Indian Constitution

Elective Course Assignment

on the topic

Rule of Law: The Need of the Time

Br. Karukaparambil Augustine (Anukul)

Third year Philosophy
Reg No: 3955
 Rule of Law: The Need of the Time
Introduction
Tiffany Madison once said “When the Rule of Law disappears, we are ruled by the whims
of men.” Rule of Law is the basic rule of governance of any civilized democratic polity. The
concept of Rule of Law is that the state is governed, not by the ruler or the nominated
representatives of the people but by the law. The rule of law requires that people should be
governed by accepted rules, rather than by the arbitrary decisions of rulers. These rules
should be general and abstract, known and certain, and apply equally to all individuals.
Everyone, whether individually or collectively is unquestionably under the supremacy of
law. Whoever the person may be, however high he or she is, no one is above the law
notwithstanding how powerful and how rich he or she may be.
For achieving the establishment of the rule of law, the Indian Constitution has assigned
the special task to the judiciary in the country. It is only through the courts that the rule of
law unfolds its contents and establishes its concept. The rule of law pervades the
Constitution as an underlying principle. In fact, the Supreme Court has declared the rule of
law to be one of the basic features of the Constitution. This principle cannot be taken away
even by a constitutional amendment. However, questions are raised about the extent to
which the constitutional promise of the rule of law matches with actual situation in India.
Definition of Rule of Law
Rule of law can be defined simply as a situation in which the law of the land is superior
than the government ruling the land. It is a legal regime which restraints the power of the
government. It does so to ensure that the government does not resort to arbitrary power or
abuse its power in order to rule over the people of the land. As stated by several political
and legal philosophers, democracy cannot be sustained in a country without establishment
of rule of law. There must be a strong judicial system independent and equipped with powers
at the heart of any system based on the rule of law. Rule of Law embodies the doctrine of
supremacy of law. It is basic and fundamental necessity for a disciplined and organized
society. If a government acts according to the principle of rule of law then individual liberty
and right can be protected in better way.
Origin of the notion of Rule of Law
The phrase ‘Rule of Law’ is derived from the French phrase ‘la principe de legalite’ (the
principle of legality) which refers to a government based on principles of law and not of
men. The concept of Rule of law is of old origin and is an ancient ideal. It is in the rules of
war addressed in the ancient Indian epics Mahabharata and Ramayana.. It was also discussed
by ancient Greek philosophers such as Plato and Aristotle. Plato wrote that when law is the
master of the government and the government is its slave, then the country would be in a
good situation where men enjoy all the blessings that the gods shower on a state. Aristotle
also recognized the concept of Rule of law by writing that law should govern and those who
are in power should be servants of the laws. The concept of the Rule of Law is grounded in
the ideas of justice, fairness, and inclusiveness proposed by Aristotle. The concept of rule
of law is also in the foundations of religious thought such as the Ten Commandments and
the Dharma Chakra; and in influential historical documents such as the Magna Carta.
Philosophers and jurists from all corners of the world have molded the philosophical
groundworks and legal content of the Rule of Law.
A. V. Dicey's Concept of Rule of Law
The concept of rule of law given by A.V. Dicey is the most popularly cited and referred
to concept amongst all. This has influenced the makers of our constitution in framing a rule
of law in our country. According to A. V. Dicey, Rule of Law means the supremacy of the
law. In other words, the law is the highest authority of the land in the absence of which
nothing else can prevail. The definition he gave can be understood in three parts which is
given in his book The Law and the Constitution published in the year 1885. They are as
follows:
1. Supremacy of Law: It implies the absolute power of law, dominance and the supremacy
of it. It is opposed to the influence of arbitrary power and wide discretionary power.
2. Equality before the Law: The law administered should be the ordinary rule of law
applicable to all the people equally irrespective of caste and creed or religion. This doctrine
has been included in the Indian Constitution in the form of Article 14.
3. Predominance of Legal Spirit: For the third part, Dicey did not believed in written
constitution. In his idea, the law should be based and formed from the precedents said by
the court of the land. The Constitution is not the source but the consequence of the rights of
the individuals. Here, Dicey emphasized on the role of the courts. Without an authority to
protect and enforce the rights conferred upon citizen, their inclusion in a document etc. is
of little value. Mere inclusion is not authoritative and its provisions might be abridged,
trampled or overlooked.
 However, his third idea is often criticized. In the contemporary world, there is hardly any
country which does not have a written constitution. It would be really hard for a state to
have an unwritten code and rather depend on the precedents given by the court. It would
leave state and its citizens and even the court in a situation of dilemma and no formal law
would be decided in such situation.
Despite having few drawbacks, Dicey’s rule of law is the prevailing concept of rule of
law. It sets certain set of rules and guidelines which would apply to everyone and not
discriminate on the grounds of race, sex or educational or economic differences. If followed
judiciously both by the government and the citizens, many conflicts can be avoided. Also,
it gives major importance to individual and their interests. On the other hand, if not followed,
the country can work arbitrarily and can be dictated by a single person.
Rule of Law in Independent India
Being ruled by Britishers for two hundred years, the constitution framers did not want to
take risk of again being under a powerful or dictatorship type of rule and thus, introduced
the principle of rule of law in Indian Constitution. The Constitution has been made the
supreme law of the state, and other laws in conformity with the Constitution. Many of its
provisions enshrine the concept of rule of law. Thus, In India, law is supreme and every
other thing comes under it. The Constitution of India has defined and declared the common
goals for its citizens as to secure Social, Political and Economic Justice to all citizens of
India. The eternal value of the constitutionalism is the Rule of Law which has three facets
i.e. “Rule by law, Rule under law and Rule according to law”. Rule of Law embodies the
doctrine of Supremacy of law. The Indian conception of the rule of law is both formal and
substantive. It is also seen as an integral part of good governance. In India, the Rule of law
has been considered as the basic feature of the constitution and therefore it cannot be taken
away even by the Parliament.
Rule of Law and Judiciary
In India, the Constitution is supreme and the three pillars of the Government
viz. Legislature, Executive and Judiciary are subordinate to it. These three have been given
separate powers and no institution can interfere with another’s primary work. Also, powers
have been distributed between the Centre ant the State. These arrangements have been in
order to avoid any domination by an institution over others. These arrangements would
allow rule of law to prevail over the country. The parliament and the state legislatives are
elected democratically by the people of the country or a state. The citizen (individual) can
challenge under Article 32 of the constitution if the action of the executive or legislature
violates the fundamental rights of citizens before the judiciary. The Constitution also
provide provisions to assure the independence of the judiciary.
Rule of law and independence of judiciary go hand in hand. There cannot be a Rule of
law without an independent judiciary. Judiciary is an essential part of the life of a nation
like the legislature and executive. No society can exist without the concept of rule of law
and independent mechanism. Judicial review has also been provided to ensure victim gets
justice. It plays a great role towards implementation of rule of law as it not only checks the
constitutionality of law but also limits the administrative actions. All the bureaucrats and
other public authorities come within the scope of judicial review. Through section 247, the
Constitution provides for the establishment of additional courts for better and fast
administration. Therefore, the impartiality and independence of Judiciary depends on the
high standards of the conduct of Rule of law. A few examples of how our judicial system
has upheld the rule of law and ensured justice is clearly seen in the creation of new avenues
seeking remedies for human rights violations through PIL pleas and promotion of genuine
interventions by the judiciary in the areas of bonded and child labour, prostitution, clean and
healthy environment etc.
Advantages of Rule of Law
1. It promotes the freedom of the judiciary: One of the advantages of Rule of Law is that it
promotes the freedom of the Judiciary. This means that wherever the Rule of Law operates
the freedom of the judiciary is enhanced. There is no interference from any quarters.
2. It avoids arbitrariness and dictatorship: Where the Rule of Law operates properly, the
citizens become very much aware of their rights and liberties. This way they are able to
know if their rights are being trampled upon or not. It also helps them to check arbitrariness
on the part of government appointees and the rise of dictatorship.
3. It encourages qualitative life: Where Rule of Law operates to the letter, the quality of life
of the citizens is greatly enhanced. It encourages the creation of the social conditions that
would make it possible for the citizens to enjoy the social order.
4. It enhances the freedom of the individual: Where Rule of Law operates, governments are
expected to allow the expression of divergent views in the society. The government is also
expected to ensure the freedom of the mass media, which includes television, newspapers,
news portals and social media.
5. It preserves the constitution: Another advantage of the operation of Rule of Law is that
it helps to preserve the constitution of the land. The constitution is ultimately the law of the
land and Rule of Law ensures the certainty of the law. This being so, as the Rule of Law
operates, the constitution is also preserved.
Challenges to the Rule of Law in India
Even though our Constitution enshrines the principles of rule of law and our honorable
judges have from time and again reiterated the importance of rule of law in efficient
governance, its implementation at many occasions have failed. Does the rule of law touches
everyone? Whether every citizen of India is benefitted by the rule of law? These questions
remain unanswered. It happens that lawlessness dominates over the society and in many
situations rule of law fails. Indian Judicial system faces the challenges like Corruption in
judiciary, Backlog of pending cases, Lack of transparency, Hardships of the undertrials and
No interaction with the society. Four of India's most senior Supreme Court judges had
warned that democracy is under threat because of the way the court is being run.
The rule of law in the Indian society has not achieved the intended results. The deeply
entrenched values abiding by the Constitution of India have not taken roots in the society.
Corruptions, Terrorism etc. are all antithesis to Rule of Law. Religious majoritarianism in
India has a track record of openly defying court directives, thereby challenging the idea of
the rule of law. Fanaticism often took the shape of street vandalism and even state machinery
was misused for fulfilling its communal agenda. The action of the governments of three
States—Madhya Pradesh, Himachal Pradesh and Rajasthan—aiding karsevaks in the
infamous Babri Masjid demolition drive was held by the Supreme Court as an act offending
secularism. The saga continues even now when the demand for construction of a Ram
temple in Ayodhya is in the air even as the matter is seized by the top court.
The Supreme Court, as the guardian of the Constitution, faced a great challenge in the
Sabarimala case. When populism and electoral politics overweigh constitutionalism, the
nation falls into a deep crisis. The legal relevance of the Sabarimala defiance has a historical
and political facet. William B. Hornblower, the American jurist, asked way back in 1912:
“Are we to continue to be a government of law administered by the courts, or are we to
become a government of agitators by whom law and the courts are only to be tolerated so
long as the law and the courts are in accord with the popular wishes of the moment?” There
have been violations of fundamental rights as well. For e.g. The discrimination of eunuchs
based on their class and gender makes the community one of the most disempowered groups
in Indian society.
Conclusion
The rule of law is an idea about law, justice, and morality. It considers what laws, norms,
rules, procedures, systems, and structures should be and what they should not be. The law
governs people as well as the government itself. The common law traditions, the
Constitution of India, and the role of the judiciary have contributed to the development of
rule of law. It is the foundation of good governance. It is basic and fundamental necessity
for a disciplined and organized society. If a government acts according to the principle of
Rule of law then individual liberty and right can be better protected. The basic purpose of
the law is the quest for the Justice which should be administered without fear and favor.
Democracy and rule of law are interdependent and one cannot flourish without the other.
India is world's largest democracy. However, the prevalence of rule of law is generally under
threat here. It is imperative that efforts must be made to further nurture and preserve a rule
of law society in India. Otherwise, our fundamental identity as a democracy will be seriously
undermine. To quote Caroline Kennedy “The bedrock of our democracy is the Rule of Law”.
Therefore, need of the hour is to correct its implementation in order to deliver justice to
everyone and ensure that law is above all.