Topic > Rule of law in India

The rule of law has always been considered one of the constituent elements on which modern society is based. Derived from the French phrase 'La Principe de Legality', which translates to principle of legality, it refers to a government based on the principles of law and not on men. The concept of the rule of law is that the state is governed not by the ruler or representatives appointed by the people, but by law. A country that enshrines the rule of law would be one in which the country's Grundnorm, or the basic and fundamental law from which all other laws derive its authority, is the supreme authority of the state. The monarch or representatives of the republic are governed by laws derived from Grundnorm and their powers are limited by law. The King is not the law but the law is the king. Say no to plagiarism. Get a tailor-made essay on "Why Violent Video Games Shouldn't Be Banned"? Get Original Essay The basic essence of the rule of law is that no one is above the law of the land, be it the king, the legislators, the judiciary, etc. At this point it is important to distinguish between rule of law and rule by law. The rule of law is above political tug of war. The idea is that the law should be above every person and agency, strong or weak, rich or poor, etc. Instead, Rule by law involves an idea whereby the law used an instrument of political power with the aim of controlling citizens but seeks to never allow a law to be used to control the state. Historical evolution of the rule of law Although AV Dicey's contribution to the rule of law, even today, remains fundamental[4], the doctrine can be traced back to the ancient civilizations of Greece, India, the Roman Empire and China. The ancient Greeks initially viewed male rule as the best way to govern the empire.[5] Plato, who was the founder of the first institution of higher learning in the Western world[6], promoted the idea of ​​a benevolent monarchy in which there was a philosopher king who was above the law[7]. However, in doing so, he still hoped that the best men would respect existing laws and regulations[8]. Aristotle, a student of Plato[9], however, was completely against this notion[10]. He expressed his opinion thus: "it is more right that the law governs rather than each of the citizens: by the same principle, if it is advantageous to entrust the supreme power to some particular persons, these should be appointed only guardians and servants of the laws". put simply, Aristotle supported the rule of law. The Roman Empire also put forward similar arguments in favor of the rule of law. Roman statesman Cicero once said: "We are all servants of the laws that we may be free." be found in 7th century Islamic jurisprudence that no official can claim to be above the law, not even the caliph John Locke in the second of his Two Treatises of Government (1689) emphasizes the importance of government through “established permanent laws. , promulgated and known by the people". Montesquieu in his work The Spirit of the Laws made a substantial contribution to the field of the rule of law in the form of the doctrine of the separation of powers[15], in particular the separation of judicial power from executive power and legislative courts to act as upholders of the sanctity of laws However, the most important, widespread and popular contribution in the field of the rule of law was that of Prof. AV Dicey after Sir Edward Coke had first proposed the term case of prohibitions[16 ]AV Dicey further elaborated it in his book "The Law of the Constitution", published in 1885. According to Prof. Dicey, the ruleslegal principles contain three principles[17]:-•Supremacy of the law•Equality before the law and•The predominance of the juridical spirit. Supremacy of law: This has always been the basic understanding of the rule of law that the law governs over all people, including the people who administer the law. Legislators must provide reasons that can be justified by law while exercising their powers to make and administer law. Equality before the law: While the principle of the supremacy of the law establishes checks and balances on the government in creating and administering the law, the principle of equality before the law seeks to ensure that the law is administered and applied fairly. It is not enough to have a just law, but the law must also be applied in a just way. The law cannot discriminate between people in matters of sex, religion, race, etc. This concept of rule of law has been codified in the Constitution of India under Article 14 and in the Universal Declaration of Human Rights in the Preamble and Article 7. The predominance of juridical spirit: By including this as a requirement for the rule of law, the Dicey's belief was that it was not enough to simply include the above two principles in the country's constitution or other laws for the state to be one in which the principles of the rule of law are respected. There must be executive authority, and Dicey believed that this authority could be found in the courts. Courts are the guarantors of the rule of law and must be impartial and free from any external influence. Judicial freedom thus becomes an important pillar of the rule of law. In modern parlance the rule of law has been understood as a system that provides safeguards against official arbitrariness, prevents anarchy, and allows people to plan for the legal consequences of their actions. Dicey's writings on the rule of law are influential and enduring for the law committee, particularly judges and legal practitioners.[18] In 1959, around 200 jurists from all over the world gathered in Delhi and thoroughly discussed the fundamental principle of the rule of law.[19] In what is known as the "Delhi Declaration", they declared that the rule of law implies certain rights and freedoms, that it implies an independent judiciary, and that it implies social, economic and cultural conditions conducive to human dignity.[20] Rule of Law in India India has adopted the common law system which fundamentally owes its origins to British jurisprudence[21]. British jurisprudence, however, is based on the 'Rule of Law'[22]. India has incorporated the rule of law into its constitution since inception. In the landmark case of Keshavnanda Bharti v State of Kerela [23], the court held that the rule of law is part of the basic structure of the constitution and is therefore immune from the government's powers of amendment. Dicey always maintained that there was no need for written laws to keep the government in check and was of the opinion that natural law and the rule of law would be sufficient to prevent the arbitrary exercise of power by the executive. India, while conforming to natural law, has codified some laws to keep the arbitrariness of the executive under control[24]. In India the Constitution reigns supreme. According to it, the rule of law pervades the entire field of administration and every organ of the state is governed by the rule of law. Article 13 of the Constitution states that any law that does not comply with the provisions of the Constitution is invalid. This strengthens the Constitution's position as the supreme law of the land. It is the supreme legal document from which all other lawsof the country derive their power. Equality before the law, an idea of ​​which Prof. Dicey was a great advocate and also proposed as one of the three principles of the rule of law, also finds place in the Constitution of India under Article 14. Furthermore, the preamble to the Constitution India enshrines the values ​​of Justice, Freedom and Equality. Article 21, perhaps the most important example of the rule of law, provides that no one may be deprived of his rights, the right to life and personal liberty, except in accordance with the procedure established by law. In its role as the protector of the law of the land, the Indian judiciary has been instrumental in upholding, propagating and promoting the rule of law. Over the last 70 years, the issue of rule of law in the Indian context has repeatedly come into focus. By taking a positive and flexible approach to interpreting the law, they ensured that the rule of law was adopted, not just on paper but in spirit and practice across the country. In the case of Sukhdev v Bhagatram[25] the court observed as follows: “Whatever the concept of the rule of law, be it the meaning given by Dicey in his "The Law of the Constitution" or the definition given by Hayek in his "Road to Serfdom" and the "Constitution of Liberty" or the exposition set forth by Harry Jones in his "The Rule of Law and the Welfare State", is there, as pointed out by Mathew, J., in his article on "Welfare State , Rule of law and natural justice" in "Democracy, equality and freedom", "there is substantial agreement in legal thought according to which the great aim of the notion of the rule of law is the protection of the individual against the arbitrary exercise of power, wherever it is." It is indeed unthinkable that in a democracy governed by the rule of law the executive government or any of its officials possess arbitrary power over the interests of the individual. Every action of the executive government must be motivated and free from arbitrariness. This is the very essence of the rule of law and its minimum requirement.” The essence of the rule of law is that there is no arbitrary power and, if such exercise occurs, citizens are free to turn to the courts which, in their capacity, examine the administrative action and strongly oppose if it exceeds the scope [26]. . Anything outside the scope of the law is ultravires[27]. A banal principle of common law countries that the executive must act according to the law and not by its own will is still in force in India thanks to the judiciary[28]. The supervisory power of the judiciary also derives from the concept of the rule of law. Over the years, several laws have been revoked as violating the spirit of the Indian Constitution, of which the rule of law is a fundamental component[29]. The judiciary ensures that the executive or the legislature does not overstep the established limits and thus keeps the system of checks and balances alive[30]. However, there is a fine line between judicial review and judicial activism and it is the latter that more often than not amounts to judicial overreach and violates the separation of powers between the wings of government[31]. There have been several cases of judicial overreach in India. A classic example of this is the recent case of the obligation for cinemas to play the national anthem. In what was a writ petition regarding commercial exploitation of the national anthem, the CJI observed, “the time has come, the citizens of the country must realize that they live in one nation and have a duty to show respect to the national anthem , which is a symbol of constitutional patriotism inherent in national quality”. The CJI observed that there was no room for “perception of individual rights”..