RULE OF LAW

RULE OF LAW

The Concept

In earlier times  (and in a few countries ‘now) ,certain classes and individuals Possessed special privileges’ and were  judged by special law the modern view to apply  the same law over all- persons in the  State and to give all  persons equal rights and privileges for the protection  of their human  liberties: Democracy can remain only in s -society of equals.

Three Rules

The concept of equality of all persons before law is the basis of what is called the Rule of Law. The Rule was summarised by Dicey as follows :

I. The Rule of Law states that, “no man is punishable or can be lawfully made ‘to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts.” (Dicey). In other words,

(a) there must be supremacy of law,

(b) no one ‘shall be punished except for definite breach of law and

(c) the breach of law must be proved, in a duly constituted, court of law. No citizen can be arrested or imprisoned, unless he violates specifically any law of the country in force and is accused of a charge by the court. Thus the rule of law implies equal protection of law.

2. In the second place, Rule of law means that, “no man is above law”. Every man whatever his rank or condition, is subject to the ordinary law of the State and amenable to the jurisdiction of ordinary tribunals. “What is law-legal right and legal obligation for me-must hold equally as such for all citizens.” (Dicey). In other words, Rule of Law means

(a) equality before the law,

(b) every citizen is subject to the ordinary law of the land and

(c) the citizen has to face trial in the same law courts, irrespective of his status or position in the society.

3. In the third place, the Rule of Law is the result of statutes and judicial decisions determining the rights of private persons. Thus the constitutional law of the country follows from the ordinary law of the land.

Comments .

ü       The Rule of Law is therefore, no respecter of persons.

ü       It is applicable to everybody (from Prime Minister to the convict, and from the millionaire to a beggar).

ü       The judiciary must be indepen­dent and impartial if the Rule of Law can mean anything real.

ü       Unlike the Indian Constitution, the British Constitution has developed through historical -evolution on the basis of common law. The rights of citizens of -England are not. written in a special document (like Fundamental Rights or a Bill of Rights).

ü       They are specified in common law.

ü       –If an ordinary citizen, or the sovereign power interferes with the 4egal right of a citizen, the remedy !s to be sought with the help of common law.

ü       Therefore, Dicey–observes that the rights of the citizens have been protected by the, ordinary law of the country and the Rule of Law. In India, however, there is a written constitution specifying the Fundamental Rights of a citizen.

Criticism

The three principles, which Dicey described in relation to the Rule of Law, have been criticised by many jurists, including I. Jennings, H. Laski and W: A. Robson. The –main criticisms are summarised below :

1. The emergence of Administrative Law :

  • With the increase of constitutional complexities, the government departments have made many rules framed under various acts. This is known as Administrative Law.
  • There are also special tribunals for the settlement of professional disputes.
  • At the time of Dicey (19th century Great Britain) there existed separate military courts and courts for churchmen.
  • The executive department often uses the arbitrary and prerogative powers in day-to-day’s work and for the purpose of performing the administrative work applies the discretionary power in Most cases. ‘
  • Therefore, it is apparent that the Rule of Law is breached and the -power of  the government is far-reaching.

2. Economic Inequalities :

  • In order to ensure legal equality Prof. Laski emphasises the need of economic equality.
  • Punish­ment for the same offence varies because police enforcement is frequently partial.
  • Therefore, from the standpoint of law, the word `equality’ is meaningless, unless there is economic equality followed by Social and constitutional equality.

3. The supremacy of the Legislature :

  • The third principle of the Rule of Law is the supremacy of common law.
  • But, in fact, the principal basis of the constitution of England is the supremacy of Parliament.
  • The sovereignty of Parliament in Britain has not been established by the Court.
  • Although the Fundamental Rights of a citizen are established upon the basis of conventional rules and the
  • Court is the protector of those rights, yet Parliament of Britain ‘is the sole authority to bring any change over or-to nullify the existing rules.
  • Therefore, it is understood that Parliament is, the fundamental basis of the Constitution of England and judging from the standpoint of modern age, the concept of the Rule of Law is only a theoretical idea..
  • This, . however, does not apply to India because the c9tstitut+on of India is written and there is a provision of , fundamental rights in the constitution.

Conclusion

The principle of Rule of Law has been criticized from three viewpoints, viz.,

(i) the extensive power of Administrative- Law,

(ii) inequality of income/wealth and

(iii) supremacy of the legislature. In ,spite of these defects, a civilized state must secure the Rule of Law.

Otherwise, despotism, authoritarianism and corruption will hold sway on the state. Democracy can be attained only under the Rule of Law. Conversely. Rule of Law can be attained only in democracy.

The Rule of Law has many benefits.

  • It protects the liberty and rights of citizens.
  • The Rule of Law creates an Atmosphere of peaceful living.
  • This principle, with true education enhances the calibre of citizens, legislators, and voters, thus enabling them to maintain Rule of Law free from its defects and designs of self-seeking person s.

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