Rule of Law
Rule of law as prescribed by many scholars is supremacy of law. The presence of
rule of law refers to absence of arbitrariness. The term ï¿½Rule of law' had been
derived from the French Term- La Principe De Legalite
(given by Edward
Coke) meaning Principle of Legality. The exponent of term Rule of Law is Albert
Vin Dicey who in his book- The law of Constitution
had defined the term
as- Supremacy of law, Equality before law and Predominance of Legal spirit. Rule
of Law means that a country is governed by law of that country and not be
government. In short, king is not the law but law is the ultimate king.
Rule of law in a country refers that the whole country is under the control of
law and authorities governing the country gets its power from the basic law of
the country. In India, concept of Rule of Law came from England. The first two
pillars of Dicey's definition is applicable as it is in India but the third one
i.e. predominance of legal spirit is not applicable in India, which states that
law should be according to justice and not vice- versa. Constitution derives
from the various legislations of the country and judicial precedents which is
not there in India.
Opposite to this, in India, Constitution is the grundnorm of country and all the
other statutes introduced in India complying with Constitution and if any of the
legislation made is violating any provision of Constitution, then it will be
null and void. Part from this, the traces of first 2 pillars of Dicey's
definition of Rule of Law can be seen in the Indian Constitution under Art. 14,
19 and 21.
Theoretical Application of Rule of Law in India
India had adopted Common law system (Rule of law) for justice mechanism. Indian
Constitution governs the whole nation. No one is above constitution and every
authority had derived its power from the Indian Constitution. Moreover,
restrictions have been imposed on such authorities so that no authority could
misuse their powers and thus, ends arbitrary rule from the country. Rule of law
and principle of Natural Justice are enough to ensure the equality among all and
no one is above law.
There are several provisions in Indian Constitution which ensures that Rule of
law is prevailing in the country. Art. 13 ensure that any law made or amendment
in law by legislature should be in compliance with Constitution and should not
violate it. Any law made against Constitutional provision should be declared
null and void.
Art. 14 says equality before law i.e. ï¿½everyone is equal in the eyes of law and
no one is above lawï¿½. Every person is required to follow the law and whosoever
does any conduct not permissible by law should be penalized. Further on, Art. 15
and 16 are extended version of Art. 14. Art. 15 prohibit discrimination on the
basis of religion, region, sex, caste, or place of birth from entering into any
public places and Art. 16 prohibit discrimination in providing employment
Art. 21 prescribes that no one should be deprived form his right to life or
personal liberty except by the due procedure established by law.
In A.K. Kraipak V. Union of India
, AIR 1970 SC 150 Supreme Court held
that India being a welfare state follows rule of law mechanism.
In case of ADM Jabalpur v. Shivkant Shukla
AIR 1976 SC 1283(Habeas Corpus
case), majority bench in SC held that there is no other provision of Rule of Law
than Art. 21 but, dissenting with majority opinion J. HR Khanna observed that
even in the absence of Art. 21 State could not deprive a person from his life or
personal liberty unless having authority of law.
Rule of Law was considered as basic structure of Indian Constitution in
Keshavananda Bharti case. Thus cannot be amended. Henceforth, impliedly ROL is
superior to all other authorities.
Practical Application of Rule of Law in India:
Where on the one hand it is theoretically proven that Rule of Law in India does
exist, there, on the other hand, its practical application is still a debatable
question. Several critical thinkers believe that ROL in India is merely in books
but not in practice. According to World Justice Project Report (2015), India is
at 59th position in Rule of law index. India being the one of the most corrupted
countries, thus there are several challenges faced while making law and order
for the country and delivering justice.
Majority of the legislations are those which have been formed by colonial powers
before independence, being continue to exist unless expressedly repealed by
parliament. This leads to vagueness and endless litigations are to be filed for
correct interpreting it. The main purpose of Rule of Law i.e. securing justice
to all which is not served in actual as no proper mechanism is followed at all.
Public has resorted to violence against legislations passed by Parliament. The
latest example is that violence does against passing of Citizenship Amendment
Act. This resulted into Rule of Law has been just a de jure concept while in de
facto, Rule of men is prevalent.
Then another incident which shows the rule of law is not there in actual
practice is that of Khap Panchayat
(extra- constitutional body) whose decision
are mainly considered as crime under IPC, 1860 and they don't have any guilt for
their decisions and don't bother about other's life or personal liberty. The
practice of Honour Killing where killing of family member as they believe that
victims had brought dishonor to their family by not following the rule of their
community. Several guidelines have been issued by Courts but still there is no
decrease in number of honour killings.
Another case is Sabarimala Case
, where men do not bother about the
verdict of apex court of country. In this case, Supreme Court had allowed women
of menstruating age (i.e. 10- 50 years) to enter into the temple of Lord Ayappa
in Kerala for worshipping purpose, but after the verdict, instead of following
it, people in large amount protested against it. Women were not allowed by
temple priests and local people to enter into temple and exercise her
constitutional right. Hence Rule of law violated as equality was denied.
When we look at a particular concept from outside, it seems to be very luring
but its faults are there in the depth. The same goes with Rule of Law. The
principle of Rule of Law owing to the dynamism inherent in the very concept
itself has evolved at a rapid speed. The practical applicability is far
different from its theoretical implication. This development can be accredited
to the several laws laid down by the parliament and also through the numerous