The Rule of Law has a privileged position in Indian Governance due to its adherence while making and Implementation of Laws. The Liberty, Freedom and Accountability are major components in line with the same and this has facilitated the recognition of Rights. The principles are that of Supremacy of Law, Equality Before Law, Predominance of Legal Spirit acting as a guiding force behind all the enabling and delegated acts. The first principle has relevance in the present society due to presence of Constitution as Grundnorm and based on which all the spheres of nation is ruled with prescribed rules, citizens are ensured with rights as laws are uniform. The present paper deals with Rule of Law, its basic tenets and epicenter is Supremacy of Law that is absence of arbitrary use of power and relevant constitutional provisions denoting application of principle. The judgements passed lay down varied perceptions and it is a catalyst for Citizen centric Administration. The discussion section has brief deliberation on the topic. 

Research Methodology

Scope of the Study

Study made by researcher in arriving at the research objectives revolve around the concept Rule of Law as propounded by Edward Coke, advanced with requisite principles by AV Dicey and latter’s three primary steps which would be means to achieve the ends that is social justice. The paper is seen to look at Rule of Law followed by incorporation of the same in Indian Constitution provided under the ambit of provisions drafted by makers and epicentre is on Supremacy of Law, its application in Indian Governance, the implications resulting with the relevant landmark interpretations by judiciary and how is the efficacy of country to maintain citizen centric governance intact in implementation of the aforementioned principle. The paper doesn’t dwell deep into the other two tenets rather is restrained to one of them and refrainment by researcher can be observed with regards to Comparison in International Arena.

Research Design

The present research is done by analyzing the Secondary data which is a Doctrinal method of research where the researcher has relied on reliable sources like Constitution of India, Reference materials by renowned thinkers, Research Journals, Research papers, Landmark Judgments and Inputs from various other sources.

Objectives

The objectives of this present study are as mentioned below:

• Inquiry on Incorporation of Rule of Law in Indian Constitution
• Study on the Principle- Supremacy of Law
• Analysing the implementation of principle in Governance
• Suggesting the ways for effective application of tenets

Research Questions

1. How does the Concept Rule of Law act as a catalyst to enhance the efficiency of Governance?
2. What does the tenet Supremacy of Law suggest?
3. How the principle has been inserted in Constitution?
4. Is the Judiciary administering justice in consonance with the same?
5. What can be followed to ensure Citizen Centric Administration?

Rule of Law – AV Dicey’s Proposition

Rule of Law is considered to be a mandate for inclusion in Justice Delivery System as it lays down three major principles which if incorporated, would be an efficient administration machinery and citizens are assured with protected ambience pooled with safeguarded rights.

The proposition has a timeline to be looked at pertaining to evolution from the era of political scholars Plato, Aristotle to that of Edward Coke and AV Dicey. Plato opines Law is supreme and nobody is above it while in Aristotle’s philosophy furtherance can be seen with Law being the Final Sovereign of State and John Locke having postulated Social Contract Theory with the pedestal of Natural Rights constitutes actions of Government to be in accordance with law. Edward Coke as a scholar puts forth three main principles paving way for the presently adhered ones, noticed to be included in Grundnorm of nations. Absence of Authoritarian rule of the Crown, Arbitrary Authority of Government and Protection of Rights of Individuals demands the requisiteness of Rule of Law, this concept was refined by AV Dicey where he comes up with the [1]celebrated opinion of absence of Arbitrariness and Discretion in Government, which is subject to criticisms as of now. The Rule of Law as per Dicey encompasses three quintessential elements to struck down the autocratic rule and this was inspired by British Constitution and ellaborated in his work The Law and the Constitution in 1885. The concept is neither a rule nor a law rather it’s a doctrine to ensure balance between government and people.

Rule of Law- Principles

The three important components are as below-

• Supremacy of Law
• Equality Before Law
• Predominance of Legal Spirit

[2]Supremacy of Law – The principle is derived from concept of Droit Administratif which was then the focal point of this theory and separate establishment of courts for officials , common men ignited scholar to come up with the tenet having its meaning in law saying, every action shall be justifiable by law in the sense, the stringent attitude towards adherence to laws and government shall function in absence of arbitrariness and discretionary powers. [3]The framework of rules, regulations would be guiding the operations of state in line with Legality principle(La principe de legalite). The man shall be punished only for breach of law.

Equality Before Law – It means the lens through which common man and officials should be viewed that’s of equality where they are said to be governed by uniform laws followed by are subject to ordinary courts of law without any special establishments present. [4]Law has everyone subordinate to it and no body is above the same and fair, just, reasonable treatment of masses is expected in the eyes of Law.

Predominance of Legal Spirit – [5]The concept as it denotes, is all about Judiciary exercising the authority to check upon the actions that is if administration is in acquiesance with rule of law principles and Judicial Review is adopted for the same. Disputes pertaining to legality of enactments shall be decided by Judges and wherever necessary arises, they can declare the laws ultra vires the fundamental law of land. Dicey states that whenever there is discretion, there is room for arbitrariness and to ensure power given, is not used as being absolute, indivisible, regularly actions of legislators, executive is examined.

The concept finds place in many constitutions and administrative systems, has turned out to be an essential molecule to form an element of efficient governance inspite of shortcomings where critics come up with their interpretations of Dicey’s lack of emphasis on line of difference between Discretion and Arbitrariness. He has excluded the Civil, Criminal processes from interpretation rather has narrowed his study towards the French Administrative system then with Council d’etat, conceiving the same parallel to institutions of ancient autocratic monarchy. The administrative adjudication wasn’t researched thoroughly but ordinary courts’ adjudicatory mechanism is looked into, known to be the drawback on which the doctrine rests.

Rule of Law – Indian Constitution

The theory is incorporated in our Constitution which is considered to be Fundamental rule of Land and Grundnorm as said by Kelson meaning a fundamental norm on which country’s laws and structure would be based on. The Framers of document have carefully inserted concepts requisite for a nation like that of ours with varied cultural diversities, distinguished citizens with occasional visitors, migrants who are to be addressed having their interests to be catered. The Constitution took 2 years, 11 months, 7 days to be documented and its is proven to be a mark of excellence, being a lengthiest written one possessing in its ambit 395 articles, 22 parts and 12 schedules. The Rule of Law has been a celebrated concept beginning from Preamble citing the terms Liberty, Equality, Justice and this forms the objective of country’s laws, policies. The part 3 enshrines Fundamental Rights, inspired from the US Constitution, Magna Carta which has bundle of quintessential rights to be handed over to citizens in absence of waiver provision. [6]The articles 12-35 have explicit mentionings denoting the application of the aforediscussed doctrine and the same is as below-

• Article 13 – Laws Inconsistent with or in derogation of Fundamental Rights
• Article 14 – Equality before Law and Equal Protection of Law
• Article 15 – Protective Discrimination
• Article 19 – Right to Freedom of Speech and Expression
• Article 20 – Protection pertaining to conviction of offences
• Article 21 – Right to life and Personal Liberty
• Article 22 – Protection against Arrest and Detention
• Article 32 – Constitutional Remedy- Enforcement of Rights.

The Laws framed in country are congruent with the Constitutional principles encompassing freedom, equality, fraternity, accountability, non- discrimination, non- arbitrariness and the certainty is focal point with 395 articles as the uniform guiding force with respect to Law making (Legislators), Implementing Laws (Executive), Interpreting Laws (Judiciary). [7]The Article 14 expressly has to do with Equality before law which is both negatively and positively pursued with former being not to be discriminated and latter is to be treated equal not only in theoretical sense but also shall be practically applicably with no wide gap between the both. The officials in country shall have same responsibility as present with common man, subjection to peculiar rules is not to be seen and equal protection of laws is to be viewed in specific sense which in a nutshell could be stated as Equals must be treated equally while unequals must be treated differently. The Reasonable Classification followed by Intelligible differentia, Forbidding Class Legislation are to be considered as important tenets and researcher skims through the Delegated Legislation subject where if executive makes rules it shall be in line with Parent act, shall have nexus with the object of laws made by legislature. The administrative bodies must be guided by legislature regarding discretion to be exercised while classifying and when rules are scrutinised, reflects the arbitrary use, laws are declared ultra-vires the article 14. [8]The fair procedure also forms the part where we can notice the inclusion of Principles of Natural Justice to the provision in the renowned judgement of [9]Maneka Gandhi v. UOI. The Predominance of Legal Spirit could be observed by judiciary checking upon the laws framed by legislature, executive, if they are in consonance with Constitution, and primely the basic structure with regards to which judges themselves have not let out their jurisdiction to be ousted where the tenets can be inserted and removed. The judges would be reviewing laws, if they are inconsistent with grundnorm or executive’s laws are not in par with parent act, they are struck down and this is a quintessential machinery to ensure the compliance. Article 32 has been incorporated so as to create platform for aggrieved citizens to approach the court if been a victim of injustice and violation of fundamental rights, can reach out Supreme Court and Article 226, entertains the petitions of both fundamental and constitutional rights where, people can file in High Courts.

Supremacy of Law- Obliteration of Arbitrariness

AV Dicey’s theory is a paradigm concept bringing shift in the era of governance demarcating the emergence of philosophy of legal justice delivery system with the transition from tyrannical form with arbitrary powers to democracy with equally distributed powers and equal terms of liability in absence of immunities. The first principle denotes supremacy of law which means to convey that nobody is above the law, contrary to the popular saying, “King can do no Wrong”. The Law makers are to be concerned about less focus on Absolute authority rather shall frame legislations in a manner where peoples’ liberty is not at stake and the reasonable use of power could be seen with legitimacy. [10]The Delegated Legislations being subordinate, is provided by legislators to administrative authorities to draft rules, regulations having relevance with the present changes, contemporary legal problems and their field study, expertise would be of great support to the former, in turn not paralysing the system with inefficient laws. [11]The officials are guided by delegators to not step out of their scope of law making and maintain procedural fairness, laws made shall not contravene the parent act and primely nexus shall be there with the object of state that is, the aim of state while presenting, passing in parliament. [12]The Constitutions is considered as the supreme law and that is the umbrella under it, all the laws, orders, bye-laws, rules, regulations must lie, if in derogation that provision can be struck down by Doctrines for interpretations varying from severability, eclipse, to colourable legislation, pith and substance. The three highlights could be of Liberty, Freedom and Accountability where rules are to be made in consonance with liberty of people, no deprivation of their freedom and representatives, bureaucrats are made accountable to governed citizens with respect to their decision making, maintaining good public relations would be a catalysing factor for Nation’s growth, development.

The Articles of Constitution are Foundation evident to note the presence of Rule of Law incorporated, abided by drafters. The Delhi Declaration 1959 emphasised the creation of conditions where dignity of man as individual is upheld with recognition of first, second generation rights. [13]The Secretary General of UN reported in 2004 the tenets in two vital components being-

• Principles of Governance- Accountability of all persons, Private and Public Institutions, and to laws promulgated, enforced, adjudicated in public domain.
• Measures to enforce- Supremacy of Law, Fairness in Procedure, Separation of Powers, Transparency, Fairness in Application of Law.

The practice can be observed in country by looking into primarily Article 13, speaking about declaration of statutes, parts of the same ultra vires, if lacking the adherence to Fundamental Rights can be evaluated by Judiciary through Doctrines being severability for pre – constitutional laws and eclipse for Post-constitutional laws. The rule can be seen in [14]Peoples Union for Civil Liberties v. UOI (Telephone Tapping Case), Sec 5 of Indian Telegraph act making Tapping legal was severed on the grounds of infringement of Privacy Right. Article 14 in its broader sense is inclusive of procedural fairness, legislative classification, intelligible differentia, executive discretion with acquaintance to the positive equality and refraining to adopt negative equality principle. The substantial laws are subjected to scrutiny rather than procedural laws to check whether they are in line with application expected by Dicey to be followed by democratic countries which is of equality before law. [15]Article 19 of Indian constitution has been the matter of concern as contentions of Hate Speech are at hike followed by detentions and citizens are curtailed of rights prescribed under the same being freedom of speech and expression, assembly, forming associations, movement, residence, practice of any profession. [16]The concept of judicial activism that has gained popularity paving way for PIL to be filed before the court by aggrieved or group of same and laws of sedition are condemned because of their tendency to be misused. The provision is to be interpreted considering the individuals’ preferences, what can be justiciable and the ruling in [17]Bijoe Emmanuel v. State of Kerala(1986) reflects on the Right to Remain Silent, [18]Babulal Parate v. State of Maharashtra(1961) has to do with right to take out processions considered as right to assemble, The state of MP v. Baldeo Prasad where provisions of Central Provinces and Berar Goondas Act 1946 sections 4, 4(a) were held unreasonable vesting the power of externment to District Magistrate as unreasonable. The thinkers opine the malfunctioning of authorities in arresting film-makers, students, journalists, activists, under the ambit of draconian laws Unauthorised Activities (Prevention) Act {UAPA}and Sec 124 A of IPC. Article 20 prescribes the aboilition of Double Jeopardy and Protection against Self-Incrimination are to be noticed as prevention of officials to exercise indivisible power by detaining twice for same offence under same act, the proceedings conducted in judicial tribunal or court not abided by and compulsion to give witness against the will of accused. Article 22 Connotes the safeguards acquirable by accused, innocent imprisoned by the misapplication of legitimate power, in custody persons shall be provided with valid grounds for arrest and right to consult a legal practitioner to be granted. Arrested persons shall not be kept in custody without being informed, shall be produced before the magistrate within 24 hrs and the same is proclaimed in [19]DK Basu v. State of West Bengal to protect against the custodial violence and clauses 4 to 7 deal with Preventive Detention revolving around avoiding the commission of [20]offence being a major step in theories of punishment under the discipline of Criminal Jurisprudence, Advisory board is established to increase the period of detention which is mentioned to be three months. The provision aforediscussed expresses the concern so as to assure officials do not adhere to corrupt practices.

[21]Article 21 has been a supportive one to encourage citizens for claiming their rights with the corresponding duty in acquiescence with others, having obtained the status of blanket provision it constitutes basket of protecting elements from right to life and personal liberty to right of health, sanitation, choosing partner, reproductive choice. The people shall not be curtailed from enjoying the same unless procedure is established by law being antithesis to US due process of law. Article is parallely construed with Article 19 and processes in law if found depriving rights must not be unfair, arbitrary, unreasonable and was upheld in Golden Triangle Rule pronounced in [22]Maneka Gandhi v. UOI.

Discussion

The postulate of Law being superior than sovereign, is a barrier avoiding officials to make arbitrary decisions and take up steps out of discretionary application of acts. The law makers are entrusted with responsibility to draft in line with Constitutional principles and the above discussed provisions convey the authority present coupled with reasonable restrictions based on which enactments are passed. The Administrative discretion propounded in Article 14 is about delegated legislation where enabling act shall be having supervisory guidelines to abide by so that they are not ultra vires the Parent act and implementation too is in accordance with law established. The judgement in [23]ADM Jabalpur v. Shivkant Shukla has primarily deliberated and minority view was in favour of non – deprivation of fundamental rights to approach court followed by [24]Keshavananda Bharti v. State of Kerala came up with Basic structure doctrine against which laws aren’t supposed to be framed and Puttaswamy test of privacy depict the rule of law in country. The first tenet could be taken up as pivotal, as legal system would be paralysed if not congruent with Dicey’s thoughts inspite of criticisms with respect to lack of emphasis on discretion which is considered as yardstick for authorities. The law makers can instruct administrative authorities to enforce laws in conformity with rule of law which is part of basic structure. The Constitutionalism as imprinted in constitution must be the focal point along with provisions.

Conclusion and Recommendations

  The present paper answers the questions posed at the beginning of discussion that Rule of Law is most vital concept in order to have at transition from developing to developed state. The principles are part of Basic structure of Constitution governing the laws made, enforced and applied in the legal sphere of Nation. Dicey though has been critiqued for his presumptions of discretion- free nation, till date his notion is being yielded with the position in nations adherents to parliamentary, presidential systems. The Supremacy tenet is the safeguard in turn preserving rights, recognising liberty of citizens with accountability on the side of rulers. The drafters of Indian Constitution dwelled into the discipline of law making and have inserted Articles held to be backbone for distributive, social justice which is an end through the above discussed means. Nation can establish Commission on Legislations working on aspects where laws shall be in line with Rule of Law, Principles of Natural Justice, Doctrine of Separation of Powers. The discretionary power exercised shall not become arbitrary and this has to be taken care of.

Composition- Chairman, members from parliament, Advocates, Legal Researchers, A retired Civil Servant.

The body which can be set up has a lot to contribute in smooth and citizen centric Governance.  

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[1] I.P. Massey, Justice P.N. Bhagwati & Prof Upendra Baxi, Administrative Law (10 ed. 2022).

[2] S P Sathe, Administrative Law (7 ed. 2004).

[3] H W R Wade & C F Forsyth, Administrative Law (11 ed. 2014)

[4] V N Shukla & Mahendra Pal Singh, Constitution of India (13 ed. 2017).

[5] Id. at 1

[6]V N Shukla & Mahendra Pal Singh, Constitution of India (13 ed. 2017).

[7] V N Shukla & Mahendra Pal Singh, Constitution of India (13 ed. 2017).

[8] I.P. Massey, Justice P.N. Bhagwati & Prof Upendra Baxi, Administrative Law (10 ed. 2022).

[9]  AIR 1978 SC 597

[10] I.P. Massey, Justice P.N. Bhagwati & Prof Upendra Baxi, Administrative Law (10 ed. 2022).

[11] H W R Wade & C F Forsyth, Administrative Law (11 ed. 2014).

[12] V N Shukla & Mahendra Pal Singh, Constitution of India (13 ed. 2017).

[13] Id. at 10

[14] AIR 1997 SC 568, (1997) 1 SCC 301

[15] V N Shukla & Mahendra Pal Singh, Constitution of India (13 ed. 2017).

[16] I.P. Massey, Justice P.N. Bhagwati & Prof Upendra Baxi, Administrative Law (10 ed. 2022).

[17] 1987 AIR 748, 1986 SCR (3) 518

[18] 1961 AIR 884

[19] 1997 6 SCC 642

[20] V N Shukla & Mahendra Pal Singh, Constitution of India (13 ed. 2017).

[21] Id. at 20

[22] AIR 1978 SC 597

[23] ADM Jabalpur: The case that was but should never have been! – the leaflet The Leaflet – An independent platform for cutting-edge, progressive, legal, and political opinion. (2020), https://theleaflet.in/adm-jabalpur-the-case-that-was-but-should-never-have-been  (last visited Dec 27, 2023).

[24] Writ Petition (Civil) 135 of 1970

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Author: Varuni V Kashyap

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