerdivides the government into three organs which are separated from each other they are Legislative, Executive and Judiciary. The main objective of separation of power is to protect the abuse of power with in different spheres of government. The separation of powers maintains a check and balance between these three organs. The case of ADM Jabalpur v. Shivkant Shukla[5]is one of the most important when it comes to rule of law because in this case the question that arises before the court was that “whether there was any rule of law in India apart from Article 21.” This was in the context of the suspension of enforcement of Article 14, 21 & 22 during the Emergency. The answer of the majority of the bench was in negative for the question of  law but H.R. Khanna dissented from the majority opinion and said that “ Even in the absence of Article 21 in the Indian Constitution, the state has no power to deprive any person of his life and liberty without the authority of law.”If there is one principle which runs through the entire fabric of the entire constitution, it is the principle of the rule of law and under the constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective[6]. A continuous watchfulness on the part of the Legislators, the Judiciary, the Lawyers and the Public are essential factors to preserve the human liberty and the spirit of the constitution framed by the elders of our Nations”[7]

The standard of rule of law cannot be maintained if our judiciary is not independent, because an independent judiciary is the hallmark of a strong democracy. Both the Declaration of Human Rights and International Covenant on Political and Civil Rights list judicial independence as central to safeguarding Human rights. In the case of Bachan Singh v. Union of India[8], Chief Justice Bhagwati said “Rule of Law excludes Arbitrariness and Unreasonableness.”

Supreme Court being the backbone of Constitution.

The Supreme Court acts like the guardian protector and interpreter of the Constitution and also the guardian protector of Fundamental Rights of the people and that’s why it exercises the power of Judicial Review. By this Judicial Review, the Supreme Court determines the validity of all laws made by the legislature and it can reject any law which is found to be unconstitutional. In the case of Indira Gandhi v. Raj Narain[9], Article 329-A was being inserted in the Constitution under the 39th amendment. This provides certain immunities to election, the election of office of Prime Minister from the concept of Judicial Review. The Supreme Court later declared that Article 329-A was unconstitutional as it abridges the basic structure of the Constitution. In the case of S.R. Bommai vs. Union of India[10]  the judges said that there are certain situations where the political elements dominate and no judicial review is possible. In the case of Kesavananda Bharti v. State of Kerala[11]  the nature and scope of rule of  law has been expanded in Judiciary in this landmark judgment which state that rule of law is a part of the basic structure of the Indian Constitution and, therefore, it cannot be destroyed or removed by even by the Parliament of the India. Also in S.P. Sampath Kumar v. Union of India[12]the court have reiterated that judicial review is part of the basic structure of the Constitution.

Role of Indian Judiciary For The Betterment of Women by Applying Rule of Law.

 In the case of Indian Young Lawyers Association v. State of Kerala[13]  The Hon’ble SC had taken a much more simplified and solid approach towards the Rule of Law, In this case, apart from articles 14, 21, 25-28 & art.17 was given a new dimension. Supreme Court with a 4:1 majority declared that the Kerala Worship Act as unconstitutional and allow entry of women to the temple who were falling between the age group of 10-51, In this case the rule of law played a major role according to art.17 which talks about abolition of untouchability what Supreme Court interpreted in this article was the expression “in any form” .Justice D.Y Chandrachud in his judgment observed that  “while referring to the constituent assembly debates it is very much clear that the framers of the constitution has left the term ‘in any form open’ for a much wider interpretation and the concept of rule of law has to be interpreted in the much wider sense”. 

Also in Vishaka v. State of Rajasthan[14] the Supreme Court gave the guidelines against sexual harassment in the workplace.  Art.32 which is the heart and soul of our constitution, Rule of law is the guardian for the spirit of the constitution, and when it comes to the protection of Fundamental Rights it is the spirit of Rule of  ‘Law that acts as the guardian of the constitution.

Conclusion

The term ‘Rule of law’ is not mentioned expressly in the text of the constitution but in the present era, the modernized name of it is known as Natural Law. In Jurisprudence, the Roman knows this as ‘jus naturale’. Coming ahead in time, Rousseau, Thomas Hobbes, and John Locke called it as ‘Social Contract’ or ‘Natural Law’ and the modern man refers to it as ‘The Rule of Law’. In this way, it can be said that the concept of rule of law is coming from a very long period and in each and every fair decision rule of law is the backbone of that decision. At last, after a brief overview of the provisions of the constitution and judicial decisions, it can be safely concluded that the Indian Constitution lay down the rule of law as a basic fundamental governance principle and there is no fair and impartial judiciary without rule of law and in-fact we can say that both are interconnected. But also there are some scenarios in recent times where the principle of rule of law is violated by the government by introducing some controversial Bills or Acts which lead to massive protest in different states of the country. The rule of law is very crucial to the functioning of a free and flourished society. The accomplishment of the courts is an essential ingredient in rule of law reforms as the existence of a judiciary is a fundamental aspect of the rule of law. It is believed that the modern concept of rule of law is a gift of democracy. The Constitution must in all circumstances be considered supreme, and the laws made by the legislature should pass the test of reasonableness and the objectives enshrined in the constitution. If any organ of the government crosses its limits or encroaches upon the powers of the other organs or exceed jurisdiction, the act shall be considered as invalid and any abuse of law or any action shall be termed as void ab initio: and the principle of checks and balance will come into play to ensure the sustenance of the principle of Rule of Law.


[1] An evolution of Plato’s Ideal state

[2] Dr. Rabindra Kr. Pathak, The virtue of Rule of Law, 7 RMNLUJ 121 (2015)

[3]ALBERT VENN DICEY, AN INTRODUCTION TO THE STUDY OFLAW OF THE CONSTITUTION 202-203 (6th ed., 1902)

[4] MP JAIN,INDIAN CONSTITUTIONAL LAW 8(Lexis Nexis 8thed ., 2018)

[5] (AIR 1976 SC 1207)

[6] Supreme Court Advocates –on- Record – Association and another v. Union of India, (2016) 5 SCC 1.

[7] Officiating Chief Justice, Sri P.R. Gokulkrishnan, Need for progress and development of society without losing the thread of Human Rights, Rule of Law and Democratic Principles, 94 LW (JS) 61 (1981).

[8] (AIR 1982 SC 1325)

[9](AIR 1975 SC 2299)

[10] (AIR 1994 SC 1918)

[11]Kesavananda Bharti v. State of Kerala ( AIR 1973 SC 1461),

[12] 1987 SCR (3) 233.

[13] (2018) SCC Online Sc 1690.

[14] (1997) 6 SCC 241.

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