Rule of Law Paper Example

In India Rule of Law and Fundamental Rights The Fundamental Rights that have been enshrined in the Constitution, Part III, have a restrictive effect on the legislative power of the Government. These fundamental rights include freedom of speech, freedom of expression, freedom of association, freedom of movement, freedom of residence, freedom of property, freedom of profession, and freedom of personal liberty. These fundamental have been made a part of the Constitution to guarantee and promote freedom of the citizens and to establish principles of State according to the Rule of Law.ADM Jabalpur v. Shivkant Shukla5 is a landmark judgement with respect to Rule of Law. In this case, the issue that had to be addressed by the Apex Court was that whether there was any other source of rule of law except for Article 21. The question arose in context of suspension of fundamental rights guaranteed under Articles 14, 19, 21 and 22. The majority of the bench answered in the negative. But Justice H. R. Khanna dissented from the majority judgement and observed that “Even in absence of Article 21 in 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…. ” The concept of Rule of Law is based on the principle that fundamental rights of a citizen should be protected from arbitrary infringement. The Universal Declaration of Human Rights, 1948, has mentioned in its Third Preamble that Human Rights should be protected by the Rule of Law. The Supreme Court upheld this corollary in the landmark case Keshvananda 3 Cf. Stark v. Wickard, (1994) 321 US 288 (310) 4 India v. Rajnarain, A. 1975 SC 2299 5 ADM Jabalpur v.

Shivkant Shukla, 1976 AIR 1207 Bharti v. State of Kerala6, by ruling that the Constitution consists of certain essential features which are beyond the amending power of the Legislative bodies even if the requisite majority for such change is present. This list of essential features also includes the Rule of Law. This principle explicitly reiterated by the Apex Court again in Indira Nehru Gandhi v. Raj Narain7, where it was held that the Rule of Law was one of the ‘basic’ features of the Indian Constitution which could not be taken away by a mere Constitutional amendment. Rule of Law and Government

If Rule of Law is held applicable to the powers of the government, it would require every act of government authority which would otherwise be fundamentally wrong (such as taking a man’s land), or which infringes a man’s constitutional liberty (as by refusing him planning permission), must be able to justify its action as authorized by law which would require legislative authorization by an Act of Parliament or other elected bodies. The secondary meaning of rule of law is that the government should be conducted within a framework of recognized rules and principles which restrict discretionary powers of government officials and agents.

It was observed by the Apex Court in Som Raj v. State of Haryana8 that “The absence of arbitrary power is the primary postulate of Rule of Law upon which the whole constitutional edifice is dependant. Discretion being exercised without any rule is a concept which is antithesis of the concept. ” In India, the Constitution has provided a setup for a limited government. Any law that breaches constitutional restrictions would be held void by the Courts9. Secondly, the administrative power of the Executive to form ordinances is limited by restrictive duration and situations triggering exercise of such power.

This restriction has been laid down in Articles 123 and 213 of the Indian Constitution. It was also held in Kharak Singh v. State of U. P. 10, that the Executive action needs to be supported by a valid law. It would be void without such support especially if it violates any fundamental rights. 6 Keshvananda Bharti v. State of Kerala, AIR 1973 SC 1461 7 Indira Nehru Gandhi v. Raj Narain, AIR 1982 SC 149 8 Som Raj v. State of Haryana, 1990 AIR 1176 9 Medical and Eductaional Charitable Trust v. State of Tamil Nadu, (1996) 3 SCC 15 10 Kharak Singh v. State of U. P. , AIR 1963 SC 1295 Independence of Judiciary

The third meaning of rule of law emphasises upon the independence of the judiciary and highlights the supremacy of Indian Courts. The importance of Courts, as established by the Rule of Law, has also been propounded by the Supreme Court in Union of India v. Raghubir Singh11 that “It is not a matter of doubt that a considerable degree that governs the lives of the people and regulates the State functions flows from the decision of the superior courts”. The judiciary also maintains its independence by way of keeping appointment of judges independent. Judges of the Supreme Court and High Court are appointed by the President in

‘consultation’ with relevant judges of these courts. 12 It has also been established by the Supreme Court in In Re: Presidential Reference,13 that judges of the higher judiciary are in essence appointed by the Judiciary itself. Conclusion Although, complete absence of discretionary powers, or absence of inequality are not possible in this administrative age, yet the concept of rule of law has been developed and is prevalent in common law countries such as India. The rule of law has provided a sort of touchstone to judge and test the administrative law prevailing in the country at a given time.

Rule of law, traditionally denotes the absence of arbitrary powers, and hence one can denounce the increase of arbitrary or discretionary powers of the administration and advocate controlling it through procedures and other means. Rule of law for that matter is also associated with supremacy of courts. Therefore, in the ultimate analysis, courts should have the power to control the administrative action and any overt diminution of that power is to be criticized. The principle implicit in the rule of law that the executive must act under the law and not by its own fiat is still a cardinal principle of the common law system, which is being

followed by India . In the common law system the executive is regarded as not having any inherent powers of its own, but all its powers flow and emanate from the law. It is one of the vital principles playing an important role in democratic countries like India. There is a thin line between judicial review and judicial activism. Rule of law serves as the basis of judicial review of administrative action. The judiciary sees to it that the executive keeps itself within 11 Union of India v. Raghubir Singh, 1989 AIR 1933 12 Article 124(2), 217 13 In Re: Presidential Reference, AIR 1999 SC 1

the limits of law and does not overstep the same. Thus, judicial activism is kept into check. However there are instances in India where judiciary has tried to infringe upon the territory of the executive and the legislature. A recent example of this would be the present reservation scenario for the other backward classes. The judiciary propagated that the creamy layer should be excluded from the benefits of the reservation policy, whereas the legislature and the executive were against it. As mentioned before Dicey’s theory of rule of law has been adopted and incorporated in the Indian Constitution.

The three arms judiciary, legislature and executive work in accordance with each other. The public can approach the high courts as well as the Supreme Court in case of violation of their fundamental rights. If the power with the executive or the legislature is abused in any sorts, its malafide action can be quashed by the ordinary courts of law. This can be said so since it becomes an opposition to the due process of law. Rule of law also implies a certain procedure of law to be followed. Anything out of the purview of the relevant law can be termed as ultra vires.