The concept of rule is an ancient ideal. It has been discussed by many philosophers such Plato and Aristotle in around 350BC. According to Plato,“if law is a subject of other authority, then the collapse of the state is not so far; but if law is superior to government and government is its slave, then all men can enjoy the blessing of god”. In a similar way, Aristotle states,“law should govern and those in power should be servants of the laws.”
The term ‘rule of law’ has been derived from the French phrase ‘la principe de legalite’ which means that government is based on the principles of law and not of men. The concept of rule of law is one of the basic principles of constitution of UK, USA, and India as well as. The originator of this concept is the Chief Justice of King James I’s reign, Sir Edward coke. He believed that king should be under god and law and the supremacy of law should be maintained against the executive and nothing is above law.
This concept was further developed by a British jurist and constitutional theorist Albert Venn Dicey. He wrote a book ‘The Law of the Constitution’ in 1885, which was based on three distinct ideas on rule of law:
- Absence of discretionary powers and supremacy of law: no man is above law
- Equality before law: every man, irrespective of his rank, is subject to the ordinary law
- Predominance of legal spirit: the rights and liberties should come from traditions and customs of the people.
Evolution of Rule of Law
The struggle for protection of human rights is as old as humanity in society. The philosophers sought for legal ideas to protect the individual under the concept of natural law that is the protection of human dignity and worth of the person. In the Islamic tradition, the right to brotherhood and equality before law is given to every individual. In Christian tradition, there is a great demand that society recognizes fundamental human freedom. In Hindu Buddhist tradition, they have the noble idea of divine in man.
After the two world wars, the social, political and economic disruptions led to realization that the concept of Rule of law given by Dicey, required clearer definition and the democratic rights given by Hugo Grotius were indeed of universal application and it presented a need for action plan to protect human rights. This led to the adoption of the charter of the UN and the subsequent Universal Declaration of Human Rights formulated by the UN in1948 which gives a list of human rights and it includes fundamental rights as an essential for a state which should apply to human race irrespective of religion, race, caste, sex, birth or other status. The ideals of the declaration and charter has been specific in three international covenants:
- The international covenant on economic, social, and the cultural rights
- The international covenant on civil and political rights
- The optional protocol
Law acts as instrument of social change as well as social control and hence, it is always dynamic. As the pattern of human relation changed due to technological change, rule of law has also changed, adapted and expanded to meet the changer circumstances.
The thirty articles of UN Declaration of Human Rights reveals that preamble theorizes that basic aim of the international bill of human rights to be the recognition of the inherent dignity and to provide common standards of achievement for all people and these rights are foundation of peace, freedom and justice in the world.
Rule of law under the Indian Constitution
In India, the theory of rule of law can be tracked back from Upanishads. The modern governing is also based upon the concept of rule of law. The framers of the Indian Constitution were very well versed with the concept of rule of law given by AV Diceyand as modified in its application. The concept has been adopted and incorporated in the Indian constitution very succinctly. The preamble which is a part of the constitution, itself have the idea of justice, liberty and equality.
The rule of law says that all the decisions should be made by application of known principles and it should be understood and predictable to the citizens. The rule of law has several angles, one of them is resolving the disputes of citizens will be done the judges who are independent executives. Another on is equality before law. The equality should be enforced by an independent judicial forum. The constitutions like ours which is based on Westminster model generally have judicial separation and separation of power.
Independence of judiciary
There are some hallmarks of judiciary like independence, fairness, impartiality and reasonableness. Without independence, impartiality cannot blossom. It is like if impartiality is the soul of judiciary, independence is the life-blood of judiciary. For a perfect judicial atmosphere, freedom from pressure and independence are the factors, by which he can work with absolute commitment. Impartiality depends on practical and procedural factors such as freedom from influences and security of tenure, and not only on ethical, philosophical or moral aspects.
An independent judiciary has been blessed with the power of judicial review of legislative and executive acts. It is critical because judiciary is the institution that enforces the two key mechanisms that ensures the rule of law: separation of powers and checks & balances among different power. It is the judiciary who resolves the disputes that arise between those who frame the law and those who implement the laws that is legislative and executive.
Rule of law dictates that a functionary of a public authority or a State, cannot be given absolute unfettered discretion. It goes against the concept of equality and is incompatible with the concept of Rule of Law.