Doctrine of Rule of Law - Comparative Analysis

Constitutional Principle-Doctrine of 'Rule of Law'

Comparative Analysis

'Rule of law'is the basic rule of governance of any civilized policy. The scheme of the Constitution of India is based upon the concept of Rule of law. Everyone, whether individually or collectively, is unquestionably under the supremacy of law. For achieving the establishment of rule of law, the Constitution has assigned the special task to the judiciary in the Country. The maintenance of dignity of courts is one of the cardinal principles of rule of law in a democratic setup1. Rule of law is the supreme manifestation of human civilization and culture and is a new 'lingua franca' of global moral thought. It is an eternal value of constitutionalism and inherent attribute of democracy and good governance.

The term 'Rule of law' is derived from the French phrase 'la principe de legalite' which means the 'principal of legality'. It refers to 'a government based on principles of law and not of men'. In other words, the concept of 'la Principe de legalite' is opposed to arbitrary powers. It is a legal principle, of general application, which is sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition called a "Rule," because in doubtful or unforeseen cases it is a guide or norm for their decision.

The Rule of law, sometimes called "the supremacy of law", provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application. Equality before law is co-relative to the concept of rule of law for all round evaluation of healthy social order2. The concept of Rule of law is of old origin. It is an ancient ideal, and was discussed by Ancient Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote: 'Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state'. Likewise, Aristotle also endorsed the concept of Rule of law by writing that "law should govern and those in power should be servants of the laws.'

In UK, Sir Edward coke is said to be the originator of this concept, when he said that the king must be under the god and law and thus vindicated the supremacy of law over the pretensions of the executives. Later, Prof. Albert Venn Dicey developed this concept. He was an individualist. He wrote about the concept of rule of law at the end of the golden Victorian era of laissez faire in England. That was the reason why Dicey's concept of the rule of law contemplated the absence of wide powers in the hands of governmental officials. According to him, wherever there is discretion, there is room for arbitrariness. In India, the concept of Rule of law can be traced to Upanishad. 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. By its powers the weak shall prevail over the strong and justice shall triumph. Thus, in monarchy, the concept of law developed to control the exercise of arbitrary powers of the monarchs who claimed divine powers to rule. In democracy, the concept has assumed different dimension and means that the holders of public powers must be able to justify publicly that the exercise of power is legally valid and socially just. The Rule of law is viable and dynamic concept and like many other concepts, is not capable of any exact definition. This, however, does not mean that there is no agreement on the basic values which it represents. The term of Rule of law is used in contradistinction to rule of man and rule according to law. Even in the most autocratic forms of government there is some law according to which the powers of the government are exercised but it does not mean that there is Rule of law.

Therefore, the Rule of law means that the law rules, which is based on the principles of freedom, equality, non-discrimination, fraternity, accountability and non-arbitrariness and is certain, regular and predictable, using the word law in the sense of 'Jus' and 'lex' both. In this sense, rule of law is an ideal. It is modern name for Natural law. In ancient times, man has always appealed to something higher than which is his own creation. In Jurisprudence, Romans called it 'jus naturale.' Mediaevalists called it the 'law of god'. Hobbes, Locke, Rousseau called it a 'social contract' or natural law and the modern man calls it 'Rule of law'.

There are number of elements of Rule of law which are as follows :

(a) Abhorrence of arbitrary power Every person in society is governed by law, including governmental officials and law enforcement officials. The court can apply the doctrine of ultra vires equally to every government agency and official for acts that are outside the authority conferred by law. Also, a person can only be punished for a breach of an existing law or regulation, and never for breach of a law not existing at the time doing something.

(b) Equality before the law Courts must apply laws equally to all people regardless of their race, class wealth, religion, etc. Every accused person should be entitled to a fair trial, to be informed of the allegations against have an opportunity to rebut the charge against him, to have an opportunity to rebut the charge against him and to have his conduct assessed by impartial judges.

(c) A formal, rational Court System Formality and rationality describe a system with much predictability and little discretion, a system with regular, open and stable procedure. The advantage of such a system is that its behavior is consistent and objectively verifiable.

(d) Judicial Independence and Separation of Power

The judiciary should be independent of the legislative and executive, and every judge should be free to decide matters before him without any improper influences, inducements or pressures. The power of a government should be spit into three are adequate checks and balances to minimize the possibility of the abuse of power. All state functionaries must at all times act in accordance with the law and no act of state should be autocratic, oppressive, capricious or against the law.

Position of Doctrine of Rule of law in United Kingdom

The Rule of law, in UK, was developed over the centuries as a brake on arbitrary power. The modern concept of Rule of law owes much to the great battles between the English kings and their subjects, the struggle for supremacy between parliament and Stuart kings, and finally the war between the British Empire and its American Colonies. o The Great Charter- Magna Carta On June 15, 1215 in the meadows of Runnymede, King John and his rebellious barons agreed to the great charter known as Magna Carta.

The great charter was the first significant written instrument limiting the power of the king and confining him to what the barons regarded as good governance. These promises were a bargain between the king and the feudal lords dictated by the force of arms. Winston Churchill, in his History of English Speaking peoples, writes about the glorious legend of the charter of an Englishman's liberties. 'The original Articles of the barons on which Magna Carta is bases exist today in the British Museum. In the next hundred years it was reissued 38 times, at first with a few substantial alterations but retaining its original Characteristics'. He concludes, 'Now for the first time the king himself is bound by the law.

The root principle was destined to survive across the generations and raise paramount long after the feudal background of 1215 had faded in the past. The charter became in the process of time an enduring witness that the power of the crown was not absolute'¦. And when in subsequent ages the state swollen with its own authority, has attempted to ride roughshod over the rights and liberties of the subject it is to this doctrine that appeal has again and again been made, and never, as yet, without success.

There is a law which is above the king and which even he must not break. This reaffirmation of a supreme law and its expression in a general charter is a great work of Magna Carta; and this alone justifies the respect in which men have held it'. o Dicey's Concept of Rule of Law Dicey developed the contents of his thesis by peeping from a foggy England into a sunny France. In France, Dicey observed that the government officials exercised wide discretionary powers and if there was any dispute between a government official and private individual it was tried not by an ordinary court but by a special administrative court. The law applicable in that case was not ordinary law but a special law developed by the administrative court. From this Dicey concluded that this system spelt the negation of the concept of rule of law which is secret of Englishman's liberty. Therefore, dicey concluded that there was no administrative law in England. In England, the doctrine of rule of law was applied in concrete cases. If a man is wrongfully arrested by the police, he can file a suit for damages against them as if the police were private individuals. In Wilkes v. wood3 it was held that an action for damages for trespass was maintainable even if the action complained of was taken in pursuance of the order of the minister. In the leading case of Entick v. Carrington4 a publisher's house was ransacked by the king's messengers sent by the secretary of state. In an action for trespass, 300 were awarded to the publisher as damages. In the same matter, if a man's land is compulsorily acquired under an illegal order, he can bring an action for trespass against any person who tries to disturb his possession or attempts to execute the said order. Dicey's formulation of the concept of Rule of law, which according to him forms the basis of the English constitutional law, contains three principles:-

1. Absence of discretionary power in the hands of the governmental officials. By this Dicey implies that justice must be done through known principles. Discretion implies absence of rules, hence in every exercise of discretion there is room for arbitrariness.

2. 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 land. In this sense, the rule of law implies:

i) Absence of special privileges for a government official or any other person

ii) All the persons irrespective of status must be subjected to the ordinary courts of the land. iii) Everyone should be governed by the law passed by the ordinary legislative organs of the state.

3. The rights of the people must flow from the customs and traditions of the people recognized by the courts in the administration of justice. Dicey's thesis has its own advantage and merits. The doctrine of rule of law proved to be effective and powerful weapon in keeping administrative authorities within their limits. It served as a touchstone to test all administrative actions.

The broad principle of rule of law was accepted by almost all legal systems as a constitutional safeguard. The first principle (Supremacy of law) recognizes a cardinal rule of democracy that every government must be subject to law and not law subject to the government. It rightly opposed arbitrary and unfettered discretion to the governmental authorities, which has tendency to interfere with rights of citizens. The second principle (equality of law) is equally important in a system wedded to democratic polity. It is based on the well-known maxim 'however high you may be, law is above you'and 'all are equal before the law'The third principle puts emphasis on the role of judiciary in enforcing individual rights and personal freedoms irrespective of their inclusion in a written constitution. Dicey feared that mere declaration of such rights in any statute would be futile if they could not be enforced. He was right when he said that a statute can be amended and fundamental rights can be abrogated. We have witnessed such a situation during emergency in 1975 and realized that in absence of strong and powerful judiciary, written constitution is meaningless.

Dicey never spoke of equality under the rule of law as rigid. He was not blind to inequalities glaring inequalities in the British legal system, not to the contradictions involved in the supremacy of the parliament and the guarantees of equality of all classes to the ordinary law administered by the courts. His dislike of the French system of administrative tribunals was the most vulnerable in his enunciation. Dicey's antagonism was based on his supposition that law meant fixed rules, and administration involved exercise of discretion not controlled or guided by rules. His dislike of exercise of discretionary authority, if literally understood, may appear illogical, for in every decision, judicial or administrative, there is vast field of discretion. Administration of justice is not a mechanical process inexorably leading to a set result from a given set of facts. It involves a large area of discretion. It would be a perversion of true quality of justice to attribute to the adjudicator or judge of a mechanical approach.

There is again no reason to suppose that an administrative authority exercising power vested by law does not do justice merely because have has discretion in formulating his line of action. Dicey contrasted law with administrative action and discretion, and asserted that Rule of law means absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, the existence of arbitrariness, of prerogative or of wide discretionary authority of the government. Even in those days discretion as they exercised it now. But what Dicey probably criticized was exercise of discretionary powers not supported by law. He was not wrong in asserting that in Britain the court was not powerless to grant relief, in respect of affairs and disputes in which the government and its servants were concerned, but in France the administrative tribunal alone could grant relief.

Position of Doctrine of Rule of law In India

The constitutional principle of equality under Article 14 is inherent in the rule of law. India has been hailed as the world's largest and most vibrant democracy. The world is full of praise for the rule of law and democratic freedoms which, in South Asia, are enjoyed only by those living in India. More than Sixty Years of Democracy have, however, failed to improve the lives of the masses in India. India has a written constitution; a body of laws, subordinate to the constitution, dealing with various subjects; rules and regulations, executive instructions & Conventions. All these may be broadly termed as 'law' and their operation to subject population is the 'Rule of Law.' India is, in many senses, a typical example of a modern nation state. It contains within itself most of that which commends a state to the universal body politic. It has managed to stay within the definition of democratic. It has an elaborate, written constitution clearly delineating the three pillars of the modern nation state viz. the legislature, the executive and the judiciary, and demarcating their respective roles. The fundamental rights embodied in the Indian constitution in terms virtually identical term to the universal declaration of human rights act as guarantee that all Indian citizens can and will lead their lives in peace as long as they obey the law. These civil liberties take precedence over any other law of the land. They include individual rights common to most liberal democracies, such as equality before the law, freedom of speech and expression, freedom of association and peaceful assembly, freedom of religion, and right to constitutional remedies, such as Habeas Corpus, for the protection of civil rights.

These rights are fundamental rights because they are certain basic human rights which every human being has the right to enjoy for a balanced and harmonious growth of his or her personality. These rights are guaranteed in the constitution of India and help in the growth and development of responsible citizens. The constitution provides for safeguards against any violation of these rights. These safeguards can be enforced in a court of law, hence they are justifiable rights. They check the government from making laws that go against fundamental rights. Furthermore, they act as bulwark against various forms of exploitation which take place against women, children and minority communities. On paper, India also has a fairly elaborate and developed system of justice administration. The best and the most liberal strands of Anglo-Saxon jurisprudence have been interwoven into the foundations of our legal system.

Indian Judiciary and Rule of Law

The Hon'ble Supreme Court and the various High Courts through Judicial activism and public interest litigation, other bodies such as the National Human Rights Commission and State Human rights Commissions and various non-governmental organizations have made significant contributions towards protecting freedoms and preventing human rights violations and abuses, thereby ensuring that the Rule of Law and respect for citizens' rights do not remain only on paper but are incorporated in practice too. With the Constitution 1st Amendment Act, 1951, the status of Rule of law in India was shocked. The question which came up for consideration in Shankari Prasad v. Union of India5 was whether the fundamental rights can be amended under Art 368.

The first Amendment Act, 1951 inserted Art 31 A and Art 31 B in the Constitution of India and it was challenges on the ground that it violated or abridges the right conferred under Part III of the Constitution. The Hon'ble Supreme Court held that Parliament has the power to amend Part III of the Constitution under Art 368 as under Art 13 law means any legislative action and not a constitutional amendment.

Therefore, a constitutional amendment would be valid if abridges any of the fundamental rights. Again, the question came up for consideration in Sajjan Singh v. State of Rajasthan6 in which the Hon'ble Supreme Court approved the majority judgment in Shankari Prasad case and held that amendment of the Constitution means amendment of all provisions of the Constitution.

Hon'ble Chief Justice Gajendragadkar held that if the framers of the constitution intended to exclude fundamental rights from the scope of the amending power they would have made a clear provision in that behalf. Both these cases were overruled by the Hon'ble Supreme Court in a Golak Nath v. State of Punjab7 and held that Parliament have no power to amend the Part III of the Constitution so as to take away or abridges the fundamental rights and thus, at the end the Rule of law was sub served by the Judiciary from abridging away. But this was not the end. The Rule of law was trumpled down with the Constitution 24th Amendment Act, 1971. Parliament by the way of 24th Amendment inserted a new clause (4) in Art 13 which provides that 'nothing in this Article shall apply to any amendment of this constitution made under Art 368'. It substituted the heading of Art 368 from 'procedure for amendment of Constitution' to 'Power of Parliament to amend Constitution and Procedure thereof'. The 24th Amendment not only restored the amending power of the parliament but also extended its scope by adding the words 'to amend by way of the addition or variation or repeal any provision of this constitution in accordance with the procedure laid down in the Article'.

The Constitution 24th Amendment Act, 1971 was challenged in the popular & most controversial case of his Holiness Keshavanand Bharti v. State of Kerala8. The Hon'ble Supreme Court by majority overruled the decision given in Golak Nath's case and held that parliament has wide powers of amending the constitution and it extends to all the Articles, but the amending power is not unlimited and does not include the power to destroy or abrogate the basic feature or framework of the constitution. There are implied limitations on the power of amendment under Art 368. Within these limits Parliament can amend every Article of the Constitution. Thus, Rule of law prevailed. Justice H R Khanna played a vital role in preserving the Rule of law although he concurred with the majority decision.  Habeas Corpus Case- A Black Mark on Rule of Law

The widespread detentions of political leaders and prominent citizens led to a spate of Habeas Corpus Petition seeking the invalidation of detention orders, in courts all over India. Nine High Courts took the correct view that, notwithstanding the suspension of fundamental rights under Art 14, 19, 21 & 22, the petitions were maintainable. The High Court's judicially reviewed detentions orders inter alia on the grounds of ultra vires, breach of statutory provisions, mala fide or other illegalities. Judicial review of administrative action is an essential part of rule of law9 and so is independence of judiciary10. Non-arbitrariness is a necessary concomitant of the rule of law11. The Supreme Court in A D M Jabalpur v. Shivkant Shukla12 by majority 4:1 over turned the verdicts of these High Courts and held that neither detainees nor anyone on their behalf had right to move the courts for habeas corpus in view of the suspension of fundamental rights. This decision even excluded challenges to detention orders on the Act or was mala fide i.e. not passed by an authorized person or issued against a wrong person. The majority consisted of Chief Justice A N Ray, Justice M H Beg, Y V Chandrachud and P N Bhagwati ' the lone dissenter was Justice H R Khanna. Strong Comments were made against the majority judgments and the role of Justice H R Khanna was appreciated and applauded all over the world.

Mr. V M Tarkunde, an eminent lawyer and editor of The Radical Humanist, characterized the majority judgments as 'Judicial Suicide'. H M Servai, a leading Commentator on Constitutional Law and former Advocate General of Bombay wrote:

The Four judgments delivered in the darkest hour of India's history independence, and they made that darkness complete'¦Ordinary men and women could understand Satan saying, 'evil be thou my good', but they were bewildered and perplexed to be told by four learned judges of the Supreme Court that in substance the founding fathers had written into the emergency provisions of our constitution 'lawlessness be thou our law.' The Supreme Court reached its finest hour in the unforgettable dissent of Justice H R Khanna. He refused to bow down to the powers that be and immortalized the great spirit of the judiciary and the rule of law in his stinging dissent, observing: It has been argued that suspending the right of a Person to move any court for enforcement of right to life and personal liberty is done under a constitutional provision and therefore it cannot be said that the resulting situation would be the absence of the rule of law.

This argument, in my opinion, cannot stand close scrutiny for it tries to equate illusion of the rule of law with the reality of rule of law. In his autobiography, Justice Khanna recounts that he told to his Younger sister Santosh, 'I have prepared a judgment which is going to cost me the chief Justiceship of India'. That came to be true and Khanna was superseded by Justice Beg during Emergency. He thereupon resigned. But any research on Rule of law is incomplete without a reference to the editorial in the New York Times which appeared on April 30, 1976, shortly after Habeas Corpus case. The Paper wrote: if India ever finds its way back to the freedom and democracy that were proud hallmarks of its first 18 years as an independent nation, someone will surely erect a monument to Justice H R Khanna of the Supreme Court. It was Mr. Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the court's decision upholding the right of PM Indira Gandhi's Government to imprison political opponents at will and without court hearings. Indian democrats are likely to remember only in infamy the four judges who obediently over turned the decisions of a half dozen lower courts scattered across India which had ruled in defiance of the government'.

But they will long cherish the lonely judge who said, in words reminiscent of other enduring declarations for freedoms:

The Principle that no one shall be deprived of his life and liberty without the authority of law is rooted in the consideration that life and liberty are precious possessions'. The submission of an independent judiciary to absolute government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court's decision appears close to utter surrender. How the emergency came to an end and Indira Gandhi was defeated at the polls is another story. Neither Chief Justice Ray nor Chief Justice Beg were able to live down their judgments. Justice Chandrachud and Justice Bhagwati both became the Chief Justice of India after the Emergency was withdrawn on the basis of seniority but they never commanded the respect, affection and reverence which Justice Khanna Commanded. Justice Khanna was in the mould of Chief Justice Coke who could withstand 'the frowns of power'and the refused to be 'Craven and cringing'.

Rule of Law as unfolded by the Indian Judiciary The Indian Supreme Court is a forum with unparalleled vast general jurisdiction. It is not a constitutional court, though much of its business relates to issues concerning the enforcement of fundamental rights.

The law laid down by the Court is declared to be binding on all courts throughout the territory of India and by necessary implication upon citizens and state actors. Further, not merely all authorities of the state are obligated to aid the enforcement of the apex judicial decisions but also the Court is empowered to do 'complete justice', an incredible reservoir of plenary judicial power, which it has used amply in the past two decades. Legislative overruling of apex judicial decisions occurs but infrequently; however, an extraordinary device called the 9th Schedule has been invoked since the adoption of the Constitution to immunize statutes placed in it from the virus of judicial review, even when ex facie the legislations inscribed therein remain fundamental rights violate. In a recent decision, the Supreme Court has assumed powers of constitutional superintendence over the validity of laws thus immunized. In the early years, the Court took the view that although the Directives cast a 'paramount'duty of observance in the making of law and policy, their explicit non- justifiability meant that the rights provisions overrode the Directives. This generated high ''intensity conflict between Parliament and the Court, resulting in a spate of constitutional amendments. In the process, much constitutional heat and dust has also been generated, in the main over a 'conservative'judiciary that seemed to frustrate a 'progressive'Parliament committed to agrarian reforms and redistribution leading to Court 'packing'Indian '' style. Over time, two kinds of adjudicative responses developed.

First, the Supreme Courts began to deploy the Directives as a technology of constitutional interpretation, favouring an interpretative style that fostered, rather than frustrated, the Directives. This 'indirect'justiciability has contributed a good deal towards fructification of the substantive/ 'thick'versions of the Indian Rule of Law. Second, in its more activist incarnation since the eighties, the Court has begun to translate some Directives into rights. Perhaps, a most crucial example of this is the judicial insistence that the Directive prescribing free and compulsory education for young persons in the age group 6-14 is a fundamental right. The Court here generated a constitutional amendment enshrining this right as an integral aspect of Article 21 rights, to life and liberty. Simultaneously with the adoption of the Constitution, Indian Justices strove to erect fences and boundaries to the power of delegated legislation (processes by which the executive power actually legislates.) They conceded this power but with a significant accompanying caveat: the rule-making power of the administration ought not to usurp the legislative function of enunciation of policy, accompanied by prescriptive sanctions. Thus came into being the 'administrative law explosion', where Justices did not so much invalidate delegated legislation but vigorously policed its performance. The executive may make rules that bind; but courts made it their business to interrogate, and even invalidate, specific exercises of administrative rule-making. A stunning array of judicial techniques over the review of administrative action has been evolved.

Position of Doctrine of Rule of law

In United States The rule of law is considered a bedrock principle of our nation and central to ordered liberty. This series is intended to explore the unique nature and significance of the American rule of law to the moral, political and economic well-being of our nation. Some asserts that three characteristics of a strong constitutional republic include certainty, consistency and continuity which are 'core characteristics of the rule of law and justice', but it does not mean without change. Change can occur, and in fact needs to occur, in accordance with the founding principles in day today governance as well as in effecting necessary major change. When the 'law'is favoring an unjust clause such as slavery or abortion. The American rule of law was designed to function with certainty, consistency and continuity in contrast to other forms of arbitrary, uncertain and inconsistent governance. To rightly administer the American rule of law it is necessary to acknowledge the relationship and continuity between the American declaration of independence and US Constitution. The necessary elements for existence of the Rule are the consistency, predictability, and transparency of the law. The core that provides for these elements is a constitution. The Rule has never existed or survived in a country that did not have a working constitution. In order to introduce the Rule to a developing country, it is first necessary to develop a stable economy.

Similarly, when economies in already developed countries are suffering such is often accompanied by a degradation of the Rule and weakening of the constitution. That unfortunately is the state of the United States in 2008. Further, as Professor Ronald Cass, author of "The Rule of Law in America", points out, "The nature of the judicial system is critical to the Rule of Law. Impartial judges, governed by clear legal rules, committed to enforcing the rules as written, independent of political influence are essential if law is to be a reliable guide to individuals and a constraint on those in power." The fundamental freedoms outlined in the Bill of Rights represent the limits on what government can and cannot do to its citizens. Individual states also have their own Bill of Rights in the state constitutions. These civil liberties continue to be key components of the Rule of Law because they provide legal limits to government action and protect what the founders believed were Americans' fundamental rights. The one right, above all others, that makes the Rule work is the "freedom of speech." The ability to speak one's mind, to challenge the political orthodoxies of the times, and to criticize the policies of the government without fear of recrimination by the state are the things that are the essential distinction between life in a free country and in a dictatorship. This was found to be true in the Magna Carta and carried forward in our own Bill of Rights. The long established concept behind the Rule of Law can again be found in our own Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...."

Doctrine of Rule of law

Comparative Analysis

The above description shows that 'Rule of law'is an oxygen for the good governance of a nation or country. In common parlance, it is not a matter of controversy that in a particular state, whether Rule of law is present or not because its existence is in various facets. It may be possible that in Constitution of some nations it is apparently mentioned but in some it is not explicitly defined, but it doesn't mean that there is no 'Rule of Law'. The main purpose of this rule is to provide individual liberty, equality of law and restriction over arbitrariness of any institution of the state. The real interpretation of this principle is that any task which is required for the benefit of the public must be regulated through law. Many people do its interpretation wrong, actually it reflects a code of conduct to perform any task. In United Kingdom, this principle is very significant and there is a myth that law is supreme, no man above the law but in real sense, Rule of law means the guidelines for a particular task, it is not static, it is a dynamic concept. The change in law according to the change in society is quite required, but in United Kingdom the whole judicial decisions are based on 'Rule of Law'which also shows the supremacy of parliament in other sense. It is so because to make law is the fundamental work of legislature or parliament. But this concept is criticized by the terms 'Due Process'and 'Procedure Established by Law'in United States and India respectively, but it does not mean that these countries has no 'Rule of law'. In Indian Constitution, Article 14 reflects the existence of Rule of law and in United states, the rule of law is considered a bedrock of the nation and central to ordered liberty. It is the backbone of the 'Bill of Rights'by inhering the features of certainty, consistency and continuity.

For maintaining the sovereignty, 'law'is considered to be a model for the conduct. In many places some people do not make a difference between 'Rule of law', owing to which the sense of this principle become ambiguous and difficult to adopt these measures is a correct sense. The constitutional principle of equality is inherent in the rule of law. However, its reach is limited because its primary concern is not with the content of the law but with its enforcement and application. The rule of law is satisfied when laws are applied or enforced equally, that is, even handedly, free of bias and without irrational distinction. The concept of equality allows differential treatment but it prevents distinctions that are not properly justified. Justification needs each case to be decided on a case-to-case basis13. One of the important element of the 'rule of law'is legal certainity14. When tenders are invited, the terms and conditions must indicate with legal certainty, norms and benchmarks. If there is vagueness or subjectivity in the said norms it may result an unequal and discriminatory treatment, it may violate the doctrine of 'level playing field'15. Hence, it is appropriate to say that 'Rule of Law'is a symbol of good governance and plays a pivotal role to establish liberty.

End Notes:-

1) Arundhati Roy, In re, (2002) 3 SCC 343,351 (paras 1 and 2); AIR 2002 SC1375 2) Dalmia Cement (Bharat) Ltd. Vs Union of India (1996) 10 SCC 104(para 18) 3) Wilkes Vs Wood 1763 19 St Tr 1153 4) Entick Vs Carrington 1765 19 St Tr 1030 5) Shankari Prasad Vs Union of India, AIR 1951 SC 455 6) Sajjan Singh Vs State of Rajasthan, AIR 1965 SC 845 7) Golak Nath Vs State of Punjab, AIR 1971 SC 1643 8) Keshvanand Bharti Vs State of Kerela, AIR 1973 SC 1461 9) State of Bihar Vs Subhash Singh (1997) 4 SCC 430(para 3), AIR 1997 SC 1390 10) High Court of Judicature at Bombay Vs Shrish Kumar Rangrao patil (1997) 6 SCC 11) Style (Dress land) Vs Union territory, Chandigarh (1999) 7 SCC 89 (para 2) 12) ADM Jabalpur Vs Shivkant Shukla AIR 1976 SC1207 13) M.Nagaraj Vs Union of India (2006) 8 SCC 212, 217(para 118) 14) Reliance Energy Ltd. Vs Maharashtra State Road development corporation Ltd.(2007) 8 SCC 15) Reliance Energy Ltd. Vs Maharashtra State Road development corporation Ltd.(2007) 8 SCC

 

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