Rule of law

By- Shubham Sharma

The rule of law, means that no person is above the law and also that
every person is subject to the jurisdiction of the general courts of law,
irrespective of their position. The word rule of law has been originated
from England and India. The concept of rule of law further requires that
no person should be treated harshly or arbitrarily. 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. In the rule of law the
word ‘law‘ means that he is a man or a society, he should not be
governed by a man or a ruler, but by law.
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 formal origin of the word is attributed
to Sir. Edward Coke, and is derived from French phase ‘la principe de
legalite’ which means the principle of legality. The firm basis for the
Rule of Law theory was expounded by A. V. Dicey and his theory on the
rule of law remains the most popular.

Postulates of rule of law

In 1885, Professor AV Dicey developed this concept and propounded
the three principles or propositions of the rule of law in his classic book
“Law and the Constitution”. According to Professor AV Dicey, in order
to achieve the supreme three principles of law should be followed which
are as follows:

1. Supremacy of law: – According to the first postulate, the rule of

law refers to the lack of arbitrary or broad discretionary power.
 To understand it simply, every person must be governed by law.
The supremacy of law is a fundamental concept in the Western
democratic system. In the rule of law both citizens and
governments should be subject to known and permanent laws.
The supremacy of law also requires comprehensiveness in law.
This principle is another development of the principle of
equality before law.
2. Equality before law: – Equality before law, also known as
equality under law, equality in the eyes of law, legal equality, or
legal egalitarianism, is the principle that every person must be
treated equally by law (the principle of equity) and this entire are
subject to the same laws of justice (due process).
3. Predominance of legal spirit: –The third meaning of the
freedom of the legal soul or the rule of law is the general
principles of the constitution, the result of judicial decisions
determining the file rights of private individuals in special cases
brought before the court. The principle is that no one is above
the law.

Rule of law under Indian constitution

To develop Indian democracy, the rule of law has played a great role. At
the time of the constitution’s framing, the Framers had two options,
namely the USA and England. Some provisions were adopted from the
United States and some of them were adopted from England. The rule
of law was adopted from England by our constitutional father and many
provisions were incorporated in the Indian Constitution. The Indian
Constitution is considered supreme and no one is above the Indian
Constitution. The rule of law is also enshrined in the Preamble and such
concept is contained in Part III of the Indian Constitution. Further the
constitution provides that the constitution shall be the supreme power in
the land and the legislative and the executive derive their authority from
the constitution. Any law that is made by the legislature has to be in
conformity with the Constitute failing which it will be declared invalid,
this is provided for under Article 13 (1). Article 21 provides a further
check against arbitrary executive action by stating that no person shall
be deprived of his life or liberty except in accordance with the procedure
established by law. Article 14 ensures that all citizens are equal and that
no person shall be discriminated on the basis of religion, race or place of
birth, finally, it ensures that there is a separation of power between the
three wings of the government and the executive and the legislature have
no influence on the judiciary. In case of violation of such rights, one can
approach the Supreme Court or High Court under Articles 32 and 226 of
the Indian Constitution. The Constitution of India is enriched by the
principles of law i.e. justice, equality and freedom. Any law made by the
Central Government or the State Government should be complied with
as per the Constitution of India. If any law made by the legislature
violates the provisions of the Constitution, such law shall be declared
void. Under Article 32 of the Indian Constitution, the Supreme Court has
the power to issue writ in the nature of habeas corpus, mandamus, quo
warranto and certiorari. The power of judicial review is also given to
prevent any ultra vires law so that the rule of law can be preserved.

The Supreme Court of Indian has further strengthened this mechanism

through its various judgments, most famously in the case
of Kesavananda Bharati v. State of Kerala the Supreme Court held that
the Rule of Law is an essential part of the basic structure of the
constitution and as such cannot be amended by any Act of Parliament,
thereby showing how the law is superior to all other authority of men.

Apart from the judicial decision, the constitutional mechanism in itself provides for
the protection of the rule of law through the creation of monitoring agencies. While
there have been numerous scams that have come to light in the last few years, the fact
that must also be noted is that these scams have come to light and the justice delivery
mechanism has been set in motion against the perpetrators.

The role of the Central Vigilance Commission and the Comptroller and
Auditor General in the exposure of these discrepancies is commendable
and this shows how the law has provided for its own protection by
putting in place multiple levels of safeguards which ensure that it will be
effective at some level. The Election Commission of India, a
constitutional body has also been undertaking the task of ensuring free
and fair elections with some degree of efficiency.

CONCLUSION
The founding fathers of India accomplished what the rest of the world though
impossible- establish a country that would follow the letter of the law and implement
the Rule of Law. In all matters such as the protection of the rights of the people, equal
treatment before the law, protection against excessive arbitrariness, the Constitution of
India has provided enough mechanisms to ensure that the Rule of Law is followed.

Through its decisions, the Courts have strived to reinforce these mechanisms and
ensure smooth justice delivery to all citizens. Problems such as outdated legislation
and overcrowded courts are but small hindrances and bodies such as the Law
Commission of India work towards ironing out these problems with the aim of
achieving a system where there are no barriers to the smooth operation of the Rule of
Law.