I– Internal AssessmentSub.-Administrative LawTOPIC-“critical essay on application of doctrine of rule of law in india”Submittedto -Dr. Atmaram Shelke Submittedby – Anjali Sahajwani160101220182ndYear. L.
L.B. CONCEPTOF RULE OF LAWTheconcept of Rule of law is of old origin and is an ancient ideal.
It wasdiscussed by ancient Greek philosophers such as Plato and Aristotle around 350BC. Plato wrote: “Where the law is subject to some other authority and has noneof its own, the collapse of the state, in my view, is not far off; but if lawis the master of the government and the government is its slave, then thesituation is full of promise and men enjoy all the blessings that the godsshower on a state”. Likewise, Aristotle also endorsed the concept of Ruleof law by writing that “law should govern and those in powersshould be servants of the lawsThephrase ‘Rule of Law’ is derived from the French phrase ‘la principe delegalite’ (the principle of legality) which refers to a government based onprinciples of law and not of men.
Ruleof law is one of the basic principles of the English Constitution and thedoctrine is accepted in the Constitution of U.S.A and India as well. The entirebasis of Administrative Law is the doctrine of the rule of law.
Thearticulation ‘rule of law’ is one which, throughout the years, has beenutilized to pass on a wide assortment of thoughts and has various implicationsand results including their reactions. In like manner speech it is frequentlyutilized basically to portray the situation in a nation where, in theprinciple, the law is watched and arrange is kept – i.e., as an articulationsynonymous with ‘peace’. To open attorneys, be that as it may, the expressionpasses on something somewhat more exact. For them, the expression isinseparably connected with the works of Dicey.
Accordingto Prof. Dicey, rules of law contain three principles or it has three meaningsas stated below:1. Supremacyof lawThe rule of law requires both citizensand governments to be subject to known and standing laws.
The supremacy of lawalso requires generality in the law. This principle is a further development ofthe principle of equality before the law. Laws should not be made in respect ofparticular persons. As Dicey postulated, the rule of law presupposes the absenceof wide discretionary authority in the rulers, so that they cannot make theirown laws but must govern according to the established laws. Those laws oughtnot to be too easily changeable. 2.
Equalitybefore law.Equality before the law, also knownas: equality under the law, equality in the eyes of the law, or legalequality, is the principle that each independent human being must be treatedequally by the law and that all people are subject to the same laws of justice Therefore,the law must guarantee that no individual nor group of individuals should beprivileged or discriminated against by the government. Equality before the lawis one of the basic principles of liberalism.3. Predominanceof legal spirit.The rights are a result of court judgments rather than frombeing enshrined in the Constitution. ORIGIN OF RULE OF LAWIN INDIAInIndia, the idea of Rule of law can be followed back to the Upanishads. Inpresent day also, the plan of the Indian Constitution depends on the idea oflead of law.
The designers of the Constitution were well familiar with theproposes of run of law as propounded by Dicey and as adjusted in itsapplication to British India. It was in this way, in the wellness of thingsthat the establishing fathers of the Constitution gave due acknowledgment tothe idea of govern of law. Theregulation of Rule of Law as articulated by Dicey has been embraced andconcisely consolidated in the Indian Constitution. The goals of theConstitution viz; equity, freedom and correspondence are cherished in thePreamble itself (which is a piece of the Constitution).TheConstitution of India has been made the supreme law of the country anddifferent laws are required to be in conformity with it. Any law which is foundinfringing upon any arrangement of the Constitution, especially, the crucialrights, is pronounced void. The Indian Constitution likewise joins the rule ofequity under the watchful eye of law and equivalent security of laws counted byDicey under Article 14 . Theexceptionally fundamental human ideal to life and individual freedom hasadditionally been revered under Article 21.
Article 19(1) (an) of the IndianConstitution ensures the third guideline of the Rule of law (the right to speakfreely and Expression). No individual can be sentenced any offense with theexception of infringement of a law in drive at the season of the commission ofthe demonstration charged as an offense is likewise extremely all aroundperceived in the Indian Constitution. The standards of twofold danger andself-implication additionally discovered its legitimate place in theConstitution.
Articles 14, 19 and 21 are basic to the point that they arelikewise called the brilliant triangle Articles of the Indian Constitution.TheConstitution likewise guarantees a free a fair Judiciary to settle question andgrievances for infringement of key rights by righteousness of Articles 32 and226. In Union of India v.
President, Madras Bar Association, the Supreme Courtheld that “Administer of Law has a few aspects, one of which is thatdebate of natives will be chosen by Judges who are autonomous and unbiased; andthat question as to legitimateness of demonstrations of the Government will bechosen by Judges who are free of the Executive.” EquityR.S. Pathak of the Hon’ble Supreme Court has watched that “It must berecollected that our whole constitutional framework is established on theadminister of law, and in any framework so outlined it is difficult to thinkabout real power which is subjective in character and goes past the limits ofreason.” RULEOF LAW IN INDIATheidea of Rule of Law penetrates into the Indian Legal System through theConstitution.
Part III of the Constitution of India goes about as a restrictionon the different organs practicing powers. While giving the rights on thesubjects, it forces confinements on the power that can be worked out. Under ourConstitution, we have received the British System of Rule of Law. Nonattendanceof self-assertive power is the main fundamental of Rule of Law where upon our entireconstitutional framework is based. Governance must be by control, and notsubjective, unclear and fanciful.
Under our Constitution, the Rule of Lawinfests over the whole field of organization and each organ of the state ismanaged by Rule of Law. The idea of Rule of Law can’t be maintained in soul andletter if the instrumentalities of the state are not accused of the obligationof releasing their capacity in a reasonable and just manner.JUDICIARY AND RULE OFLAWTheIndian Judiciary has assumed an instrumental part in forming Rule of Law inIndia. By receiving a positive approach and powerfully deciphering theconstitutional arrangements, the courts have guaranteed that the Rule of Lawand regard for subjects’ rights don’t stay just on paper yet are fused in soulas well.Inthe case of A.D.
M. Jabalpur v. Shiv KantShukla,1KHANNA, J. observed:”Ruleof Law is the antithesis of arbitrariness. Rule of Law is now the accepted normof all civilized societies. Everywhere it is identified with the liberty of theindividual.
It seeks to maintain a balance between the opposing notions ofindividual liberty and public order.” In the case ofBachhan Singh v. State of Punjab2itwas held that the Rule of Law has three basic They are:-1)Law making must be essentially in the hands of a democratically electedlegislature;2)Even in the hands of the democratically elected legislature, there should notbe unfettered legislative power; and3)There must be independent judiciary to protect the citizens against excesses ofexecutive and legislative power.Inthe case of Maneka Gandhi v. Union ofIndia3theHon’ble Supreme Court; established the Rule of Law that no person can bedeprived of his life and personal liberty except procedure establish by lawunder Article 21 of the Constitution. Thus, Article 21 requires the followingconditions to be fulfilled before a person is deprived to his life and liberty:Theremust be a valid law.
· Thelaw must provide procedure.· Theprocedure must be just, fair and reasonable.· Thelaw must satisfy the requirement of Article 14 and 19. THEDARKER SIDE OF RULE OF LAWTheinstance of ADM Jabalpur ShivakantShukla is a standout amongst the most essential situations with regards tolead of law.
For this situation, the inquiry under the steady gaze of the courtwas ‘whether there was any lead of law in India separated from Article 21’.This was with regards to suspension of authorization of Articles 14, 21 and 22amid the decree of a crisis. The appropriate response of most of the seat wasin negative for the topic of law.
However Justice H.R. Khanna disagreed fromthe lion’s share sentiment and watched that “Even without Article 21 inthe Constitution, the state has no energy to deny a man of his life and freedomwithout the expert of law.
Without such holiness of life and freedom, thequalification between an untamed society and one represented by laws would stopto have any significance… “Thelarger part judges couldn’t take a firm stand and translated the matchlessquality of law to mean amazingness of the tradition that must be adhered to andnot matchless quality of the constitutional soul which is administer of law.Themain characteristic of the concept of rule of law is ‘equality’. This itselfhas been criticized widely.
The government possesses the inherent authority toact purely on its own volition and without being subjected to any checks orlimitations. Total equality is possible to prevail in general conditions, notonly in India but in any country for that matter. For e.g.: no case can befiled against the bureaucrats and diplomats in India and the privileges enjoyedby the members of parliament with respect to legal actions against them.
LEGALSYSTEMAlegal framework is a piece of any society. The society is considerably biggerthan the legal framework. Legal framework exists one next to the other topolitical framework, financial framework, social frameworks, religiousframeworks, and so on. These demonstration and entomb act together to keep thedevelopment of the society going on. Actually, at whatever point law is laudedor censured, it is law in the feeling of framework that is included. Somethingelse, law as a train is only the same as history, topography, human science,brain research, and so forth. It is hypothetical exchange of specific parts ofhuman life. Law holds predominant position among these controls for its down toearth utility which does not concern law all things considered but rather isworried about law as framework.
Law as a framework produces comes about whethergreat or terrible, attractive or less alluring. It is because of these outcomesthat legal framework is complimented and censured both in the meantime andunexpectedly for a similar outcome. Legalframework speaks to linkage of laws and in any country is one part of theadministration or the expert and each structure with a specialist has one orother legal framework. Cases of structure may incorporate a country, anindustrial facility, a school, a club or something else. Every one of thesestructures have some specialist and an expert has law as one and imperativeorgan of keeping the expert alive and going on.
IMPORTANTCOMPONENTS OF RULE OF LAW REFORM 1. COURT REFORMS1. Theproductivity of the courts is an imperative part in manage of-law changes asthe presence of a legal is a basic part of the govern of law. 2. Toexpand responsibility and straightforwardness, data innovation frameworks mightbe introduced to give more noteworthy community. To expand autonomy of thecourts, the legislature can furnish them with subsidizing that will enable themto make their own particular budgetary and authoritative choices. 3. Recentforceful legal activism can likewise be viewed as a piece of the endeavors ofthe Constitutional Courts in India to set up rule-of-law society, whichsuggests that regardless of how high a man, might be the law is constantlyabove him.
Court is likewise attempting to distinguish the idea of administerof law with human privileges of the general population. The Court is creatingprocedures by which it can constrain the legislature to submit to the law aswell as to make conditions where individuals can create abilities to practicetheir rights legitimately and definitively. Nonetheless, the productivity ofthe courts is an imperative part in manage of-law changes as the presence of alegal is a basic part of the govern of law. 2. LEGAL RULES Toexpand responsibility and straightforwardness, data innovation frameworks mightbe introduced to give more noteworthy community. To expand autonomy of thecourts, the legislature can furnish them with subsidizing that will enable themto make their own particular budgetary and authoritative choices. · Institutional Encouragement on theGlobal Level Late forceful legal activism canlikewise be viewed as a piece of the endeavors of the Constitutional Courts inIndia to set up run of-law society, which suggests that regardless of how higha man, might be the law is constantly above him.
Court is likewise attemptingto distinguish the idea of administer of law with human privileges of thegeneral population. The Court is creating procedures by which it can constrainthe legislature to submit to the law as well as to make conditions whereindividuals can create abilities to practice their rights legitimately anddefinitively. However, the separation of powers should be maintained.
3. LEGAL RULES · Anotherimportant rule-of-law reform goal is to build the legal rules. As Fullerstated, “laws must exist.”4. INSTITUTIONAL ENCOURAGEMENT ONTHE GLOBAL LEVEL · Tosupport additional country-particular improvement, in the mid-1990s the WorldBank and the International Monetary Fund (IMF) started molding money relatedhelp on the execution of the administer of law in beneficiary nations. Theseassociations had given guide to help activities in authoritative drafting,legitimate data, open and lawful instruction, and legal changes, includingelective question determination. By molding reserves on the foundation of the ruleof law, the World Bank and the IMF likewise would like to diminish debasement,which undermines monetary advancement by driving off speculators and keepingthe free stream of products and capital.
Right now, in its SustainableDevelopment Goals (SDG), the United Nations (UN) additionally champions the runof law as a vehicle to realize more feasible natural practices. CONCLUSIONRuleof law is mostly believed to be a modern concept which is a gift of democracyhowever it is something which is fundamental to the very basic idea of goodgovernanceTalkingabout adopting the Present and Imminent Danger Test in the Indian conditionsthe Supreme Court has unquestionably had a go at embracing the rule now andagain. One of them is the situation of R.P Ltd versus Proprietors, IndianExpress Papers, Bombay (P) Ltd. the Supreme Court considered the topic ofholding a harmony between two intrigue i.
e Freedom of Speech and organizationof Justice. The Present and Imminent Danger Test was depended upon tolegitimize the request of directive issued by the Court precluding the IndianExpress News Papers from composing anything about issue of convertibledebentures by Reliance Petro Chemicals. It, accordingly appears the SupremeCourt has acknowledged the rule of Present and Imminent Danger Test to confineFreedom of Speech and Expression.Wehave to concentrate on the shortcomings and escape clauses with the goal thatwe can evacuate or plug them. Having said this, we can’t avoid ourselves fromincluding that it isn’t that lone the three organs of the State are to bereprimanded for the inauspicious condition of lead of law in the generalpublic. Different on-screen characters like the media, common society and eventhe normal resident can’t flee from their particular obligations.
Consequentlyit is similarly essential that every one of the performing artists of thegeneral public guarantee for the support of Rule of Law.1 1976 AIR 1207, 1976 SCR 1722AIR1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR1453 1978 AIR 597, 1978 SCR(2) 621