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RULE OF LAW: AN ANALYSIS


Authored By Aprajita Priyadarshini


Keywords: Rule of Law, Constitution, Democracy, Development, la principe de legalite, Analysis


Abstract

The Constitution of India is the supreme law of the land and this supremacy thus substantiates the pre-dominance of Rule of Law in the country. The concept of Rule of Law states that the country is to be governed by the laws and not by the ruler or the nominated persons of the government. This paper tries to analyze the basis and development of Rule of Law in India.


Introduction

The phrase Rule of Law comes from the French phrase ‘la principe de legalite’ which means principle of legality. The Rule of Law traces its origin back to the 13th century to the times of the monarch and its firm pillars were laid by Prof. A. V. Dicey in 1885 in his book “Introduction to the Study of the Law of Constitution”. According to Dicey, any government should be based on the principles of law and not men. Also, he stated that no wing of the government should be vested with excessive powers because too much concentration of powers gives scope to arbitrariness and misuse of such power. The principles of law according to Dicey are:

Supremacy of Law

The law is the paramount of all; the King is not the law, the law is the King. A country must be run by the laws governing the country and not the government. The Executive and the Legislative thus derive their authority from the Supreme Law, which in a democracy is the Constitution. Even the law-makers need to justify the reasons under law while exercising their powers. No man is above the Law and law is the Supreme.

Equality before Law

As per the Rule of Law, there can be no discrimination made between the rich and the poor, the majority or minority, an officer or a beggar. Everybody is a subject to the same law on the same stand. Every man is equal before law, no one is above and thus the law provides equal justice to all.


Pre-dominance of Legal Spirit

The third principle emphasizes on the dominance of the legal spirit in the people, be it the creators of such law, the executors of law or the subjects to the law. Mere grant of rights and powers to the people documentary through the Constitution does not ensure true enactment of Rule of Law. The enforcement of such laws by the Courts can only guarantee the availability of such rights to the people.


Rule of Law in India- A Critical Analysis

The Rule of Law has been identified as the basic structure of the Constitution of India[1].The Constitution of India is the supreme law of the land and has various highlights of the implications of Rule of Law in its structure. Article 14 provides rights of equality to the people, while Article 21 provides rights life and liberty. Article 13 declares void any laws made by the Legislative inconsistent with provisions of the Constitution while Article 19 provides rights of freedom in the democracy. In our constitutional system, the central and most characteristic feature is the concept of rule of law which means, the authority of law courts to test all administrative action by the standard of legality.[2]


The documented rights have been provided in a wholesome by the Constitution of the country, but it is a sheer distress to watch the essence of these rights being hollowed by the various termites in the democracy like corruption, class and status discrimination at the root levels of society and several others. Various examples can be cited from the history of the country to show the failure of mechanism in providing effective enforcement to these rights and ultimate inefficacy of Rule of Law in India like-

Bhopal Gas Tragedy- Justice that was delivered 25 years after the incident took place defeating the Right to Speedy Trial under Article 21. The quantum of punishment granted by the court was considered to be disproportionate to the enormity of the offence.[3]

Fake Encounter Cases- Enormous examples can be taken for fake encounters done at the hands of the police. Encounter killings are not a part of the official state policy but the police have been increasingly resorting to it assuming themselves as both the executioner and the judge. Encounter killings are no less than cold blooded murders and have a terrible consequence on the democracy and Rule of Law.

Caste based Reservation against Secularism- Providing reservations to the socially and Educationally Backward Classes under Article 15 of the Constitution lead the entire concept of Secularism enshrined in the Preamble of the Constitution itself to a stake.[4]

Religion- Religion did and still continues to play an influential role in the political structure of the country as well has an impact on the justice delivery of the Courts. The judgment to Shah Bano’s case[5] on maintenance to Muslim women was meted out on religion based political grounds and had to be ultimately withdrawn though the Court provided only that which was provided by the secular nature of the Cr.P.C.

Kashmir- The situation of Kashmir is not hidden from anyone. A perfect example would be the time to time ban on internet facilities in the state of Kashmir while rest of the country enjoys 4G network eventually leads to the people being deprived of their Right to Equality under Article 14. Where is the Rule of Law?


Conclusion

The development and evolution of the Rule of Law in the Indian democracy has been at a brisk pace since its very inception with the Constitution. The Judiciary-an independent body of the democracy, has strived leaps and bounds through all these years in efficiently imbibing the essence of this principle in its judgments and thus accredit to its growth. But at the same time, there is a plethora of incidents where the principle becomes a subject to public convenience and perception of the political ball game. Thus mere guarantee of rights do not suffice, the actual implementation in every possible manner will relive the principle of Rule of Law in the country’s democratic structure to its fullest.


REFERENCES

· http://www.legalserviceindia.com/legal/article-85-development-of-the-rule-of-law.html#:~:text=%C3%A2%E2%82%AC%20The%20Rule%20of,paramountcy%20of%20Law%20over%20Government.&text=3.

· https://blog.ipleaders.in/rule-of-law/

· https://www.lawteacher.net/free-law-essays/constitutional-law/dicey-rule-of-law-8355.php

· https://indiankanoon.org/doc/1344892/

[1] Kesavananda Bharati v/s State of Kerala, (1973) 4 SCC 225 [2] Chief Settlement Commr; Punjab vs. Om Prakash, 1969 AIR 33 [3] Union Carbide Corporation vs. Union Of India Etc, 1990 AIR 273 [4] Indra Sawhney v/s Union of India, AIR 1993 SC 477 [5] Mohd. Ahmed Khan vs. Shah Bano Begum And Ors, 1985 AIR 945


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