Who What When Where Why 2.01 Preamble and Amendment Notes

By Bhavani Kumar, SLS Pune

Editor's Mark: The concept of Rule of Law is that the state is governed, non by the rule or the nominated representatives of the people but past the law. The Establishment of India intended for India to be a country governed by the rule of law. It provides that the constitution shall be the supreme ability in the solid ground and the law-makers and the executive derive their confidence from the organisation. The paper begins by providing an introduction to Dicey's three pillars on what a Political science moldiness be based on and how the Amerindic Constitutio n fulfills these triplet requirements. Future, it discusses the theoretical and application of this prescript of law in Bharat.

INTRODUCTION TO RULE OF LAW

The concept of Rule of Law is that the state is governed, not by the ruler or the appointed representatives of the people but past the constabulary. A county that enshrines the linguistic rule of law of nature would be one wherein the Grundnorm[i] of the country, or the basic and core law from which all other law derives its authority is the maximum office of the state. The monarch or the representatives of the republic are governed away the Torah derived impossible of the Grundnorm and their powers are limited past the law. The Riley B King is not the natural law but the jurisprudence is king[two]

The origins of the Rule of Law possibility can be traced back to the Ancient Epistle to the Romans during the formation of the first republic; IT has since been championed away several medieval thinkers in Europe much as John Berry Hobbs, John Locke, and Rousseau through the social contract theory. Indian philosophers so much as Chanakya have also espoused the convention of law hypothesis in their own way, by maintaining that the King should be governed by the word of law.

The formal pedigree of the word is attributed to Sir. Edward Coke, and is derived from French phase 'la principe de legalite' which means the principle of legality. The firm basis for the Rule of Law theory was expounded by A. V. Chancy and his theory on the convention of law corpse the well-nig fashionable. Dicey's theory has three pillars supported on the concept that "a government should constitute founded on principles of law and not of men", these are:

Supremacy of Police:

This has always been the elemental understanding of the rule of law that propounds that the law rules over all people including the persons administering the law. The lawmakers need to impart reasons that can be justified under the law while exercising their powers to form and administrate the law.

Equality earlier the Law:

While the principle of supremacy of law sets in berth cheques and balances concluded the government on making and administering the jurisprudence, the principle of equality ahead the law seeks to guarantee that the law is administered and enforced in a just manner. Information technology is non decent to have a fair law but the law must be applied in a honorable manner as well. The law cannot discriminate between people in matters of sex, religious belief, race etc. This concept of the rule of law of nature has been statute in the Indian Constitution under Article 14 and the Universal Declaration of Human Rights subordinate the Preamble and Clause 7.

Pre-dominance of collection spirit:

In including this As a necessity for the rule of legal philosophy, Dangerous's belief was that it was low to simply include the above two principles in the constitution of the rural area or in its other laws for the state to be one in which the principles of rule of law are being followed. At that place moldiness live an enforcing authority and Dicey believed that this authority could be found in the courts. The courts are the enforcers of the dominion of law and they must be both open and free from all outside influences. Thus the exemption of the judicial becomes an meaningful pillar to the dominate of law.

In modern idiom Rule of Law has come to be understood A a system which has safeguards against formalized arbitrariness, prevents anarchy and allows people to project the legal consequences of their actions.

Hypothetical APPLICATION OF RULE OF LAW IN Bharat

Indian adopted the Common police force system of jurist delivery which owes its origins to British jurisprudence, the basis of which is the Rule of Law. Dicey splendidly maintained that the Englishman does not need Administrative jurisprudence or any word form of scrawled law to livelihood checks on the government but that the Reign of Law and law would be enough to ensure the absence of executive whimsey. While Republic of India also accepts and follows the conception of natural law, there are formal and written laws to ascertain compliance.

The Constitution of India premeditated for India to be a country governed away the rule of law. It provides that the constitution shall be the supreme power in the shoot down and the legislative and the administrator come their dominance from the constitution. Whatever law that is made aside the legislature has to be in conformity with the Constitute failing which it will be declared invalid, this is provided for below Article 13 (1). Article 21 provides a further see to it against arbitrary executive action by stating that no person shall be deprived of his life or liberty except in conformity with the procedure legitimate by law.

Clause 14 ensures that all citizens are equidistant and that no person shall live discriminated on the basis of sexuality, organized religion, race or place of birth, lastly, it ensures that there is a interval of power between the three wings of the government and the executive director and the legislature have got no influence on the judicature. By these methods, the constitution fulfills completely the requirements of Chanceful's theory to be recognized As a country following the Linguistic rule of Law.

The Supreme Court of the United States of Indian has further strengthened this chemical mechanism through its various judgments, the foremost of them beingness, A D M Jabalpur v. Shivkanth Shukla [iii] In this case, the wonder before the court was 'whether thither was any rule of law in India apart from Article 21'. This was in the context of suspension of enforcement of Articles 14, 21 and 22 during the declaration of an emergency. The answer to the majority of the Bench was in disinclined for the question of law. Withal, Justice H.R. Khanna dissented from the majority opinion and observed that:

"Even in absence of Clause 21 in the Constitution, the say has got no ability to impoverish a person of his life and liberty without the authority of constabulary. Without such sanctity of life and liberty, the distinction between a wide-open society and one governed by laws would cease to have any meaning…Rule of Law is now the accepted norm of all advanced societies"[iv]

In Chief Settlement Commr; Punjab v. Om Prakash, it was observed away the Supreme Court that, "In our constitutional scheme, the central and most characteristic feature is the concept of rule of constabulary which means, in the present context of use, the authority of law courts to test all body action aside the criterional of legality. The administrative Oregon administrator action mechanism that does not fit the touchstone will be set by if the aggrieved somebody brings the matter into notice." In the case of Satvant Singh Sawhney v. D Ramarathanana [v] the United States Supreme Court has held that every executive action, if it operates to the prejudice of any person, must be supported by some legislative bureau.

In  Secretary, State of Karnataka and Ors. v. Umadevi (3)and Ors[vi] a Constitution Bench of this Court has laid down the law of nature in the following footing: "Thus, it is legible that adherence to the rule of equality publically use 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 record with Clause 16 of the Constitution."

Virtually famously in the case of Kesavananda Bharati v. State of Kerala [vii] the High court held that the Dominate of Law is an essential part of the alkaline structure of the constitution and Eastern Samoa such cannot embody revised past whatsoever Act of Parliament, thereby showing how the law is superior to all some other authority of men.

PRACTICAL APPLICATION OF RULE OF Practice of law IN INDIA

Critiques let a great deal maintained that the Rule of Law in India is merely a theory with no practical application. While it cannot be denied that the country is one where corruption runs rampant and according to 2012 Domain Justice Project data, India fares advisable on openness of government and democratic controls, in the category limited government powers, which evaluates the checks on government, India ranks 37th of the 97 countries surveyed around the public, is forward among five in its part and comes in endorsement out of 23 lower-middle-income countries. Yet the rule of law that exists in theory does not always exist in practice. When it comes to procedural effectuality, India fares sick. In the categories of the absence of corruption and order and security measur, India ranks 83rd and 96th globally.[viii]

In addition to the problem faced in Bharat attributable putrescence in the legislating and Justice Department delivery systems, there likewise exists the trouble of old Torah still being in situ. India does not adopt a 'sunset' clause in its laws and post-independence the Indian Independence Act provided that whol laws existing under the colonial rulers would continue to exist under the new organisation unless explicitly revoked aside the sevens.

While this did provide the nation with a firm canonical system of laws, thereby preventing a position of lawlessness in the immediate wake of independency, both of these Pentateuch were drafted to suit the environment of those time and they become hard to interpret in the current environment. This leads to ambiguity and endless judicial proceeding in an attempt to interpret the provender.

While these problems persist it is important to note that the constitutional mechanism has provided enough safeguards to endure that the Rule of Police force in some form will always persist. One of the most important factors contributing to the maintenance of the Rule of Police force is the activity of the courts in the interpretation of the law. It is rightly reiterated by the Dominant Court in the case Unionised of Bharat v. Raghubir Singh  that it is not a matter of doubt that a hefty degree that governs the lives of the citizenry and regulates the Department of State functions flows from the decision of the superior courts.

Most famously in the display case of Maneka Gandhi v. Unionised of India [ix] the court ensured that exercise of power in an arbitrary manner by the government would not contravene the rights of the people and in Kesavananda Bharati[x] the court ensured that laws could not be made that essentially go against the Rule of Law by saying that the basic structure could non be breached.

Apart from the judicial decision, the inherent chemical mechanism in itself provides for the protection of the prevai of law through and through the institution of monitoring agencies. Spell on that point take over been numerous scams that have come to hand in the last few years, the fact that must also be noted is that these scams have come to hand and the judicature delivery mechanics has been set in motion against the perpetrators.

The theatrical role of the Central Weather eye Commission and the Controller and Attender General in the exposure of these discrepancies is praiseworthily and this shows how the law has provided for its possess protection by putting in place multiple levels of safeguards which ensure that it will be effective at some level. The Election Military commission of India, a constitutional body has too been undertaking the undertaking of ensuring clear and fair elections with some grade of efficiency.

CONCLUSION

The creation fathers of India accomplished what the rest of the populace though inconceivable- lay down a country that would follow the letter of the law and implement the Rule of Law. In all matters such arsenic the protection of the rights of the people, equal treatment before the law, protection against excessive whimsey, the Constitution of India has provided sufficiency mechanisms to ensure that the Prescript of Law is followed.

Through its decisions, the Courts have strived to reenforce these mechanisms and ensure smooth justice delivery to every citizens. Problems such as outdated legislation and overcrowded courts are only small hindrances and bodies such as the Law Commission of India work towards ironing exterior these problems with the aim of achieving a system where there are no barriers to the smooth operation of the Rule of Law.

Formatted connected March 16th, 2019.

REFERENCES:

[i] 'Kelsen's Theory of Grundnorm', Mridushri Swarup <http://manupatra.com/roundup/330/Articles/Clause%201.pdf> (Last retrieved on 20.09.2014)

[ii] "Common Sense', Thomas Paine < http://www.gutenberg.org/files/147/147-h/147-h.htm> (Last retrieved on 20.09.2014)

[triplet] AIR 1967 SC 1207

[iv] A D M Jabalpur v. Shivkanth Shukla, Broadcast 1976 SC 1207, para 154

[v] AIR 1967 SC 1836, Santa Maria de Belem 33

[sestet] Aviation 2006 Sc 1806

[vii]AIR 1973 SC 1461

[octonary] 'Rule of Law in Bharat', <hypertext transfer protocol://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=61fb07af-8c80-4868-b707-b9939e9dae87&txtsearch=Subject:%20Administrative%20Law>  (Last retrieved: 23.09.2013)

[ix] AIR 1978 SC 597

[x] Ibid

Who What When Where Why 2.01 Preamble and Amendment Notes

Source: https://www.lawctopus.com/academike/rule-of-law-in-india/