Analysis of the Administration of Rule of Law in the Present World

    INTRODUCTION TO RULE OF LAW

    The concept of “Rule of Law” is derived from the French phrase ‘La Principe de Legality’, literal translation of which is ‘the principle of legality,[1] referring to a form of government based on principles of law and not of men.

    Rule of law implies that government authority must operate per the written laws, which are held to be supreme, adopted through an established procedure. The principle of Rule of Law is intended to act as a shield against arbitrary measures of the government authorities. The term ‘Rule of Law’ provides a general framework of laws directing the behaviour of its subjects rather than anything specific like Fundamental Rights or Directive Principles etc. Therefore, the Rule of Law is the mechanism that aims at providing equality for all citizens before the law and tries to prevent the arbitrary use of power.[2]

    Rule of law is defined in the Oxford English Dictionary as “The authority and influence of law in society, especially when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”[3]

    Rule of law can be defined, in the simplest form, as, “contrast between the rule of law and rule of men, which ultimately directs that society is ruled by the laws in existence and not by the humans according to their will until and unless they are per the explicit guidelines mentioned in the ‘grundnorm’ known as ‘The Constitution’.[4]

    Rule of law is based on principles like equality of all, human rights, development of the society with the help of laws, promoting social welfare, peace, and security of the people residing in the society, preventing arbitrariness, lessening the gap between the rich and the poor, providing everyone with equal opportunity, to avoid discrimination,  etc. Hence, the objective of Rule of Law is promoting social welfare and justice in the most appropriate way by treating the like ones in the liked manner and by avoiding any kind of discrimination. It’s high time that the concept of Rule of law shouldn’t be covered by corruption and get lost in the books along with losing its actual meaning and objective of its origination and development. Therefore, the idea regarding which the concept was made has to maintain its continuity in the society so that there always remains a pillar to keep the whole system in a synchronizing manner.[5]

    RULE OF LAW: DICEY’S PRINCIPLES

    “The King himself ought not to be subject to man, but subject to God and the law because the law makes him King.” [6]

    Dicey, in his book “Law of the Constitution“, distinguished between administrative law and the rule of law. Rule of Law is the traditional principle of administrative law which forms a basis of administrative law. It is the Rule of Law that acts as the ‘backbone’ to the development of administrative law, which has now evolved as an essential element to keep a check and balance on the executive branch of the government. The principle of Rule of Law is explicitly in existence and its work is in co-ordination and co-operation with the administrative authorities. Therefore, the concept of ‘Rule of Law’ had an enduring impact on the evolution of Administrative Law in the common-law world.

    Dicey defined rule of Law as the “absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of prerogatives or even wide discretionary power on the part of the government”. Dicey asserted that when there exists discretionary power, chances of arbitrariness prevails in every possible way. He thus tried to spread the word that powers shouldn’t be confined in one hand or such a manner that it can be used in any way as desired, there is an extreme necessity that the world runs in the way established by law to prevent abuse of power.

    Another significance that Dicey imputed to the concept of Rule of Law was, “equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.” The simplest meaning of the sentence used by him is that everyone is born with a “Right to equality”, therefore, it is the obligation of the administrative authority to prevent the common people from becoming prey to discrimination, and are getting equal subjection of all the rights guaranteed to them. 

    Therefore, the major principles of Rule of Law, as given by Professor Dicey are:-

    • The supremacy of the law or absence of arbitrary power;
    • Equality before the law; and
    • The Constitution is the result of the ordinary law of the land.

    Dicey was totally against making different sets of laws for different class or sections of people and believed that to bring social order in the society, promotion of the idea of Rule of Law is essential and this rule of law is held to be equal for everyone no matter if one is a government official or a Prime Minister or a normal clerk, everyone should be subjected to equal laws and rights. Hence, this concept rejected any kind of several privileges given to any particular class of society.[7]

    As per the Indian Constitution, the principle of Rule of law is accepted by Article 14 of the Constitution, and the first and the second aspects i.e. the supremacy of the law and equality before the law, apply to the Indian system but the third principle of Rule of Law propounded by Dicey does not apply to the Indian system because India, being a democratic nation, believes in the general will of the people and that the rights of the individuals are guaranteed by the Constitution of India itself. The Indian system of law is based on the principle that the Constitution is the Supreme Law of the land and all laws passed by the legislature must be per the provisions of the ‘grundnorm’ known as the Constitution and if any law is made which encroached any of the provisions of the constitution then it will be declared as void by the Supreme Court. Therefore, the concept of ‘Equality’ as mentioned under Article 14 of the Constitution of India is an aspect of what Dicey calls the rule of law in England and the article states that the Rule of law embodied in it, is the “basic feature” of the Indian Constitution, based on which it cannot be subjected to an amendment of the Constitution under Article 368 of the Constitution. 

    EXCEPTIONS TO THE RULE OF LAW

    The rule of equality howsoever equal subjection of law it guarantees to the people but it is not absolute and there are ample number of exceptions to it- 

    • First, ‘equality before the law’ does not mean that the powers guaranteed to the public officials are the same as that of the powers given to the private citizens”. This can be explained from the following example, that a police officer has the authority to arrest anyone subjected to an offence but a private citizen is not allowed to do so; but this doesn’t mean that this is a violation of rule of law and at the same time it is required that these powers have to be clearly defined by law and necessary steps should be taken explicitly in the form of written laws to avoid abuse of authority by public officers and if any kind of undue advantage is taken by such officials then that person must be met with punishments by ordinary courts in the same manner as punished to the private citizens for committing any wrongful act.
    • Secondly, the rule of law doesn’t prevent certain classes of persons from being subject to special provisions. For example, persons belonging to the armed forces are controlled by their separate set of rules and regulations known as the military laws and the same applies in case of medical practitioners where they’re asked to follow regulations framed by the Medical Council of India which ultimately makes such groups of people immune from the jurisdiction of ordinary courts. Furthermore, the President of India and the State Governors are subjected to special laws under Article 361 of the Indian Constitution, under which they’re not answerable to any Court for the acts done or purporting to be done by him while exercising his powers and functions and no criminal proceeding shall be instituted or continued against the President or the Governor of a state during his tenure of office and no order of imprisonment or arrest can be issued by the Court against them.
    • Thirdly, ministers and other administrative bodies are given wide discretionary powers by the statutes. Such powers, in accordance to the division of powers, have been subjected to delegated legislation where a large number of legislations i.e., rules, orders, or statutory instruments are made by ministers and other bodies to act as they think fit’ and not directly by Parliament i.e. nowadays the whole power of rule-making is not vested in the hands of the Parliament. [8]

    JUDICIAL PRONOUNCEMENTS

    • S.G. Jaisinghani V. Union of India and others[9]- The Supreme Court interpreted the essentials of rule of law in a lucid manner. The Hon’ble Court made several observations in the case. It was held that the absence of arbitrary power is the first essential element of the rule of law, which ultimately forms the basis for the whole constitutional system to be constructed. In a system governed by rule of law, when executives are given discretionary powers, it must be continued within clearly defined limits. Therefore, the rule of law claims that decisions should be made by applying explicit and written principles and rules and in general such decisions must be foreseen and the citizen should be aware of the antithesis of the decision.  
    • Kesavananda Bharati v. State of Kerala[10]The Supreme Court, in this case, held that the Rule of Law is an essential part of the basic structure of the Constitution, thus cannot be amended by an Act of Parliament, thereby showing that Law is the supreme and no other authority of men can affect the superiority of laws.
    • A D M Jabalpur v. Shivkanth Shukla[11]- In this case, the question of law before the Hon’ble Court was ‘‘whether there was any rule of law in India apart from Article 21’. This answer to this question was negative and stated that even when Article 21 remains suspended during the period of emergency, the state has got no power to deprive any person of enjoying his fundamental right to life and liberty. Therefore, it was held without such sanctity of life and liberty, no more distinction between a lawless society and the one governed by law would prevail. Hence, it can be said that the Rule of Law has become the accepted norm of civilized and developed societies. 
    • Maneka Gandhi v. Union of India[12]- In this case, the Hon’ble Supreme Court established the rule of law in an extensive manner, where it stated that no person can be deprived of his life and personal liberty except for procedure established by law under Article 21 of the Constitution. It further speaks about some basic principles which are guaranteed by Article 21 that needs to be fulfilled before a person is deprived of his life and liberty: 
      1. There must be the involvement of a valid law;
      2. The law must provide a proper procedure;
      3. The procedure must be just, fair and reasonable; and
      4. The law must satisfy all the essentials of Articles 14 and 19.
    • Supreme Court Advocates on Record Association v. Union of India[13]- The Supreme Court, in this case, held that the concept of rule of law, to prevail in the society, needs the support of complete eclipse of arbitrariness and presence of specific areas for discretionary powers within the operation of rule of law but in a minimum extent so that it doesn’t lead to abuse of power by different authorities as required for proper governance of society. Furthermore, the explicit guidelines like the extent of use of power prevent the discretionary powers of the authorities to keep its real meaning and prevent arbitrary use of power. In such a situation, the application of powers of discretionary authorities goes in a sequence of the expressed guidelines. 

    RULE OF LAW AND MODERN ADMINISTRATIVE LAW

    The concept of Rule of Law is an ancient principle of Administrative Law. It is an essential deliberation without which people would be met with inequality and injustice. Administrative authorities are given the power to keep a check on the working of the executive branch of the government so that people are provided with the proper implementation of laws as per the requirement. 

    Marital rape- An Oxymoron?

    In the present times, the execution of laws has undergone a variety of alterations, the laws which were relevant before have been repealed now. For example ‘Adultery’ or ‘Same-sex relationship’; before the modern time, these activities of people were seen as an offence but now as the society is changing along with the thinking of its people, laws which are not acceptable by the majority are either modified or repealed. From these, we can say that the execution of laws depends on the needs of the society which are administered keeping in view the concept of rule of law so that everyone can enjoy the laws without any discrimination. 

    The modern concept of the rule of law is wide and therefore sets up a framework for any government to follow and promote social welfare. Accordingly, the rule of law implies that the powers and functions of the government in a free society should be operated as such that it creates fair conditions in which the dignity of man as an individual is upheld in every field by creating equal opportunities in social, economical, educational, and cultural arenas so that it could prove to be a boom to the development of the personality of a person. 

    Apart from everything, it cannot be ignored that the country is grabbed by evil acts such as corruption, improper implementation of laws, discrimination, the widening gap between the rich and the poor, poor health facilities, etc, due to which concepts like rule of law are losing their essence and people are becoming prey to injustice even after staying in a democratic country.

    CONCLUSION

    Rule of law is mostly believed to be a modern concept which is a precious gift of democracy for its people to be treated with equality. However, it is vital to understand that this criterion of a democratic nation is fundamental to the idea of good governance in the nation which in some way or the other has still not attained completely. Therefore, we need to focus on the weaknesses and loopholes that prevail in society, so that those can be rectified, thus promoting social welfare without any restrictions. But having said this, we cannot ignore the fact that it is not only the three organs of the State that are to be blamed for the dismal state of rule of law in the society; other actors like the media, civil society, and even the actions of the ordinary citizens cannot prevent themselves from exercising their respective responsibilities. Therefore it is equally important that all the actors of the social work in coordination and collaboration to ensure that the concept of Rule of Law is maintained without any discrimination. 

    Furthermore, modernity cannot accept Dicey’s concept of the Rule of Law because the modern concept of the rule of law is quite broad in functions. It takes into consideration principles such as maintaining law and order and promoting social welfare is of paramount importance, there must be fixed rules surrounded by explicit and written laws to prevent abuse of power, the due establishment of procedure and fairness of laws, observance of the principle of natural justice so that people are rendered with justice all around, judicial review of administrative authorities and check and balance by the administrative authorities. Therefore, the objective of the administrative law is to bridge the gap between liberty and power subjected to the principle of the rule of law.

    REFERENCES

    [1] Article by Naomi Choi Assistant Professor, Political Science, University of Houston, “Rule of Law” Publications’ Encyclopedia of Political Theory, Available at https://www.britannica.com/topic/rule-of-law.

    [2] M.P Jain, Constitution Law of India, Part 1 and Chapter 1 “Rule of Law” (Wadhawa, and Co., 2018).

    [3] Definition of Rule of Law given by Oxford English Dictionary online (accessed September 8, 2020). Also see Black’s Law Dictionary, 9th Edition, p. 1448. (Thomson Reuters, 2009), ISBN 978-0-314-26578-4.

    [4] Dr. N.V Paranjape, “Studies in Jurisprudence and Legal Theory”. 

    [5] Alok Kumar Yadav, Assistant Professor, Dept of Law, SRT Campus HNBGU Tehri Garhwal Uttarakhand, “RULE OF LAW” Volume 4 Issue 3 International Journal of Law and Legal Jurisprudence Studies: ISSN:2348-8212, http://ijlljs.in/wp-content/uploads/2017/08/Rule_of_Law.pdf.

    [6]Lord Chief Justice Coke quoting Bracton, in the case of Proclamations (1610) 77 ER 1352, https://www.academia.edu/12824683/RULE_OF_LAW.

    [7]Hobson, Charles. The Great Chief Justice: John Marshall and the Rule of Law, p. 57 (University Press of Kansas, 1996). 

    [8] Dr. J.N Pandey, “Constitutional Law of India”, 56th Ed. 

    [9] 1967 AIR 1427: 1967 SCR (2) 703.

    [10] (1973) 4 SCC 225: AIR 1973 SC 1461.

    [11] 1976 AIR 1207: 1976 SCR 172.

    [12] 1978 AIR 597: 1978 SCR (2) 621.

    [13] AIR 1994 SC 268.

    BY- Ananya Saha | Indian Institute of Legal Studies

    One thought on “Analysis of the Administration of Rule of Law in the Present World

    • 5 November 2020 at 7:14 am
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