RULE OF LAW
Posted On : April 17, 2017
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“No matter what your position is, if you have the citizenship you have to follow the rule of law”
Rule of law means that there is a special principle which has to be followed by the government and all the law making bodies and citizens itself. Rule of law also means the supremacy of law. Law governs the country that if only written provision is given then only it must be followed, without given in legal provisions no one is bound to follow. Every citizen who have citizenship of their respective countries and law makers are subject to law. They all are governed under one law and has to follow all principle which are codified acc. to their constitution.
The expression 'Rule of Law' has been derived from the French phrase 'la principle de legalite', i.e. a Government based on the principles of law. Administration of justice i.e. the person is of any status (higher or lower) he has to follow the norms enacted in the law. Therefore govt. works only with the written procedure which somehow provides a safeguard to citizens by getting ruled by the arbitrary actions of the government.
The rule of law is –
• Rare and protean principle of our political tradition ,
• The values of regularity and restraint,
• A government of laws, not men.
The basic meaning of this rule is that there is no specification as of any rule like whether they have to follow any specific procedure in rule of law there is no such condition but the RULE OF LAW mainly means that the provision given in law which must be such that give answer to the behaviours of its subject and it must be obeyed.
DICEY'S THEORY of Rule of Law consists of three main principles
• Supremacy of I.aw
• Equality before Law
• Predominance of Legal Spirit
Rule of law says that no man is punishable unless it is proving in the ordinary courts by the ordinary procedure. He will be punished only if he proved to be guilty under any enacted law otherwise he cannot be punished for anything else. No man can be punished until there is breach of law. No man is above law; there must be equality with all classes to the ordinary law of land. It is also stated that documentary guarantee given to the citizen is not enough it must be available to citizens only after proper enactment. such rights like personal liberty or freedom from arrest etc. there are some rights which are not enforce and given by the judicial decision (by the human being)which is against the concept of rule of law as the rule says only law has power to punish the wrongdoer not the individuals. This principle is followed everywhere except India because Indian basic principle by which Indian laws are governed is constitution of India.
The basis of Administrative Law is the 'Doctrine of the Rule of Law'. It was founded by Sri Edward Coke, and was developed by Prof. A.V. Dicey in his book 'The law of the Constitution' (1885).
‘Edward coke’ introduced the concept he stated that-
The king himself ought to be subject to God & Law because law makes him king i.e. king must be under God and law.
As per Indian context it is said to be Upanishad. It says that law is king of kings i.e. supreme. It is more powerful and higher than the king and there is no supremacy than law. Otherwise the weaker got harm or may cause injustice. So it basically means that law is absolute supreme and remove the existence of arbitrariness in every form.
Modern sense
Dicey states the rule of law in modern concept very different. He says: - The functions of the government in democratic society should be so exercised as to create conditions in which the dignity of man as an individual is upheld.
Rule of law
• Means govt. under any law but it is also the rule of democratic government which is passed in the democratically elected parliament after discussion and debate.
• Implies a democratic system.
• A constitutional government where criticism of govt. shows the positive merit.
• The suspension of right to freedom to speech and expression leads to the violation of fundamental rights.
Some countries like Greece, China, Mesopotamia, India & Rome using this principle.
In England,
• No written constitution
• Rule of law applied in concrete sense
• Court are guarantor of individual rights
• Rule of law has an effective control over executive and administrative power. No rule of later not accepted, as many statues are getting priorities.
• But one principle followed “king can do no wrong”.
• Prof. dicey can’t distinguish between arbitrary powers from discretionary one and failed to understand the merits of French legal system.
In India,
• The supremacy in India is of Indian constitution.
• Rule of law is treated to be a part of basic structure of Indian constitution & of natural justice.
• It never violated by the legal bodies.
In 1973, Keshvanda Bharti vs. State of Kerala
• The Supreme Court enunciated the rule of law as one of the most important aspects of the doctrine of basic structure.
In Europe,
• They have heritage of political tradition, ideals, freedoms and the rule of law.
• Says the exercise of public powers shall be based on an act. The law shall be strictly observed.
• France was one of the early pioneers of the ideas of the rule of law
• The German interpretation is more "rigid" but similar to that of France and the United Kingdom (Rule of law is the important principle by which the country is governed, dating from Magna Carta (1215) & Bills of right (1689)).
Rule of Law is supreme or Man-Made Law
As per the provisions, rule of law is superior but on the other side we can also say that man-made law is superior because they are enacted as per the need of the society. Likewise it’s not possible all the time that law must be codified first then applied. The societal environment is continuously changing and when the need arises to punish the wrongdoer then principle of rule of law became a drawback. The principle itself states that until it is given in the provision no person shall be punished. 3ways- (given in the image below)
The rule of law restricts the power of govt. to make rules and also provide right to them to exercise their power within the written rules and procedures given in the constitution. And govt. has to work within such rules but if they don’t follow such rules then they can use their power to punish any individual irrespective of the fact that they are bias or unbiased.
When the power given to govt. under any law to punish exceeds then rule of law imposes the liability on the government. But yes govt. can also exceed its power when it is legally required that the person is held to answer for an act. Mainly government makes law thinking of their own benefit or in respect to power they hold. They treat citizens like puppet and to stop that, the RULE OF LAW was introduced. On the other hand, when there is requirement to take instant decision, which should be bound on the citizen then this principle becomes a problem. The more prosecutorial decisions are based on the personal discretion of a government official, the less they are based on law.
There is some Criticism of rule of law:-
• Create a ruling elite that has power to manipulate through law.
• Only focuses on prior law and basic structure
• Scholars should focus on informal and institutional constraints that restrict government.
Rule of law mainly has some Pros and cons. This is one of the way by which we can provide proper justice to those people who are backward and can’t fight for their right or because of the lengthy procedure of law come within the scope of judiciary or law. The criticism itself says that due to the indeterminacy in the rules the individual it not fully protected all the time even thought they have individual freedom.
“Anywhere, anytime common people must get a chance to choose!! The choice is freedom- not tyranny, democracy- not dictatorship, the rule of law- not the secrets rule of government”.
Written By:
Medha varshney
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