Rule of Law – Indian Polity Notes

Rule of Law means no individual in country is over and above the law and all are equally subjected to the law, irrespective of their position.

The term also means that in case of violation, all individuals shall be punished irrespective of his caste, creed, race, wealth etc.

Famous British Jurist A V Dicey explained features of British Constitution, according to him British political system is based on Rule of Law, which denotes constitutionalism. Constitutionalism denotes the executive acts according to the constitution, not in arbitrary manner.

Dicey has given three features of rule of law found in Britain.

1. No one will be punished for the act, which is not a crime, at the time of commission of the act.
2. Equality before law, it means absence of privileges. It means everyone is equal in front of ordinary courts. It means there will be no privileges for kings, princes or lords.
3. In Britain, even when citizens do not have fundamental rights, their freedom is secured because courts in Britain recognise customary law.

In a democratic institution, the rule of law places an obligation on all individuals to abide by the law, and the legislation itself must be just. It should not be arbitrary or tyrannical.

The ultimate aim of the rule of law, like some other constitutional concepts, is to promote people’s fundamental rights and constitutional protections. The rule of law is a concept that ensures that the three organs of the government i.e., legislature, executive, and judiciary do not utilise the law of the territory or nation to subjugate or limit the freedoms guaranteed by the constitution of different countries

Rule of Law and Indian Constitution:

The concept of Rule of Law owes its origin to Britain. Indian Constituent Assembly has borrowed this concept from there.

It also means ‘Supremacy of Law’ i.e. No one, even the organs of the Government is above law. Though the Parliament has been granted legislative powers it doesn’t means it is sovereign and is above the law. It is the constitution which is law of land is ultimate authority.

Exceptions to Rule of Law:

In India, Dicey’s Rule of Law cannot be applied in strict sense as the constitution provides exceptions to the Rule of Law.

1. Discretionary Powers to Executive:
   1. Pardoning Powers of President and Governors.
   2. Sending report to President on failure of constitutional machinery in state by the Governor
   3. Reserving bills for Presidential consideration by the Governor
   4. Police can arrest without court warrant in case of cognisable offences.
2. Immunities and Privileges:
   1. The President/Governor is not answerable to the court of law in discharge of his executive functions.
   2. No criminal proceedings whatsoever can be instituted against President or Governor of state, while he is in office.
   3. No civil proceedings in which relief is claimed can be filed against the President or Governor except after an expiration of a 2 month notice that is served on him.
   4. Under International laws, the visiting heads of state, heads of government, ministers, officials and foreign diplomats who are posted in the country are not subjected to jurisdiction of local courts in discharge of their official functions

Rule of Law and Rule by Law:

Parameters	Rule of Law	Rule by Law
Meaning	Rule of Law means no one is above law and all are equally subjected to the ordinary law	Rule by law means power is power is exercise by a tyrant in absolute manner
Arbitrariness	Rule of Law ensures there is no arbitrariness	Tyrant or Dictator has all powers and uses those powers in arbitrary manner
Nature	Fair to all citizens	Not fair, unjust
Obedience	Citizens abide the rule by themselves.	Authority imposes rules and make the general public follow against their will.
Violation	Courts punish for violation according to the law	In case violation of orders of tyrant, he can punish according his wishes.
Protection of Rights	Rights of citizens are protected by Courts	Citizens don’t have any rights.

Principles of Rule of Law:

1. Law is supreme and nobody is above the law.
2. All the things should be done according to a law not as per whim.
3. No person should be suffered except for the breach of law.
4. Absence of arbitrary is the soul of the rule of law.
5. Equality before the law and equal protection of the law.
6. Speedy trial.
7. The fair and just procedure should be conducted.
8. Independent and impartial judiciary.

Significance:

Rule of Law forms edifice of modern egalitarian welfare state like India, despite of it not being followed in stricter sense but in diluted sense, it forms soul of modern nation state. Supreme Court in several landmark judgements have upheld the rule of law by restraining arbitrariness.

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