Q. What do you understand by the concept of “Rule of law” under Indian constitution? How is it different from that in the UK constitution?
The concept of “Rule of Law” is the building block on which the modern democratic society is founded. Rule of law is one of the basic principles of the English Constitution and the doctrine is accepted in the Constitution of U.S.A and India as well.
CONCEPT OF RULE OF LAW The term “Rule of Law” is derived from the French phrase ‘La Principe de Legality’ (the principle of legality) which refers to a government based on principles of law and not of men. The DICEY’S THEORY of the Rule of Law consists of three main principles:
- Absence of discretionary powers and supremacy of Law: viz. no man is above the law. No man is punishable except for a distinct breach of law established in the ordinary legal manner before the ordinary courts. The government cannot punish any one merely by its own fiat. Persons in authority do not enjoy wide, arbitrary or discretionary powers.
- Equality before law: Every man, whatever his rank or condition, is subject to the ordinary law and jurisdiction of the ordinary courts. No person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of the land.
- Predominance of legal spirit: Constitution is the result of the ordinary law of the land. The constitution is not the source but the consequence of the rights of the individuals.
CONCEPT OF “RULE OF LAW” UNDER INDIAN CONSTITUTION
- The doctrine of Rule of Law as enunciated by Dicey has been adopted and very succinctly incorporated in the Indian Constitution. The Indian Constitution also incorporates the principle of equality before the law and equal protection of the laws enumerated by Dicey under Article 14.
- The Constitution of India has been made the supreme law of the country and other laws are required to be in conformity with it. Any law which is found in violation of any provision of the Constitution, particularly, the fundamental rights, is declared void.
- The first and the second elements are applicable to the Indian System and not the third one. In the Indian System, the constitution is the source of the individual rights.
- The Supreme Court held that the ‘Rule of Law’ as embodied in Article 14 is a ‘basic feature’ of the constitution. Hence, it cannot be destroyed even by an amendment.
CONCEPT OF RULE OF LAW UNDER UK CONSTITUTION
- In Brirish Constitution, the liberties and the rights of the people must come from traditions and customs of the people and be recognized by the courts in the administration of justice from time to time. The constitution is the result of individual rights and not the source of individual rights, whereas, in the Indian System, the individual rights emanates from constitution.
- In the UK, Sir Edward Coke is said to be the originator of this concept, when he said that the king must be under God and law and thus vindicated the supremacy of law over the pretensions of the executives. Later, Prof. Albert Venn Dicey developed this concept, whereas in India, the concept of Rule of law can be traced to Upanishads. It provides that the law is the king of kings. It is more powerful and rigid than the kings. There is nothing higher than law.
Thus, the Rule of law is viable and dynamic concept and like many other concepts, is not capable of any exact definition; however, there is agreement on the basic values which it represents.