CRITICAL ANALYSIS OF ‘RULE OF LAW’ AND IT’S APPLICATION IN INDIAN JUDICIARY

THIS ARTICLE WAS WRITTEN BY ARNAV SHASTRI, A STUDENT OF SYMBIOSIS LAW SCHOOL, PUNE.

“We are in Holy Orders and recognize only one law, the law of Dharma the law of life embracing, sustaining and unifying all activities of life”:- Shankaracharya Adi Shankara

WHAT DO WE UNDERSTAND BY ‘RULE OF LAW’?

The concept of the Rule of Law is that the state is governed, not by the ruler but by the elected representatives by the people of India itself in accordance to the rule of law. A nation that enshrines the rule of law would be one wherein the basic norm; of the country, or the basic and core law from which all other law derives its authority is the supreme authority of the state. The laws derived from the ‘Grundnorm’ (basic law) control the king or the members of the republic and their powers are regulated by the statute. “The king isn’t the law, but the king is the law”[1]

The first mentioning and origin of the rule of law can be seen way back in ancient Rome. In addition to this many medieval thinkers in Europe, such as Hobbs, have since supported it, through the social contract theory. By maintaining that the King should be ruled by the word of law, Indian thinkers such as Chanakya have also promoted the principle of the rule of law in their own way.

‘Rule of Law’, the term is credited to the formal root of the term which is derived from the ‘la Principe de legalite’ French process, which means the legality principle.

The most credible theory was propounded by A.V. Dicey which also remains one of the most popular ones to get an understanding of the principles for the Rule of Law. The theory by Dicey consisted of three major organs which served as pillars to his reasoning which had a view that the rule in a state shall be on the basis of the law of the state rather than a particular individual.

The three pillars by Dicey can be interpreted in parlance to the Indian Judiciary and Legal Systems in the following manner and classification:-

1)PREVAILED SUPREMACY OF RULE OF LAW

The trails to the Rule of Law in Indian history dates back to the Upanishads, Ramayana, Mahabharata, and other historical documents and texts. This has consistently been the fundamental comprehension of the standard of law that propounds that the law rules over all individuals including the people managing the law. The officials need to give reasons that can be supported under the law while practicing their forces to make and direct the law.

2) EQUALITY BEFORE LAW

According to Dicey a special law and special court violate the principle of equality of any state. Equality before the law is a long-written principle in the Indian constitution. The constitution strives to provide both, equity and equality. Law cannot discriminate among people on the basis of sex, religion, race, and so on. The aforementioned statement is protected and validated by Article 14 of the Indian constitution and the Universal Declaration of Human Rights under the Preamble and Article 7. No matter what the situation is, the constitution should be considered the supreme law of the land. If any organ of the government tries to bring an action that is outside the authority given to it by the constitution, the said act should be declared unlawful and hence, void ab initio.[2]

3)THE GREATER LEGAL SPIRIT

While adding this as an important prerequisite for the rule of law, Dicey accepted that it was lacking to just remember the over two standards for the constitution of the country or in its different laws for the state to be one wherein the standards of rule of law are being followed. There should be an implementing authority Dicey was of the view that such authority can be found in the court of law. The courts enforce the laws and also safeguard the rights of the citizens of a nation. Owing to this fact they should be free from any kind of external influence or hindrances. Along these lines, the opportunity of the legal spirits turns into a significant column to the rule of law.

Even today the rights of the citizens and their freedom are safeguarded by the Rule of Law. This also protects a nation from anarchy as people do care about the legal consequences of their actions and keeps a check on an autocratic government as well.

RULE OF LAW IN INDIAN JUDICIARY

India’s legal systems have been derived from the principles of the Common Law of the British statute. This too is based on the Rule of Law which serves as a premise for the same. It was believed by Dicey that as for the British jurisprudence, there was no requirement for an exclusive law to check the arbitrary powers of the government.[3] Rule of Law would do enough to keep this power in check. While India likewise acknowledges and keeps the idea of characteristic law, there are formal and composed laws to guarantee consistency.

Article 13 of the Indian constitution is an example where the Rule of Law was upheld. It said that any laws which are inconsistent with the basic structure of the constitution or cause a breach of fundamental rights can be struck down and held void. Article 21 gives a further check against discretionary chief activity by expressing that no individual will be denied of his life or freedom besides as per the technique set up by law.

Article 14 guarantees that all residents are equivalent and that no individual will be segregated based on sex, religion, race, or spot of the birth, at long last, it guarantees that there is a partition of forces between the three wings of the public authority and the chief and the governing body have no impact on the judiciary. It was clearly stated by the Supreme Court in Maneka Gandhi v. Union of India[4] that Article 14 strikes against the arbitrary actions of the state and ensures fairness. By these techniques, the constitution satisfies all the prerequisites of Dicey’s hypothesis to be perceived as a nation adhering to the Rule of Law.[5]

In the landmark case of Punjab v. Om Prakash[6], the Supreme court held that “In our sacred framework, the focal and most trademark highlight is the idea of rule of law which implies, in the current setting, the authority of law courts to test all authoritative activity by the norm of legitimateness. The authoritative or chief activity that doesn’t fulfill the guideline will be saved if the distressed individual brings the matter into notice.”

While the hearing of the case, Secretary, State of Karnataka and Ors. v. Umadevi and Ors,[7] the Constitution Bench set some hard boundaries in the accompanying terms which stated that there should be strict adherence to fairness in open business as it constitutes an important element of our constitution. The court further added, “….. a court would positively be debilitated from passing a request maintaining an infringement of Article 14 or in requesting the ignoring of the need to follow the prerequisites of Article 14 read with Article 16 of the Constitution.”

 In another case of Satvant Singh Sawhney v. D Ramarathanana[8], the Supreme Court stated that if any activity is performed to the bias of an individual is against the principles of the Rule of Law. The activity/ action must be stopped by the person in authority to the earliest.

For one instance when there was a question to the validity of the fact that Article 14, 21, and 22 stands suspended during the time of an emergency (A D M Jabalpur v. Shivkanth Shukla[9]), the Supreme Court of India reinforced by iterating a different opinion than the widely thought result which was in a negative direction. The court went on to observe that,

“Even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning…Rule of Law is now the accepted norm of all civilized societies”

The most valid evidence of the Rule of Law in the Indian legal system can be witnessed in Kesavananda Bharati v. Territory of Kerala[10], the Supreme Court held that the Rule of Law is a fundamental piece of the essential design of the constitution and as such can’t be corrected by any Act of Parliament, in this manner demonstrating how the law is better than any remaining authority of men.

APPLICATION OF THE DOCTRINE IN INDIA

Studies have frequently kept up that the Rule of Law in India is just a hypothesis with no functional application. While it can’t be rejected that the nation is one where debasement spins out of control and as indicated by the 2012 World Justice Project which checks and reports the democratic openness and functioning of the government. However, the standard of law that exists on paper doesn’t generally exist practically speaking. With regards to procedural viability, India tolls ineffectively. India ranks 83rd and 96th in categories of ‘absence of corruption’ and ‘law and order’ around the world.[11]

Notwithstanding the issue looked at in India because of debasement in the lawmaking and equity conveyance frameworks, there additionally exists the issue of old laws actually being set up. India doesn’t receive a ‘nightfall’ statement in its laws and post-autonomy the Indian Independence Act given that all laws existing under the pioneer rulers would keep on existing under the new framework except if unequivocally denied by the parliament.

While this did provide the state with a firm basic system of laws, thereby preventing a situation of anarchy within the immediate aftermath of independence, a number of these laws were drafted to suit the environment of those times and they become hard to interpret in the current environment. This results in ambiguity and endless litigation in an effort to interpret the provisions. Quite possibly the main variables adding to the upkeep of the Rule of Law is the action of the courts in the understanding of the law. It is appropriately repeated by the Supreme Court for the situation Union of India v. Raghubir Singh[12] that it’s anything but a matter of uncertainty that an extensive degree that administers the existences of individuals and directs the State capacities streams from the choice of the prevalent courts.

In the case of Maneka Gandhi v. Union of India, the court stated that arbitrary use of power against citizens would never suppress and breach the fundamental rights bestowed to them by the constitution. In no way will the Rule of Law and basic motives of the constitution will be hindered. A few rules have been set somewhere near the court to check the training yet at the same time there have been various examples of honor killing revealed and the majority have to a great extent deliberately ignored the choice of the Apex Court. The Sabarimala case[13] decision illuminates the tact of men in maintaining the headings given by the Supreme Court just forthright on the off chance that they are similar to the conviction they hold. The court had permitted ladies of bleeding age for example between 10-50 years to enter the sanctuary premises for worship. The Lord Ayappa sanctuary has customarily banned all ladies of discharging age from going into the place of worship. After the decision gigantic dissent was completed, tere were likewise events of brutality against ladies who attempted to enter the sanctuary. The ladies were denied their established option to love and the standards of fairness were abused even after the training was announced as illegal by the Apex Court.[14]

CONCLUSION

Thus, after going through the history, facts, and cases which involved the application of the ‘Rule of Law’  we can conclude that the very concept in itself has evolved over the period of time.  This evolution has been due to the dynamic nature of laws in the world. There has been a wide change in the perception of the doctrine where it has been established as a mandatory pillar for all court judgments.

Taking a look at the Indian Legal System one could say that the Rule of Law as a doctrine was not followed in stricto sensu. India with the Rule of Law as a doctrine has come a long way witnessing various judgments which revolutionized the application of the doctrine. Having said that it is to be kept in mind that the courts and Law Commissions  are striving towards the smooth functioning of the judiciary in order to uphold the sanctity of the constitution and the adherence to the Rule of Law

REFERENCES

• Hushnavar S. on (March 2020) in his article Rule of Law on Legal Services of India available at,http://www.legalservicesindia.com/article/1403/Rule-of-Law-in-India.html
• Tiwari J.on (October 2017)in her article Introduction to Rule of Law on Blog I Pleaders available at, http://www.legalservicesindia.com/article/1403/Rule-of-Law-in-India.html
• Paine T. in his article ‘Common Sense’, available at < http://www.gutenberg.org/files/147/147-h/147-h.htm>
• ‘Kelsen’s Theory of Grundnorm’, Mridushri Swarup available at,http://manupatra.com/roundup/330/Articles/Article%201.pdf
• Nath P. in his article The Sabrimala Review on the Leaflet available at, https://www.theleaflet.in/sabarimala-review-the-majority-judgment-sets-a-dangerous-precedent-it-undermines-the-rule-of-law/
• Kumar B. in her article “Rule of Law” on Lawctopus available at, https://www.lawctopus.com/academike/rule-of-law-in-india/#:~:text=The%20Constitution%20of%20India%20intended,their%20authority%20from%20the%20constitution
• ‘Rule of Law in India’, <http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=61fb07af-8c80-4868-b707-b9939e9dae87&txtsearch=Subject:%20Administrative%20Law
• https://plato.stanford.edu/entries/rule-of-law/
• Paras Nath Singh in his article on the Sabrimala verdict in ‘The Leaflet’ available at, https://www.theleaflet.in/sabarimala-review-the-majority-judgment-sets-a-dangerous-precedent-it-undermines-the-rule-of-law/#:~:text=In%20the%20Sabarimala%20case%2C%20the,writ%20petitions%20against%20the%20judgment.&text=of%20fundamental%20rights.-,It%20is%20well%2Dsettled%20law%20that%20a%20judgment%20cannot%20be,dismissed%20on%20this%20ground%20alone.

CASES CITED

• Punjab v Om Prakash, 1961 AIR 1782
• Satvant Singh Sawhney v. D Ramarathanana, 1967 AIR 1836
• Secretary, State of Karnataka and Ors. v. Umadevi and Ors, (1979) 3 SCR 937
• A D M Jabalpur v. Shivkanth Shukla, AIR 1967 SC 1207
• Maneka Gandhi vs Union Of India, 1978 AIR 597
• Indian Young Lawyers Association & Ors vs. The State of Kerala & Ors. Sabarimala Temple, (2019) 11 SCC 1
• Union of India v. Raghubir Singh, 2006(2) SCC 740

[1] Hushnavar S. on (March,2020) in his article Rule of Law on Legal Services of India available at,http://www.legalservicesindia.com/article/1403/Rule-of-Law-in-India.html

[2] Paine T. in his article ‘“Common Sense’, available at < http://www.gutenberg.org/files/147/147-h/147-h.htm>

[3] Upendra Baxi in his paper ‘Rule of Law in India’ available at, http://www.scielo.br/scielo.php?script=sci_arttext&pid=S1806-64452007000100002&lng=en&nrm=iso&tlng=en

[4] 1978 SCR (2) 621

[5] ‘Kelsen’s Theory of Grundnorm’, Mridushri Swarup available at,<http://manupatra.com/roundup/330/Articles/Article%201.pdf>

[6] 1961 AIR 1782

[7] (1979) 3 SCR 937

[8] 1967 AIR 1836

[9] (1976) 2 SCC 521

[10] (1973) 4 SCC 225

[11] Kumar B. in her article “Rule of Law” on Lawctopus available at, https://www.lawctopus.com/academike/rule-of-law-in india/#:~:text=The%20Constitution%20of%20India%20intended,their%20authority%20from%20the%20constitution

[12] 2006(2) SCC 740

[13] (2019) 11 SCC 1

[14] Paras Nath Singh in his article on the Sabrimala verdict in ‘The Leaflet’ at, https://www.theleaflet.in/sabarimala-review-the-majority-judgment-sets-a-dangerous-precedent-it-undermines-the-rule-of-law/#:~:text=In%20the%20Sabarimala%20case%2C%20the,writ%20petitions%20against%20the%20judgment.&text=of%20fundamental%20rights.-,It%20is%20well%2Dsettled%20law%20that%20a%20judgment%20cannot%20be,dismissed%20on%20this%20ground%20alone.