Rule of Law
Rule of law in simple words mean that no one is above the law. In this Article, the Rule of Law is explained using Professor A.V. Dicey’s postulates and an overview of the application of the Rule of Law in the Indian Constitution.
Introduction —
To understand rule of law in a better way it is significant to know that the State is governed by the law not by the representatives (State as defined in Article 12 of the Constitution of India). Though India's Constitution does not define rule of law, it is evident that the concept is inculcated in many parts of the Constitution, especially under Part III, Fundamental Rights.
Rules, that is laws must be such that they apply to all the individuals equally, though we can say that concepts such as protective discrimination do come as exceptions, but laws cannot be arbitrary.
Origin of Rule of Law —
The major interpreter and originator of this wide concept were Sir Edward Coke who was the Chief Justice during James I reign. Not only him, but many other Greek philosophers such as Plato, and Aristotle widely interpreted and discussed rule of law in age-old days.
Plato believed that if the law is subject to some authority and has nothing of its own then the state will fail governance, but if the law is made to be above everything and is treated as a master of governance then men will enjoy the blessings. Aristotle believed that law should be the one governing people and the representatives of the law must act as its servant, this will ensure good governance.
Rule of law is derived from the French phrase legalite which means legality. It means that government must be based on principles of law and not of men. Today the concept has developed so greatly that it is inculcated in the basic fundamental ideas of the Constitution such as equality before the law, equal protection of the law, separation of powers, application in administrative law, independence of the judiciary, etc.
Postulates of Rule of Law —
Professor A.V. Dicey, in the year 1885 developed the concept propounded by Sir Edward Coke of rule of law and further propounded the three postulates of the rule of law in his book “Law and the Constitution.”
Professor A.V. Dicey believed that the following three postulates contribute majorly to achieve rule of law:
- Supremacy of Law:
The first postulate of Dicey talks about the Supremacy of Law which means that every human must be governed by the law. The law is above the man is the basic governing principle. This postulate ensures that there is no arbitrariness and in a democratic republic there must not be any room for unfair and unjust delivery of justice. There must be separation and distribution of powers but too much discretion on the representatives of the law is not good for healthy governance by rule of law.
Any law to be made must be in consonance with the Constitution of India and no representative of the law can make laws on their own but only as per the procedure established by law.
2. Equality before the Law:
This postulate states that there must be equality before the law, i.e., every human is equal in the eyes of the law and must be treated equally without any discrimination on any grounds. This principle of Dicey is highly evident in the Indian Constitution under Part III of Fundamental Rights.
Article 14 talks about Right to Equality. It states that “the State cannot deny to any person equality before the law and equal protection of laws within the territory of India.” This article is one the most important Fundamental Right which forms a part of the Golden Triangle along with Articles 19 and 21.
Article 15 talks about discrimination and protective discrimination. It states that no citizen can be discriminated on the grounds of religion, race, caste, sex, place of birth, or any of them by the State. Also no citizen can be denied the right to access public places. The State can also make special provisions for women and children and also for the protection of the weaker sections of the society. Article 16 talks about no one can be discriminated for government jobs on the grounds as mentioned in Article 15 and the state can make special provisions for the weaker sections of the society.
3. Predominance of Legal Spirit:
This postulte of Dicey states that citizens of the nation must be guaranteed certain rights such as right to personal liberty, equality, protection from self-incrimination, etc., basically fundamental rights. The Indian Constution fulfills this and provides 6 fundamental rights to citizens.
When such rights are enforceable in the courts of law, only then can such rights can be made available to the citizens. The postulate also states that every administrative action for the purpose of governance must be backed and done in consonance with the law.
Indian Constution applies Rule of Law —
As stated above, rule of law is evidently applied in the Indian Constitution but does not define it. Article 32 and 226 are very important provisions of the Constitution. Any fundamental right violated, the citizen can directly approach the Supreme Court and the Supreme Court has the power to issue writs as per the case (writs are of 5 types — Habeas Corpus, Mandamus, Quo Warranto, Prohibition, and Certiorari). High Courts have the same powers under Article 226. Dr. B. R. Ambedkar stated Article 32 to be the heart and soul of the constitution.
In India, the Constitution governs the country. No one is above the Constitution in India (Rule of Law applied). Every authority is provided powers to perform its functions from the Constitution and cannot work in contravention to them. Principles of Natural Justice help to ensure the application of Rule of Law as well.
Article 13 (1) of the Indian Constitution ensures that no law in derogation with the Constutition will be valid. Any law made or enacted must be in accordance with the Constitution especially with the fundamental rights. Already mentioned above Article 14 also applies Rule of law through right to equality.
Article 20 talks about ex-post facto law, double jeopardy, and protection from self-incrimination. it states that a law enacted will only work prospectively and progressively. It cannot work or applied retrospectively. No person can be prosecuted and punished for the same offence for which the person was tried and already convicted (Double jeopardy must not happen). Also, no person can be compelled to be a witness against themselves (Protection from Self-Incrimination).
Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This is the most important fundamental right and a part of the Golden Triangle. It cannot be suspended even during times of emergency. Right to life has gone through many interpretations over the years. Right to life includes many aspects of life and personal liberty such as Right to education (Article 21A), livelihood, shelter, healthy environment, medical care, food and also privacy. Not only these rights but there are many other such as right to sleep, right against sexual harassment at workplace (VISHAKA v. State of Rajasthan). Even right to life and suicide was interpreted as a part but committing suicide is a criminal offence. In 2017, th Mental Healthcare Act was passed to provide counselling and ensure safety of people who attempted to commit suicide. Right to die with dignity that is euthanasia was recognized in Aruna Shanbaugh v. Union of India. Only passive euthanasia that too only in case-by-case form is legal. Active Euthanasia remains illegal in India.
All the above mentioned provisions are forms of Rule of Law mentioned under the Indian Constituion and applied everyday. In the most important landmark case of Keshavananda Bharti v. State of Kerala, the Supreme Court held that Rule of Law is an important concept applied in the Constitution and the significant aspect of the docrtine of basic structure. No one can alter or amend the basic structure.
Rule of law in simple terms mean that no one is above the law and man must be governed by the law.
