The concept of Rule of Law Constitution

Dicey's 'Rule of Law' has been adopted and incorporated in Indian Constitution. In India every organ of the administration is regulated by the 'Rule of Law'. The concept of 'Rule of Law' exists in India by virtue of the following features:- 1. Supremacy of the Constitution: Indian Constitution starts with the Preamble which secures to all its citizens, justice, liberty and equality. These concepts are enshrined in Part III of the Constitution as fundamental rights. In India the Constitution is supreme and all the three organs of the Government, i. e. , legislature, executive and the judiciary are subordinate to it. If executive abuses the powers conferred on it or if the action is malafide then the same can be quashed by the Courts.

Judicial Review (Article 13): Article 13 provides for the judicial review of all laws whether past or future. This power is exercisable by the Supreme Court as well as by the High Courts under Articles 32 and 226 respectively. The Courts can declare a law unconstitutional if it is inconsistent with the rights conferred by Part III of the Constitution. In Indira Nehru Gandhi Vs.Raj Narain28, the Supreme Court invalidated clause (4) of Article 329-A inserted in the Constitution by 39th Amendment to immunize the election dispute of the office of Prime Minister from any kind of judicial review. Khanna and Chandrachud JJ. held that Article 329-A (4) violated the concept of basic structure. Mathew, Ray and Beg, JJ. also held that Article 329-A (4) offends the concept of 'Rule of Law'. 3. Equality before Law (Article 14): Article 14 provides that the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India.

Equality before law implies the absence of any special privilege in favour of any individual. Equal protection of laws implies equal protection of all alike in the same situation and under like circumstances. If the State action is arbitrary or irrational, it would be treated as being against Article 14. In Maneka Gandhi Vs. Union of India,29 Supreme Court held that equality is antithetic to arbitrariness. Article 14 permits reasonable classification but prohibits class legislation.

The Government and public authorities are subject to the jurisdiction of ordinary Courts of law and suits for breach of contract and torts committed by any public authority can be filed in ordinary Courts to claim damages from the State Government or the Union Government for acts of their employees. In Kalyan Chandra Sarkar Vs. Rajesh Rajan30, a Three Judge Bench of Apex Court ruled that MPs/ influential politicians were not above the law and while in custody they were to be kept in a prison cell like any other normal prisoner.

4. Six Fundamental Freedoms (Article 19): Article 19 guarantees six fundamental freedoms to the citizens of India-freedom of speech and expression31, freedom to assemble peacefully and without arms32, freedom to form associations or unions33, freedom to move freely throughout the territory of India34, freedom to reside and settle in any part of the territory of India35 and freedom to practice any profession, or to carry on any occupation, trade or business36. But these freedoms are not absolute.

These are subject to reasonable restrictions which may be imposed by the State provided these restrictions have been imposed under a valid law and on the grounds mentioned in clauses 2 to 6 of Article 19. 5. Right to Life and Personal Liberty (Article 21): It provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The scope of this Article is very wide. It includes right to live with human dignity37, right to reputation38, right to shelter39, right to livelihood40, right to privacy41, right against telephone tapping42, right to go abroad 43etc.

The whole concept of 'Prison Jurisprudence' is based upon Article 21. 6. Rule of Law as a feature of Basic Structure: In Kesvananda Bharti Vs. State of Kerala44, some of the Judges constituting majority were of the opinion that the 'Rule of Law' is an "aspect of the doctrine of basic structure of the Constitution, which even the plenary power of Parliament can not reach to amend. " 7. Public Interest in Security of Social Welfare: The 'Rule of Law' notion as evolved by the Indian Courts extends to the protection of social welfare as well.

In People's Union for Democratic Rights Vs. Union of India (Asiad Case)45, Supreme Court held that the 'Rule of Law' does not mean that the protection of law must be available to a fortunate few but the poor too have civil and political rights and 'Rule of Law' is meant for them also in reality. In this way, under the concept of 'Rule of Law', the idea of justice is no more confined to the rights of individual only but has been extended to the socio-economic spheres as well. 8.

National Policy of Reservation for Backward Classes and Constitutional viability of creamy layer: In the Mandal Commission Case46 the Supreme Court has upheld the national policy of reservation in favour of socially and educationally backward classes but at the same time has also required identification and exclusion of creamy layer for extension of the reach of 'Rule of Law' to the disadvantaged section of people. The position of the concept of 'Rule of Law' in India is very accurately summarized by Prof. Upendra Baxi.

According to him, "The 'Rule of Law' means that the Government should not exercise arbitrary power. The power should be used for the purposes for which it has been conferred. It also means that the power should be exercised within the statutory ambit. Mere negation of arbitrariness is not enough to preserve 'Rule of Law' values. Indian Courts have gone further to preserve and insist on specific positive contents of the 'Rule of Law' obligations. These obligations include the principles of natural justice which have to be followed not only in quasi-judicial actions but also in purely administrative actions.

In addition, access to information as to the grounds of decision has an important place in Indian Judiciary. The Courts have insisted from time to time that the administrative powers should be accompanied by reasons, although the exact status of the obligation to give reasons is as yet indeterminate. "47 The Courts are making concrete efforts to establish a society based on 'Rule of Law' in India by insisting on the 'fairness' in every aspect of the exercise of power by the State. Some of the decisions of the Supreme Court are clear indicators of this trend. In Sheela Barse Vs.

State of Maharashtra48, the Court insisted on fairness to women in police lock-up and drafted a code of guidelines for the protection of prisoners in police custody, specially female prisoners. Such efforts by Courts can be seen as a high benchmark of judicial activism for firmly establishing the concept of the 'Rule of Law' in India. Conclusion We can say that in a democratic society 'Rule of Law' is an accepted principle. With the emergence of welfare state the increase in the powers of administration is inevitable. Therefore, it appears that there is a conflict between 'Rule of Law' and Administrative Law.

However, this conflict is more apparent than real. Administrative Law provides for delegation of powers to administration. Further administration enjoys vast discretionary powers. So the people need protection against any arbitrary use of these powers. There arises the problem to bring the administrative powers under the 'Rule of Law' and the main function of the Administrative Law is not to exclude the 'Rule of Law', rather it is to bring the modern administration under the principle of 'Rule of Law' along with its various functions.

Apart from this we can't ignore that the controlled economy has come to stay with us, whatever be the extent of controls. It will lead to multifarious, varied and complex administrative actions. In the light of all these facts the 'Rule of Law' becomes all the more important. The same idea was very beautifully expressed by Mr. Justice P. B. Mukerjee (Judge of Calcutta High Court) in the following words: "A nation that does not know how to respect the 'Rule of Law' and the judiciary as its final interpreter, is a nation that is not fit for the democratic way of life.