The document discusses the origin and principles of the rule of law. It notes that Greek philosophers like Plato first discussed the concept over 2000 years ago. In the 17th century, Sir Edward Coke established the supremacy of law over the executive in England. In the 19th century, A.V. Dicey defined three principles of the rule of law: supremacy of law, equality before law, and predominance of legal spirit. The rule of law is an important part of the Indian constitution and judiciary plays a key role in upholding it through judicial review and protecting fundamental rights.
The document discusses the origin and principles of the rule of law. It notes that Greek philosophers like Plato first discussed the concept over 2000 years ago. In the 17th century, Sir Edward Coke established the supremacy of law over the executive in England. In the 19th century, A.V. Dicey defined three principles of the rule of law: supremacy of law, equality before law, and predominance of legal spirit. The rule of law is an important part of the Indian constitution and judiciary plays a key role in upholding it through judicial review and protecting fundamental rights.
The document discusses the origin and principles of the rule of law. It notes that Greek philosophers like Plato first discussed the concept over 2000 years ago. In the 17th century, Sir Edward Coke established the supremacy of law over the executive in England. In the 19th century, A.V. Dicey defined three principles of the rule of law: supremacy of law, equality before law, and predominance of legal spirit. The rule of law is an important part of the Indian constitution and judiciary plays a key role in upholding it through judicial review and protecting fundamental rights.
The document discusses the origin and principles of the rule of law. It notes that Greek philosophers like Plato first discussed the concept over 2000 years ago. In the 17th century, Sir Edward Coke established the supremacy of law over the executive in England. In the 19th century, A.V. Dicey defined three principles of the rule of law: supremacy of law, equality before law, and predominance of legal spirit. The rule of law is an important part of the Indian constitution and judiciary plays a key role in upholding it through judicial review and protecting fundamental rights.
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Rule of Law
Aarti A. Tayde Assistant Professor MITWPU Faculty of Law, Pune Rule of Law its origin The concept of rule of law is of old origin. Greek philosophers such as Plato and Aristotle discussed the concept of rule of law around 350 BC Plato wrote “Where 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”. Aristotle wrote “law should govern and those who are in power should be servant of the laws Rule of Law its origin Sir Edward Coke the Chief Justice in James I Reign was The originator of the concept of rule of law He maintained that the King Should be under God and the Law He established the supremacy of the Law against the executive and that there is nothing higher than Law. Rule of Law its origin In 1885, Professor A.V Dicey developed this concept of Coke and propounded three principles or postulates of the rule of law in his classic book ‘Law and the Constitution.’ According to Professor A.V Dicey, for achieving supremacy of law three principles of postulates must be followed which are as follows:
1. Supremacy of law, 2. Equality before law and 3. Predominance of Legal Spirit Rule of Law - its origin the phrase ‘Rule of Law’ is Derived from the French phrase ‘la principe de legalite’ which implies principle of legality. By this phrase it refers to a government based on principles of law and not of men. One of the basic principles of Constitution is rule of law and this concept is up to standard in both India and America Constitution. The doctrine of rule of law is the entire basis of Administrative law. According to Aristotle, the concept of rule of law is grounded in the ideas of justice, fairness and inclusiveness. Today, an intricate chain of fundamental ideas is incorporated in rule of law which further encompasses equality before law, equal treatment before the law for government, independence of judiciary, consistency, transparency and accountability in administrative law. 1. Supremacy of law
As per the first postulate, rule of law refers to the lacking of arbitrariness or wide discretionary power. In order to understand it simply, every man should be governed by law.
According to Dicey, English men were ruled by the law and the law alone and also where there is room for arbitrariness and that in a republic no less than under a monarchy discretionary authority on the part of the Government must mean insecurity for legal freedom on the part of its subjects. There must be absence of wide discretionary powers on the rulers so that they cannot make their own laws but must be governed according to the established laws. 2. Equality before law According to the second principle of Dicey, equality before law and equal subjection of all classes to the ordinary law of land to be administered by the ordinary law courts and this principle emphasizes everyone which included government as well, irrespective of their position or rank. But such element is going through the phase of criticisms and is misguided. As stated by Dicey, there must be equality before law or equal subjection of all classes to the ordinary law of land. (case of Hathras) French legal system of Droit Administrative was also criticized by him as there were separate tribunals for deciding the cases of state officials and citizens separately. 3. Predominance of Legal Spirit According to the third principle of Dicey, general principles of the Indian Constitution are the result of the decisions of the Indian judiciary which determine to file rights of private persons in particular cases. According to him, citizens are being guaranteed the certain rights such as right to personal liberty and freedom from arrest by many constitutions of the states (countries). Only when such rights are properly enforceable in the courts of law, those rights can be made available to the citizens. Rule of law as established by Dicey requires that every action of the administration must be backed and done in accordance with law. In modern age, the concept of rule of law oppose the practice of conferring discretionary powers upon the government and also ensures that every man is bound by the ordinary laws of the land as well as signifies no deprivation of his rights and liberties by an administrative action. Rule of Law under Indian Constitution In order to develop Indian democracy, rule of law has played a great role. At the time of framing of Constitution, the framers had two options i.e. USA and England. Some of the provisions were adopted from USA and some of them were adopted from England. Rule of law was adopted from England by our constitutional fathers and many provisions were incorporated in the Indian Constitution. Indian Constitution is considered to be supreme and no one is above Indian Constitution. Rule of law is also given impliedly in the preamble and such concept is enshrined in Part III of the Indian Constitution. Rule of Law under Indian Constitution In case of violation of such rights, one can approach Supreme Court or High Court under Article 32 and 226 of the Indian Constitution. The Constitution of India is enriched with the principles of law i.e. justice, equality and liberty. Any law made by the Central government or State government must be complied in accordance with the Constitution of India. If any law made by the legislature contravenes with the provisions of the Constitution then such law will be declared void. Rule of Law under Indian Constitution Under Article 32 of the Indian Constitution, the Supreme Court has the power to issue writs in the nature of Habeas Corpus, (have the body) Mandamus,(order) Prohibition, (prevent/ stay) Quo warranto, (legal right to hold an office/ with what authority) and Certiorari (higher court reviews a case tried in a lower court) The power of Judicial review is also given to Supreme Court in order to prevent any ultra vires law so as to preserve ‘Rule of law’ Role of Indian Judiciary There are a plethora of cases where the concept of rule of law was discussed and came into light. Some of the cases are as follows 1. ADM Jabalpur v. Shivkant Shukla [(1976) 2 SCC 521.] This case is also known as “Habeas Corpus case”. It is one of the most important case when comes to rule of law. The question that was raised before the hon’ble court was that whether there was any rule of law in India apart from Article 21 of the Indian Constitution. It was in context relating to the proclamation of emergency where the enforcement of Articles 14, 21 and 22 were suspended. 2. Som Raj v. State of Haryana [1990 AIR 1176.] In this case it was held that the absence of arbitrary power is the postulate of rule of law upon which the whole constitutional edifice is dependent. Role of Indian Judiciary Union of India v. Raghubir Singh [Decided on 18.09.2013.] In this case it was held by the court that a considerable degree that governs the lives of the people and regulates the State function flows from the decision of the superior courts.(Supremacy of Courts) Chief Settlement Commissioner, Punjab v. Om Prakash[AIR 1969 SC 33] In this case, Supreme Court observed “In our constitutional system, the central and most characteristic feature is the concept of rule of law which means, in the present context, the authority of law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the matter into notice.” Role of Indian Judiciary
Keshvananda Bharti v. State of Kerela [(1973) 4 SCC 225.]
In this case, the Supreme Court enunciated the concept of rule of law as one of the most important aspects of doctrine of basic structure. Maneka Gandhi v. Union of India [AIR 1978 SC 597] In this case Supreme Court declared that Article 14 strikes against arbitrariness. Role of Indian Judiciary Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil [AIR 1994 SC 678.] In this case, the ration laid down was “If the rule of law has to be preserved as the essence of the democracy of which purity of elections is a necessary concomitant, it is the duty of the courts to appreciate the evidence and construe the law in a manner which would sub serve this higher purpose and not even imperceptibly facilitate acceptance, much less affirmance, of the falling electoral standards. For democracy to survive, rule of law must prevail, and it is necessary that the best available men should be chosen as people's representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values who win the elections on a positive vote obtained on their own merit and not by the negative vote of process of elimination based on comparative demerits of the candidates.” Role of Indian Judiciary
Secretary, State of Karnataka and Ors. v. Umadevi [(1992) 3 SCR
826.] A Constitution Bench of this Court has laid down the law in the following terms: “Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution.”
