RULE OF LAW: AN INSTRUMENT FOR THE GOOD GOVERNANCE

Jyoti Kumari,

Lucknow university

Introduction

Earlier there was no sort of defined laws by which a kingdom or a society could be governed. And due to which a lot of problems used to arise. Laws means rules and regulations which are made to regulate the people behavior in the society. Law as a means or an instrument by which peace and order can be maintained. Law can be arbitrary or non - arbitrary depending on the type of the government which is ruling over the state. As generally it is seen dictatorship government is full of arbitrary powers. The law made by such type of government is all of dominating or suppressing nature unlike democratic government law is said to be balanced law where people get certain rights and law applies here are generally arbitrariness free. But some sort of exceptions also lies. As state requires to protect his citizens from any external affairs and also accountable to make laws for them. There is a basic principle used by the government or state to rule over the people or it can be said that people are governed by the Doctrine of Rule of Law. Rule of Law is the Doctrine which means every rule as per accordance of the law i.e. the government should be as per accordance of the law or ordinary law of the land and every law and rule enacted to regulate the citizens must not be arbitrary and must be based on the ordinary law of the land and not beyond it. There are three features of Rule of Law which is considered under it are-

Supremacy of laws

Equality Before Laws

Predominance of Legal spirits

Rule of Law

‘Rule of Law’ is an English origin term, it was first coined by Chief Justice Edward Coke India has taken this concept from here. According to Black’s Law Dictionary, Rule of Law means legal principles of day-to-day application, approved by the governing bodies or authorities expressed in the form of logical proposition.

According to oxford advance learner’s Dictionary Rule of Law means the situation in which all the citizens as well as the state are ruled by the law.

Rule of Law means no person should be treated with arbitrary nature or through harsh means except procedure by the laws. Laws should be applicable equally to all the citizens. No one will be considered above the laws. All the people whether poor , rich, private ,public are will be subjected equally to the law of the land or will be governed by the same laws .Law is said to be supreme to all  and everybody is obliged to it .No arbitrary treatment with anyone under this Doctrine. The phrase Rule of Law is derived from the French phrase ‘la principle de legalite’ which means principle of legality i.e. government formed on the principles of law and not of men. In 1885 professor A.V, dicey developed this concept of the coke and propounded three principles of the’ Rule of Law’. In his classic book ‘Law and the Constitution’.

Supremacy of Laws

The first principle ‘supremacy of laws’ means law is supreme in nature it can be said that no one is above the law. Law is considered being above all even though ruler who used to rile above the state has to go or act as per accordance of the law of the land or ordinary law of the land. The ruler cannot act beyond the laws mentioned he has to rule within those regulations.     The law has said to be supreme as no arbitrary power can be exercised and no sort of ultra vires power can be used by the ruler or anybody on the down trodden or lower strata people of the society.

Equality before laws

This principle basically states about the equal treatment of all the people of the state before the law. It can be said that the equal treatment or subjection of all the classes of the people before the law. It is said that whether a person is government employee or at any position or rank, he or she is rich or poor will be equally subjected to the ordinary law of the land.

Predominance of legal spirits

This third principles states about Rule of law which are laws or provisions mentioned in the constitution are as a result of the judicial precedent or decision i.e. laws are made by the judges, they are consequences of the judicial decision.

Features of this Doctrine Rule of Law

·Rule of Law prevents arbitrary rule or governance by the government or the state.

·Rule of law helps in maintaining peace and order in the society.

·It prevents unequal treatment between people and make every people equal in the society.

·No one can be treated in unequal manner except procedure established by the laws.

·Everyone has to follow the procedure of the law whether he is government officer or non- government officers.

·Rule of Laws generally follows the principles of natural justice i.e. fair, reasonable, and just based procedure should be applies.

Rule of Law and The Indian Constitution

Rule of Law is applicable in the Indian government. Generally, it is seen two principles of this Doctrine applies in the India.

·Supremacy of Laws

·Equality before Laws

The third principle of this doctrine does not apply in India. Rule of law in the Context of the Indian Constitution it is seen that the principles of rule of law has been followed in the provisions of the Constitution. Article 13 of the Indian Constitution where the supremacy of the law of land can be seen it is stated there if any law made by the legislature (central or state) contravened with the provisions of the Fundamental Rights then such law will be declared as void.

Article 32 and 226 of the Indian Constitution provides that if any individual rights get encroached or violated by any means he or she can approach the Supreme Court and the High Court in part III of the Indian Constitution. The Supreme Court has also given power in order to prevent ultra vires and in the way it prevents ’Rule of Law’.

Case Laws which mentioned about the Doctrine Rule of Law

ADM Jabalpur v Shivakanta Shukla[i] The Supreme Court held that the emergency provisions are themselves rule of law during times of such emergencies. This is also known as “Habeas Corpus case.”

Keshavanda Bharti vs. State of Kerala[ii] The Supreme Court held that the rule of law as one of the most important aspects of the doctrine of basic structure doctrine.

Bachan Singh v. State of Punjab [iii] Singh Justice Bhagwati has emphasized that the rule of law excludes arbitrariness and unreasonableness and it is necessary to have democratic legislature to make laws and independent judiciary to protect citizens from ultra vires power of the executive and the legislature.

Yusuf khan v. Manohar Joshi[iv] The Supreme Court has laid down the proposition that it is the duty of the state to preserve and protect the laws and that it may not permit any violent act, which may negate the rule of law.

DC Wadhwa v. State of Bihar[v] The court ruled the re-promulgation of ordinances was unconstitutional as the re-promulgation of the ordinances for a period of one to fourteen years without going to legislation was a colorable exercise of power by the executive.

Exceptions to ‘Rule of Laws’

·President and Governors are provided with some immunity through articles 361 of the Indian Constitution.

·The President or the Governor of the state shall not be answerable to any court for the exercise and performance of the powers and duties of his or her office.

·No criminal proceedings shall be instituted against the president or the governor of a state.

·Immunity to Foreign Diplomats under Vienna Convention on diplomatic relations 1961.

·Immunity to Supreme Court and High Court Judges including article 121 of the Indian Constitution which restricts the discussion on the conduct of such judges in parliament.

Conclusion

‘Rule of Law’ is a basic structure Doctrine which plays an essential role in the governance of the country. This doctrine helps in forming balanced government. It is the state which has the duty to protect its citizens from any sort of discrimination and arbitrary power. So, if we conclude the basis of Rule of law is to protect the rights of the Citizens and no sort of inequality between them and everybody will be equally treated in the eyes of the laws.

Case Citation

[i] AIR 1976

[ii] AIR 1973

[iii] AIR 1980

[iv] AIR 2000

[v] AIR 1986