Foundation of Law Final Draft

7/27/2019 Foundation of Law Final Draft

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DR. RAM MANOHAR LOHIA NATIONAL LAW

UNIVERSITY

LUCKNOW

(2013-2014)

A PROJECT REPORT ON

RULE OF LAW

UNDER THE SUPERVISION OF: SUBMITTED BY:

MS. DEEPIKA URMALIYA AKSHAYVAT KISLAYASST. PROFESSOR (LAW) ROLL NO - 10

B.A. LL.B (HONS)

SEMESTER- 1

SECTION-A


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ACKNOWLEDGEMENT:

I would like to express my deepest praise and sincere gratitude to everyone who

Guided and supported me during the course of the project. This project would

Not have materialized without their support.

I express my gratitude to the teacher of the subject, Foundation Of Law, Ms. Deepika Urmaliya

who helped me in deciding the topic and whose invaluable guidance in this project helped me ina great way in its accomplishment. Without her guidance, the project would not have been the

same.

I further extend heartfelt gratitude to the library staff of Dr. RML National law

University, who provided me with the books and the computer facilities, which facilitated in thetimely completion of the project.


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TABLE OF CONTENTS:

1.Introduction- A brief overview of the project.2.Diceys concept of Rule Of Law

2.1 Brief description

2.2 Definitions

.

3.Adoption of Rule of Law and Supreme Court judgment.

4.Critiques

5.Conclusion

6.Bibliography


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1.INTRODUCTION:

The rule of law bakes no bread, it is unable to distribute loaves or fishes (it hasnone), and it cannot protect itself from external assault, but it remains the most

civilized and least burdensome conception of a state yet to be devised.

Michel Oakshott, 1983

It would not be very difficult to show that the phrase, the rule of law has becomemeaningless thanks to ideological abuse and general over-use. It may well have

become just another one of those self-congratulatory rhetorical devices that grace the

public utterances of Anglo-American politicians. No intellectual effort need thereforebe wasted on this bit of ruling class chatter.

Judith shakhlar, 1987

Thomas Paine in his pamphlet Common Sense quoted, THE LAW IS KING. For as in absolute

governments the King is law, so in free countries the law OUGHT to be King; and there ought to

be no other.

Rule of law can be traced back to Aristotle and has been championed by Roman jurists;

medieval natural law thinkers; Enlightenment philosophers such as Hobbes, Locke, Rousseau,

Montesquieu in their theory of social contracts and the American founders; German

philosophers Kant, Hegel and the nineteenth century advocates of the rechtsstaat; and in this

century such ideologically diverse figures as Hayek, Rawls, Scalia, Jiang Zemin and Lee KuanYew. The term Rule of Law is derived from the French phrase la principe de legalite (the

principle of legality) which refers to a government based on principles of law and not of men. It

also means that power should be exercised within the statutory ambit and purported exercise

of it would not just be ultra vires, but in a true sense of term arbitrary. According to A V Dicey

whenever there is discretion there is room for arbitrariness. Even in the most autocratic form of

ruling there is a legal framework according to which the government works. In a monarch this


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concept developed to control the power of arbitrary powers of the monarchs who claims to

have divine powers. Same way in a democracy it ensures that the holders of public policy must

be able to justify publicly that the exercise of powers is socially just and according to law.

Presently, the concept has altered into a new corollary stating that the holders of public powers

must be able to publicly justify that the exercise of power is legally valid and socially just. It isthe present day modernized name for natural law. In jurisprudence, it was known as jus

naturale by theRomans, law of god by the medievalists. Coming ahead in time, Rousseau,

Hobbes and Locke called it social contract or natural law. The modern man refers to it as the

rule of law

Efforts to specify the meaning of the Rule of Law commonly appeal to values and purposes that

the Rule of Law is thought to serve. First, the Rule of Law should protect against anarchy and

the Hobbesian war of all against all. Second, the Rule of Law should allow people to plan their

affairs with reasonable confidence that they can know in advance the legal consequences of

various actions. Third, the Rule of Law should guarantee against at least some types of official

arbitrariness.

Diceys Concept of Rule of Law

In his book, the law and the constitution, published in the year 1885, Dicey attributed three

meanings to the doctrine of rule of law:

1. Supremacy Of Law: It implies the absolute power of law, dominance and the supremacy of it.

It is opposed to the influence of arbitrary power and wide discretionary power. In Diceys

words, wherever there is discretion, there is room for arbitrariness and that in a republic no

less than under a monarchy discretionary authority on the part of the government must mean

insecurity for legal freedom on the part of its subjects.

2. Equality before The Law: The law administered should be the ordinary rule of law applicable

to all the people equally irrespective of caste and creed or religion. This doctrine has been also

included in the Indian Constitution in the form of Article 14. The excerpts of which can also beseen in Article 15. Dicey was of the view that, any encroachment on the jurisdiction of the

courts and any restrictions on the subjects unimpeded access to them are bound to jeopardize

his rights.

3. Predominance of Legal Spirit: The Constitution is not the source but the consequence of the

rights of the individuals. Here, Dicey emphasized on the role of the courts. Without an authority


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to protect and enforce the rights conferred upon citizen, their inclusion in a document etc. is of

little value. Mere inclusion is not authoritative and its provisions might be abridged, trampled

or overlooked.

Adoption of Rule of Law in India and Supreme Court Judgments:

Fundamental rights enshrined in part III of the constitution is a restriction on the law making

power of the Indian Parliament. It includes freedom of speech, expression, association,

movement, residence, property, profession and personal liberty. In its broader sense the

Constitution itself prescribes the basic legal system of the country. To guarantee and promote

fundamental rights and freedoms of the citizens and the respect for the principles of the

democratic State based on rule of law. The popular habeas corpus case, ADM Jabalpur v.

Shivakant Shukla is one of the most important cases when it comes to rule of law. In this case,

the question before the court was whether there was any rule of law in India apart from Article

21. This was in context of suspension of enforcement of Articles 14, 21 and 22 during the

proclamation of an emergency. The answer of the majority of the bench was in negative for the

question of law. However Justice H.R. Khanna dissented from the majority opinion and

observed that Even in absence of Article 21 in the Constitution, the state has got no power to

deprive a person of his life and liberty without the authority of law. Without such sanctity of life

and liberty, the distinction between a lawless society and one governed by laws would cease to

have any meaning

Applied to the powers of the government, this requires that every government authority which

does some act which would otherwise be a wrong (such as taking a mans land), or which

infringes a mans liberty (as by refusing him planning permission), must be able to justify its

action as authorized by law -and in nearly every case this will mean authorized directly or

indirectly by Act of Parliament.

The secondary meaning of rule of law is that the government should be conducted within a

framework of recognized rules and principles which restrict discretionary powers. The Supreme

Court observed in Som Raj v. State of Haryana that the absence of arbitrary power is theprimary postulate of Rule of Law upon which the whole constitutional edifice is dependant.

Discretion being exercised without any rule is a concept which is antithesis of the concept.

The third meaning of rule of law highlights the independence of the judiciary and the

supremacy of courts. It is rightly reiterated by the Supreme Court in the case Union of India v.


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Raghubir Singh that it is not a matter of doubt that a considerable degree that governs the lives

of the people and regulates the State functions flows from the decision of the superior courts.

Although, complete absence of discretionary powers, or absence of inequality are not possible

in this administrative age, yet the concept of rule of law has been developed and is prevalent in

common law countries such as India. The rule of law has provided a sort of touchstone to judge

and test the administrative law prevailing in the country at a given time. Rule of law,

traditionally denotes the absence of arbitrary powers, and hence one can denounce the

increase of arbitrary or discretionary powers of the administration and advocate controlling it

through procedures and other means. Rule of law for that matter is also associated with

supremacy of courts. Therefore, in the ultimate analysis, courts should have the power to

control the administrative action and any overt diminution of that power is to be criticized. The

principle implicit in the rule of law that the executive must act under the law and not by its own

fiat is still a cardinal principle of the common law system, which is being followed by India . In

the common law system the executive is regarded as not having any inherent powers of its

own, but all its powers flow and emanate from the law. It is one of the vital principles playing

an important role in democratic countries like India. There is a thin line between judicial review

and judicial activism. Rule of law serves as the basis of judicial review of administrative action.

The judiciary sees to it that the executive keeps itself within the limits of law and does not

overstep the same. Thus, judicial activism is kept into check. However there are instances in

India where judiciary has tried to infringe upon the territory of the executive and the

legislature. A recent example of this would be the present reservation scenario for the other

backward classes. The judiciary propagated that the creamy layer should be excluded from the

benefits of the reservation policy, whereas the legislature and the executive were against it.

As mentioned before Diceys theory of rule of law has been adopted and incorporated in the

Indian Constitution. The three arms judiciary, legislature and executive work in accordance with

each other. The public can approach the high courts as well as the Supreme Court in case of

violation of their fundamental rights. If the power with the executive or the legislature is

abused in any sorts, its malafide action can be quashed by the ordinary courts of law. This can

be said so since it becomes an opposition to the due process of law. Rule of law also implies a

certain procedure of law to be followed. Anything out of the purview of the relevant law can be

termed as ultra vires.

No person shall be deprived of his life or personal liberties except according to procedure

established by law or of his property save by authority of law. The government officials and the

government itself is not above the law. In India the concept is that of equality before the law

and equal protection of laws. Any legal wrong committed by any person would be punished in a

similar pattern. The law adjudicated in the ordinary courts of law applies to all the people with

equal force and bidingness. In public service also the doctrine of equality is accepted. The suits


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for breach of contract etc. against the state government officials, public servants can be filed in

the ordinary courts of law by the public.

In Chiefsettlement Commr; Punjab v. Om Prakash , it was observed by the supreme court that,

In our constitutional system, the central and most characteristic feature is the concept of rule

of law which means, in the present context, the authority of law courts to test all administrative

action by the standard of legality. The administrative or executive action that does not meet

the standard will be set aside if the aggrieved person brings the matter into notice.

In India, the meaning of rule of law has been much expanded. It is regarded as a part of the

basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by

Parliament. The ideals of constitution; liberty, equality and fraternity have been enshrined in

the preamble. Constitution makes the supreme law of the land and every law enacted should

be in conformity to it. Any violation makes the law ultra vires. In Kesavanda Bharti vs. State of

Kerala (1973) - The Supreme Court enunciated the rule of law as one of the most importantaspects of the doctrine of basic structure. In Menaka Gandhi vs. Union of India - The Supreme

Court declared that Article 14 strikes against arbitrariness. In Indira Gandhi Nehru vs. Raj

Narahr - Article 329-A was inserted in the Constitution under 39th amendment, which provided

certain immunities to the election of office of Prime Minister from judicial review. The Supreme

Court declared Article 329-A as invalid since it abridges the basic structure of the Constitution.

In the case ofBinani Zinc Limited vs. Kerala State Electricity Board and Ors. (2009) Justice S B

Sinha declare that It is now a well settled principle of law that the rule of law inter alia

postulates that all laws would be prospective subject of course to enactment an express

provision or intendment to the contrary. In the case ofGadakh Yashwantrao Kankarrao v.

Balasaheb Vikhe Patilthe ratio laid down was If the rule of law has to be preserved as the

essence of the democracy of which purity of elections is a necessary concomitant, it is the duty

of the courts to appreciate the evidence and construe the law in a manner which would

subserve this higher purpose and not even imperceptibly facilitate acceptance, much less

affirmance, of the falling electoral standards. For democracy to survive, rule of law must

prevail, and it is necessary that the best available men should be chosen as people's

representatives for proper governance of the country. This can be best achieved through men

of high moral and ethical values who win the elections on a positive vote obtained on their own

merit and not by the negative vote of process of elimination based on comparative demerits of

the candidates.

In the case ofSukhdev v. BhagatramMathew J. declared that Whatever be the concept of the

rule of law, whether it be the meaning given by Dicey in his "The Law of the Constitution" or the

definition given by Hayek in his "Road to Serfdom" and "Constitution of liberty" or the

exposition set-forth by Harry Jones in his "The Rule of Law and the Welfare State", there is, as


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pointed out by Mathew, J., in his article on "The Welfare State, Rule of Law and Natural Justice"

in "Democracy, Equality and Freedom," "substantial agreement is in juristic thought that the

great purpose of the rule of law notion is the protection of the individual against arbitrary

exercise of power, wherever it is found". It is indeed unthinkable that in a democracy governed

by the rule of law the executive Government or any of its officers should possess arbitrarypower over the interests of the individual. Every action of the executive Government must be

informed with reason and should be free from arbitrariness. That is the very essence of the rule

of law and its bare minimal requirement. And to the application of this principle it makes no

difference whether the exercise of the power involves affection of some right or denial of some

privilege."

In Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors a Constitution Bench of this

Court has laid down the law in the following terms:

Thus, it is clear that adherence to the rule of equality in public employment is a basic feature

of our Constitution and since the rule of law is the core of our Constitution, a court would

certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the

overlooking of the need to comply with the requirements of Article 14 read with Article 16 of

the Constitution.

In the case ofAmlan Jyoti Borooah Vs.State of Assam and Ors. It was held by S B Sinha that:

Equity must not be equated with compassion. Equitable principles must emanate from facts

which by themselves are unusual and peculiar. A balance has to be struck and the Court must

be cautious to ensure that its endeavour to do equity does not amount to judicial benevolence

or acquiescence of established violation of fundamental rights and the principles of Rule oflaw. Moreover, In the case of Bachan Singh v. state ofPunjab Singh Justice Bhagwati has

emphasized that rule of law excludes arbitrariness and unreasonableness. To ensure this, he

has suggested that it is necessary to have a democratic legislature to make laws, but its power

should not be unfettered, and that there should be an independent judiciary to protect the

citizens against the excesses of executive and legislative power. In addition to this in P.

sambamurthy v. state of Andhra Pradesh the SC has declared a provision authorizing the

executive to interfere with tribunal justice as unconstitutional characterizing it as violative of

the rule of law which is clearly a basic and essential feature of the constitution

Yet another case is ofYusuf Khan v. Manohar Joshi in which the SC laid down the proposition

that it is the duty of the state to preserve and protect the law and the constitution and that it

cannot permit any violent act which may negate the rule of law.

Hence, it is quite evident that the concept of rule of law is gaining importance and attention

and judicial efforts are made to make it more strong.


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Critiques

The opposite of rule of law is rule of person. The rule of law is necessarily rule by men, for the

law is inert. Men are necessary to enforce the law, but all men are prone to interpret the law

through their own knowledge, interpretation, and ethical sense. At best a set of laws are a well-

intended guidebook for the application of justice by the rule of men. In spite of an apparently

enviable position of the subjects in almost all the fields of industry, commerce, education,

transport, banking, insurance etc. there is interference by the administrative authorities with

the actions of the individuals, companies and other corporate and non-corporate bodies,

observes Justice Ramaswamy. There is a large amount of discretion involved in the

administrative work. For e.g.: for the purpose of national planning the executive is armed with

vast powers in respect of land ceiling, control of basic industries, taxation, mobilization of

labour etc. Even Parliament passes acts which are opposed to personal liberty such as

preventive detention act or maintenance of Internal Security act 1971, national security act

1980. Even the simplest thing like discriminate payment of employees can be termed as

inequality, as opposed to rule of law. The case Frank Anthony Employees Union v. Union of

India is concerned with discrimination in payment to employees, which was held to violate the

persons right to equality and unreasonable classification of pensioners was held to be arbitrary

in the case Nakara v. Union of India.

The main characteristic of the concept of rule of law is equality. This itself has been criticized

widely. The government possesses the inherent authority to act purely on its own volition and

without being subject to any checks or limitations. Total equality is possible to prevail in general

conditions, not only in India but in any country for that matter. For e.g.:

No case can be filed against the Bureaucrats and Diplomats in India

No criminal proceedings whatsoever shall be instituted or continued against the President, or

the Governor of a state, in any court during his term of office. No process for the arrest orimprisonment of the President, or the Governor of a state, shall issue from any court during his

term of office.

The privileges enjoyed by the members of parliament with respect to legal actions against

them.

There are separate tribunals for administrative cases.


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Thus, on the basis of these points one can say that equality in India is not prevalent in its

concrete sense. The Diceys concept of rule of law has also been criticized. Law changes with

time. As the society evolves, even the law of the country should develop. Some view the rule of

law as nothing other than a tool of the powerful to maintain the status quo in the legal system.

The general consensus is that the status quo, far from being neutral, serves to protect thepowerful at the expense of the disempowered. This lack of neutrality in the rule of law runs

contrary to the ideal, traced to Aristotle, that in light of the law every person should be equal;

that it is one's humanity, not one's status in society that requires that laws be justly applied.

More extreme critics claim that "[t]he liberal paradigm has destroyed the rule of law." The

rationale behind this statement is that, considering the real state of the world, many equate the

rule of law with legality. However, this is a flawed equation as "[l]egality simply means that

there are laws and says nothing about the quality of those laws." Hence, there are many

lacunas in the concept of rule of law which servers the reason of non-implementation of the

concept properly.

7. CONCLUSION:

When Dicey described the rule of law a hundred years ago, he wrote that whenever we talk of

Englishmen as loving the government of law, or of the supremacy of law as being a

characteristic

Of the English constitution, [we] are using words which, though they possess a real significance,

are

Nevertheless to most persons who employ them full of vagueness and ambiguity.

The rule of law is an idea about law, justice, and morality. It considers what laws, norms, rules,

procedures, systems, and structures should be and what they should not be. Norms should be

proclaimed publicly by the peoples and/or their appropriate representatives. Inherent in this

formulation are three realities. One is that the law governs people as well as the government

itself. Next, persons should obey the law. Third is that the norms we call law need to be obey

able - not only in the sense of being known, knowable and predictable, but in the deepest sense

of being just. It is a necessary element for democracy and good governance and also assist to

facilitate stability and peace. According to some, it may help prevent wars from occurring in the


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first place. Moreover, Human rights can be considered as a check over the criticism of rule of

law i.e. absolutism and despotism. The rule of law in the Indian society has not achieved the

intended results is that the deeply entrenched values of constitutionalism or abiding by the

Constitution of India have not taken roots in the society. Corruptions, Terrorism etc. are all

antithesis to Rule of Law. In recent times, common law traditions, the Constitution of India, andthe perseverant role of the judiciary have contributed to the development of rule of law. But on

occasions we have slipped back into government by will only to return sadder and wiser to the

rule of law when hard facts of human nature demonstrated the selfishness and egotism of man

and the truth of the dictum that power corrupts and absolute power corrupts absolutely. A few

examples of how our judicial system has upheld the rule of law and ensured justice is clearly

seen in the creation of new avenues seeking remedies for human rights violations through PIL

pleas and promotion of genuine interventions by the judiciary in the areas of bonded and child

labour, prostitution, clean and healthy environment etc. but on the darker side there have been

violations of fundament rights as well. For e.g. the discrimination of eunuchs based on their

class and gender makes the community one of the most disempowered groups in Indian societ

Eunuchs might have an accepted place in Indian society, but it is a place pretty much at the

bottom of the social heap making them not just a sexual but also a highly deprived social

minority. The recent example is of the singur incident a Division Bench of the High Court

comprising Honourable Chief Justice S S Nijjar and Honourable Justice Pinaki Chandra Ghosh

also took suo moto note of the incident.

it seems as if the Police Department which is under the control of the Home Department is

not even aware of the existence of Article 21 of the Constitution of India..This Article

specifically guarantees that no person shall be deprived of his life or personal liberty except

according to procedure established by law. Oblivious of the aforesaid guarantee, the police has

resorted to gun firing on a large crowd protesting against the proposal to acquire their land.

There was a total absence of rule of law in west Bengal during this period. For a purposeful rule

of law to exist in a society, democracy is required and for a democratic state the prevalence of

rule of law is required. Thus, it can be concluded that democracy and rule of law are

interdependent and one cannot flourish without the other. India is worlds largest democracy;

however the prevalence of rule of law is generally under threat here. It is imperative that

efforts are made to further nurture and preserve a rule of law society in India without which

our fundamental credentials as a democracy will be seriously undermine


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8. BIBLIOGRAPHY:

Books:

1. Dicey: Law of the Constitution, 8th Ed

2. Shukla V. N.; THE CONSTITUTION OF INDIA, Eastern Book Company, Lucknow, 2004

3. Dicey, A. V.; THE LAW AND THE CONSTITUTION, 1915

4. I.P. Massey, AMINISTRATIVE LAW

5. Dr. L M Singhvi, CONSTITUTION OF INDIA

6. Arvind Datar, COMMENTARY ON THE CONSTITUTION OF INDIA

Websites:

1.http://www.oycf.org/Perspectives/5_043000/what_is_rule_of_law.htm

2. http://www.legalserviceindia.com/article/l285-legal-position-of-Eunuchs.html
http://www.oycf.org/Perspectives/5_043000/what_is_rule_of_law.htmhttp://www.oycf.org/Perspectives/5_043000/what_is_rule_of_law.htmhttp://www.oycf.org/Perspectives/5_043000/what_is_rule_of_law.htmhttp://www.legalserviceindia.com/article/l285-legal-position-of-Eunuchs.htmlhttp://www.legalserviceindia.com/article/l285-legal-position-of-Eunuchs.htmlhttp://www.legalserviceindia.com/article/l285-legal-position-of-Eunuchs.htmlhttp://www.oycf.org/Perspectives/5_043000/what_is_rule_of_law.htm

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