The rule of law is a set of principles, or ideals, for ensuring an orderly and just society. It refers to a situation in which the people in a society obey its laws and enable it to function properly. 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 King is not the law but the law is king. The origins of the rule of law theory can be traced back to the Ancient Romans during the formation of the first republic; it has since been championed by several medieval thinkers in Europe such as Hobbs, Locke, and Rousseau through the social contract theory.
Indian philosophers such as Chanakya have also espoused the rule of law theory in their own way, by maintaining that the King should be governed by the word of law. The rule of law is directly related to constitutionalism. The originator of the concept of rule of law was Sir Edward Coke the Chief Justice in James I Reign. It is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. Thus, absence of arbitrariness is the soul of the rule of law.
MEANING OF RULE OF LAW
There is no official definition of the rule of law as it connotes different meanings to the parties with different legal minds. Essentially, the rule of law indicates that no one is above the law. In other words, everyone must be obedient to the law. This fundamental legal doctrine is said to be a safeguard against government arbitration as a nation should be governed by law, but not by arbitrary power. However, albeit the doctrine of the rule of law has triumphed in rhetoric globally, there is insufficient evidence to show that it has been effectively practiced in the world.
the United Kingdom, the rule of law, at least historically, has been closely related to A.V. Dicey. Dicey’s perception of the rule of law was introduced in his book Introduction to the Study of the Law of the Constitution. According to Dicey, in line with the concept of Parliamentary Sovereignty, the rule of law is one of the twin pillars of the British Constitution. There are 3 conceptions of the rule of law which had been highlighted by Dicey. The first aspect indicates that no man is punishable or can be lawfully made to suffer in body or deprived of their goods unless they had violated the law which has been established in an ordinary way and applied by an ordinary court. There is also an absolute supremacy or predominance of regular law over arbitrary power and the state could not act in an arbitrary manner which was unlawful.
The second aspect of Dicey’s conception of the rule of law indicates that in terms of the equality before the law, no man is above the law. Regardless of what an individual’s rank or condition is, he is subjected to the ordinary law of the realm and bound to the jurisdiction of the ordinary tribunals. As a result, no matter whether an ordinary private citizen or a state official breached the same law, they would be treated in the same way. It denoted that the state officials were not given any special privileges or protections from the law of the land. Thomas Fuller had also quoted that “Be you ever so high, the law is above you.”
The third aspect denotes that the principles of the constitution are the result of the ordinary law of the land. Dicey stated that Britain had a court-based constitution (in effect, a common law constitution), in the sense that decisions made by the judges directly resulted from the principles of the constitution which concerned the rights of private persons. This reveals Dicey’s belief that the common law affords greater protection to the citizens than a written constitution. Thus, A V. Dicey is one of the most prominent political stalwarts who had elucidated the concept of rule of law in a much larger context.
PRINCIPLES OF RULE OF LAW
Essentially, rule of law comprises of four principles and they are as follows :
- Clarity and accessibility
Laws must be clear and accessible, the people at least ought to know what the laws are.
An important aspect of equality before law is having equal access to justice.
- Participation of people
The third principle, the “right to participate in the creation and refinement of laws”.
- Strong independent judiciary
The fourth principle step from the idea that the judiciary is the “guardian” of the Constitution.
Thus, it can be examined that supremacy of law is the essence of rule of law.
RULE OF LAW : FROM THE PERSPECTIVE OF INDIAN CONSTITUTION
In India, the concept of Rule of law can be traced back to the vedic society. In modern day as well, the scheme of the Indian Constitution is based upon the concept of rule of law. The framers of the Constitution were well familiar with the postulates of rule of law as propounded by Dicey . The Constitution of India has been made the supreme law of the country and other laws are required to be in conformity with it.
The Constitution also ensures an independent and impartial Judiciary to settle disputes and grievances for violation of fundamental rights by virtue of Articles 32 and 226. The very basic human right to life and personal liberty has also been enshrined under Article 21. Article 19(1) (a) of the Indian Constitution guarantees the third principle of the Rule of law (freedom of speech and Expression). No person can be convicted of any offense except for violation of a law in force at the time of the commission of the act charged as an offense is also very well recognized in the Indian Constitution.
In the case of Maneka Gandhi v. Union of India, the Hon’ble Supreme Court established the Rule of Law that no person can be deprived of his life and personal liberty except procedure established by law under Article 21 of the Constitution. Under the Indian constitution the rule of law is incorporated in many of its provisions. For example the object of achieving equality, liberty and justice are reflected in the Preamble to the Indian constitution. Article 14 guarantees the right to equality before law and equal protection of law.
It was very clear that the idea of the Rule of law was not totally perfect. Rule of law has taken charge of administrative powers and understated them with their measures and this concept was adopted by various countries as a watchdog of the constitution. The rule of law is fundamental to international peace and security and political stability; to achieve economic and social progress and development; and to protect people’s rights and fundamental freedoms. It is foundational to people’s access to public services, curbing corruption, restraining the abuse of power, and to establishing the social contract between people and the state.
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