Rule of Law

Rule of law (“la principle de legalite”)

Dicey's formulation:

Formulation of the concept of rule of law covers up three main principles that are considered classic expositions and there is nothing out dated as misunderstood about the formulation although expounded before more than hundred years. As contained, it is:

“The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, or prerogative, or even wide discretionary powers, authorization on the part of the Government.”

Dicey’s formulation conveys that the “State should not possess wide discretionary powers”; for discretionary powers, if entrusted to the officers of the government may leave scope of powers being “abused and misused” and consequently subject was bound to face arbitrariness. Second principle that was expounded was that “everybody should enjoy equal status irrespective of privileges and subjected to the same set of laws” And lastly, the “rights and obligations should be regulated by courts on the basis of Custom and precedents (tradition) adopted by the people”. Dicey stated in his formulation, these three principles in view of national situation and compared the system of France and England. In France, many tribunals on different subject have come to be recognized, and therefore, the crown in England enjoyed special immunity of law and the Crown under the guise of constitutional maxim that “king can do no wrong” could ignore many statuses. Subsequently, the immunity was weakened and it was propounded that the "king is under no men, but under law and god”.

There prevailed the discussion and debate on the principle of Droit administruift, but England recognized the need of administrative law, which is now firmly established.

India:

Observation, interpretation and the status:

Indian Constitution is regulating the rule of law. And ADM Jabalpur case is a tainted justice.

In case of Indira Nehru Gandhi vs. Raj Narayan it was observed:

I find it impossible to subscribe to the view that the Preamble of the Constitution holds the key to its basic structure or that the preamble is too holy to suffer a human touch. Constitutions are written, if they are written in the rarefied atmosphere of high ideology, whatever be the ideology. Preambles of written Constitutions are intended primarily to reflect the hopes and aspirations of people. They resolute the ideal, which the Nation seeks to achieve, the target, not the achievement. In parts, therefore, they are metaphysical like slogans.

As such the rule of law runs through every golden thread of the Constitution and to say that it is like a slogan, or like a corporate mission statement, appears to be totally “unsound and motivated”. Rather a tainted judgment. It is expected of the parliamentarians and judiciary to preserve the rule of law, the dignity of the sacred Constitutional document, and also the precious fundamentals enshrined therein. The law should have been carved out in such a fashion that the younger judicial generation may be inspired to follow than to contemptuously condemn. And, really speaking, no Parliamentarian or any judge has any authority to go beyond the Constitution and especially, the oath of the office. Going beyond the oath and administering tainted justice is nothing, but a sheer fraud on judicial power and a robbery of rule of law. Championing supersession of genius orbit could not have been the consideration and Rule of law could have been prime consideration. “Political loyalty”, while administrating justice lays dangerous impact over the Constitutional spinal.

Rule of law is antithesis of arbitrariness. Plato believed the concept of will, but subsequently after experience, modified the position and expounded the test of "government under law" and ultimately expressed the insistence on rule.

H.W.Jones formulated three principles keeping in view the Dicey's formulation, which is changed to certain extent. According to him the rule of law should cover up the three principles as followed.

1) In a decent society, it is unthinkable that government or any officer of government possesses arbitrary power over the person or the interests of the individual.

2) All members of society, private persons and governmental officials alike, must be equally responsible before the law, and

3) Effective judicial remedies are more important than abstract constitutional declarations in securing the rights of individual against encroachment by the state.

In every democratic country, the people have expected its government to run its business in a civilized manner particularly under the set of well-defined rules and lastly certain limited discretionary powers that may be exercised. The rule of law is accepted, almost in all countries, to pursue and always practice the dominant object of civilization. Without the rule of law the government itself would be chaos and absurdity.

In the language of Shri Aurbindo from Human cycle.

The national unit is not formed and does not exist merely for the sake of existing. Its purpose is to provide a large mound of human aggregation in which the race, and not only classes and individuals may move towards its full human development. So long as the labour of formation continues, this larger development may be held back and authority and order be accepted as the first consideration, but not when the aggregate is sure of its existence and feels the need of inner expansion. Then the old bonds have to be burst; the means of formation have to be discarded as obstacles to growth. The Liberty becomes the watchword of the race.

The ecclesiastical order, which suppressed liberty of thought and new ethical and social development, has to be disposed of it despotic authority, so that man may be mentally and spiritually free. The monopolies wand privileges of the king and aristocracy have to be destroyed, so that all may take the share of the national power, prosperity and activity... for liberty is insufficient, justice also necessary and becomes a pressing demand, the cry for equality arises. Certainly absolute equality is non-existent in this world, but the world was aimed against the unjust and unnecessary inequalities of the old social order. Under a just social order, there must be an equal opportunity, unequal treatment training for all to develop their faculties and to use them, and so far as may be, unequal share in the advantages of the aggregate life as the right of all who contribute to the existence, vigour and development of that life by the use of their capacities. The individual tries to protect the liberty whereas the State tries to impose law and order a leading command, which should be based on fair procedure only.

Supreme Court observed that the rule of law is a golden thread runs through the every provision of the Constitution. AN Ray observed that the preamble of the constitution shows the hopes and aspirations and there is nothing like rule of law in it. Totally unsound statement in the judgment had to be withdrawn as can be seen in subsequent decided case observing that there cannot be any rule of law other than the constitutional rule of law. Rule of law is better described by Justice Khanna in A.D.M. Jabalpur case. A minority view of justice Khanna was stamped as honest view preserving the dignity, ethos and values for the Constitution.

The Preamble of the Constitution provides that “we the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens:

Justice, social, economic and politic, liberty of thought expression, belief, faith and worship, Equality of status and opportunity, Fraternity assuring the dignity of the individual and the unity and integrity of the nation...”

In the constitutional background let us see what is the development of rule of law in the country. Article 14 of the Constitution guarantees the equality as between the subjects and equal protection of law and the meaning and philosophy contained in that article must refer to the preamble of the Constitution which says "equality of status and opportunity". That phrase everybody is created equal shall derive advantage to all in the matter of status and for developing the own viability. However, subject to certain limitations, which may be imposed by the enacted law, the people can enjoy the guarantee.

The courts have accepted the test of reasonable classification based on intelligible differentia, and therefore, all citizens are not made subject to certain classification. Similarly, the Honourable the Supreme Court propounded a new principle by interpretative process which according to Court lay new bare. This principle also must be held good. The fairness is the order of the day and arbitrary discretion definitely results into negation to justice. Some jurists belonging to the old school severely criticized the new bare laid, but then the Supreme Court has reinforced the principle in several subsequent decisions.

According to E. P. Royappa:

“The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now what is the content and reach of this great equalizing principle? It is a founding faith, to use the words of Bose a way of life, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate it’s all embracing scope and meaning, for to do would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimension and it cannot be cribbed, cabinet and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antipathetic to arbitrariness. In fact equality and arbitrariness are sworn enemies, one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in that it is unequal both according to political logic and constitutional law and therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violate of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. they require that State action must be based on allied relevant principles applicable alike to all similarly situated and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action as distinguished from motive inducing from the antechamber of the mind is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mollified exercise of power and that is hit by articles 14 and 16. Mollified exercise of power and arbitrariness are different lethal rotations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.”

The Courts have constantly tried to protect the liberties of the people and assumed powers under the Constitution for judicial review of administrative actions. The discretionary powers have to be curbed, if they are abused or misused. The socio-politic Institution need not cry, if the courts do justice and perform its substantial role. That is the essence of justice. The trend is to read the social justice and to translate it in reality. Welfare State has to discharge its duty fairly without any arbitrary and discriminatory treatment. Courts laid down the standard of reasonableness in Governmental action.

Continues..

Author: Hemang D. Rana, Advocate

corporatearmour@gmail.com : 9998726651