A Rule of Law - an Integral Part of Indian Constitution

INFOKARA RESEARCH ISSN NO: 1021-9056

A RULE OF LAW - AN INTEGRAL PART OF INDIAN CONSTITUTION

N. Karunakaran1 Dr. M. Nirmal Kumar2 1Assistant Professor, TheTamilNadu Dr.Ambedkar Law University, Chennai, e-mail Id:[email protected], 2Assistant Professor, TheTamilNadu Dr.Ambedkar Law University, Chennai, e-mail Id: [email protected]

ABSTRACT

The author emphasizes that the rule of law has been established by the courts in India only through various constitutional cases, even though there is no single word of rule of law as such, mentioned in Indian constitution. The Indian courts are empowered to review the legislations passed by the legislature and order issued by the executive since independent judiciary is an element in the basic structure of Indian constitution, and also is a product of vast experiences that the Indian political system underwent. There are a number of provisions in Indian constitution dealing with the rule of law explicitly that the courts, not only upheld in several cases but also through which the courts made new laws and try to end arbitrariness in the governance. The rule of law and the Independent judiciary alone can be genuine protectors of the Democracy and they areresponsible to sustain the Democracy, even though many shortcomings in our democracy.In this context, the researcher has analysed the various provisions of Indian constitutional law dealing with the concept of rule of law.

Keywords: Provision of Rule of Law, Court Judgements upholding the Rule of Law from various provisions of constitutions

INTRODUCTION

The Constitution of India drafted by the Indian constitutional framers who had been taught and influenced by the British laws and English jurisprudence which is completely based on the rule of law. The Rule of law may be product of the development of common law in England. The common law ensures the absence of executive Arbitrariness and rule of man, that India also accepted and follows the concept of natural law that our written laws are to assure compliance.

The Rule of law in India guarantees the primacy of law, obedience to the law and judicial independence, even though there is no single word of the rule of law as such in our constitution. The independent judiciary has explained and interpreted, in several constitutional cases the rule of law as part of basic structure of Indian constitution and also it is a system which has safeguards against official arbitrariness, prevents, anarchy and permits the people to plan the legal consequence of their actions.

The modern concept of the rule of law means that the administration is to be carried out, at least in theory, in obedience to laws, which clearly defined the rights, privileges and obligations of the subjects and not according to the discretion of the rules. It is the fundamental principle, necessary for democracy and good governance and also ensures stability and peace.

Volume 9 Issue 1 2020 32 http://infokara.com/ INFOKARA RESEARCH ISSN NO: 1021-9056

The rule of law is the product not of a political revolution but of the past experiences of English laws and the research and deliberation of a body of eminent representatives of the people in the constituent assembly.

STATEMENT OF THE PROBLEM

Whether the constitutional law provisions and perspectives embeds the concept of rule of law and whether the rule of law is integral part of Indian constitution or not. No where the term of rule of law mentioned in this constitution, even then, The constitution of India upholds the rule of law.

RESEARCH METHODOLOGY

This paper is purely a doctrinal work. The work is fully relied upon the secondary forces which include various books, articles published in journals, magazines and internet services.

REVIEW OF LITERATURE

The books provide various constitutional law provisions for the paper. A) Prof.Dr.K.L.Bhatia1, cases and materials onconstitutional law of Indian case laws. Jain, M.P.2, Indian constitutional law. Pandey J.N3. The constitutional law of India shukleV.N. the constitution of India.

The rule of law is the most celebrated concept in the history of democracy, the meaning of it, still is not clear as it is interpreted differently by different nations and thus it needs a multi-dimensional aspect to understand this concept. Attempts have been made to define the rule of law by many great philosophers one of which is also Aristotle, he tried to understand the concept by equating rule of reason, whereas others related rule of law with natural justice1.

The rule of law, in brief, means that the government is run in accordance with the law of the land. The rule of law is just opposite to rule of men. Law means law of land which is defined under ARTICLE 13 of Indian constitution, rules means law rules since, there is no physical existence of law so, Law means government based on principle. It means all the acts of government should be reasonable and according to law and also it ensures the absence of governmental arbitrariness.

THE COURTS OF INDIA, UPHOLD THE CONCEPT OF RULE OF LAW FROM VARIOUS PROVISIONS

The concept of rule of law has received immensed attention from the supreme court of India in its various judgement. In ADM Jabalpur (1976) the court declared that the constitution in itself is rule of law and no one can rise above the constitutional rule of law. The court has declared ( in Arundhate Roy 2002 and Pratapsingh, 1964 for example) that the constitution has its foundation in the concept of the rule of law and that it enshrines and guarantees the rule of law.

1. Som Raj. Vr. State of Haryana, it was held by Supreme court that normally, the order of appointment would be in order of merit of candidates from the select list, even when the discretion is conferred on an executive authority, it must be exercised in a reasonable manner and should not be exercised arbitrarily. The absence of arbitrary power is the first postulate of the rule of law upon which our whole constitutional edifice is based. If the

Volume 9 Issue 1 2020 33 http://infokara.com/ INFOKARA RESEARCH ISSN NO: 1021-9056

discretion is exercised without any principle or without any rule, it is a situation amounting to the autithesis of rule of law.

2. Rule of law as a feature of basic structure in KesavanandaBharathi-V- state of kerala, some of the judges constituting majority, were of the opinion that the rule of law has an element of the doctrine of basic structure of the constitution, that even the entire power of parliament cannot reach to amend.

3. In Indian Nehru Gandhi -Vs-Raj Narain, wherein the apex court invalidated clause (4) of ART 329-A inserted in the constitution by the constitution (39th Amendment) act, 1975, to immunize the election dispute to the office of the Prime minister from any kind of judicial review, the following facts of rule of law may be called out- that the rule of law postulates the manifested of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action is any sphere, that the jurisdiction of the supreme court to try a case on merits cannot be taken away without injury to the basic, fundamental principle of the rule of law and of justice within a politically demonstrate constitutional structure.

4. The Right to equality of the Indian constitution (ART-14) is most important one which is upholding the basic principle of rule of law in our society at arbitrary state action, both administrative and legislative. The new orientation being given to ART-14 by the courts has been explained by Bhagavati, J., in Bachan Singh Vs state of Punjab5 that rule of law which permeates the entire fabric of the Indian constitution excludes arbitrariness, wherever we find arbitrariness or unreasonableness there is denial of rule of law.

5. In D.K.BasuVs state of west Bengal, the supreme court held that torture by police struck a blow at the rule of law custodial violence has been held calculated assault on human dignity, perhaps one of the worst crimes in a civilized society governed by the rule of law. The court held that any such acts would fall within the inhibition of ART CLE-21.

6. However the judgment of ADM Jabalpur Vs S.Shukla4 restricted the two essential principles of rule of law. In this, the judge said, “Rule of law is the antithesis of arbitrariness, rule of law is now the accepted norm of all the civilized societies, every whereit is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notion of individual liberty and public order. In every state the problem arises of reconciling human rights with the requirement of public interests. Such harmonizing can also be attained by the existence of independent courts which can hold the balance between citizen and the state and compel government to conform to the law”.

7. In chief settlement commissioner, Punjab-Vs-Om Prakash, it has observed by the supreme court that, “In Our constitutional system, the central and most characteristics feature is the concept of rule of law which means, in the present contact, the authority of law courts to test all administrative action by the standard of legality, the administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the matter in.

From above narration, it appears that the rule of law has no fixed or articulate connotation though the Indian court refer to this phrase time and again. The broad emphasis of rule of law is on the absence of any centre of unlimited or arbitrary power in the country, on proper structure and control of power, absence of arbitrariness in the government.

Volume 9 Issue 1 2020 34 http://infokara.com/ INFOKARA RESEARCH ISSN NO: 1021-9056

Government intervention in many daily activities of the citizens is on the increase creating a possibility of arbitrariness in state action, as the bureaucrats are loyal to the political boss rather than the constitution and the people. Therefore the rule of law is useful as counter to their situation, because the basic emphasis of rule of law is on exclusion of arbitrariness, lawlessness and unreasonableness on the part of the government. Therefore, rule of law has been held to be a basic feature of the constitution.

Rule of law does not mean the rule according to statutory law pure and simple, because such a law may it be harsh, inequitable, discriminating or unjust. Rule of law connotes some higher kind of law which is just reasonable and non discriminatory. Rule of law today envisions not rule of men or arbitrary power but controlled power, constitutional values, such as constitutionalism, absence of arbitrary power in the government, liberty of the people, a free judiciary etc., are incorporated in the concept of rule of law.It is noticed in the above discussion that supremacy of law is the aim, rule of law is the best tool to achieve this aim.

CONCLUSION

The Indian courts also are making efforts to link rule of law with human rights of the people as one of the ingredients of the rule of law is the freedom of the people. The court is developing a strategy by which it can force the government not only submit, to law but also create conditions where people can develop capacities to enjoy their rights proper and meaningful may.Disregard and disrespect to law by the legislators and bureaucrats and the public has somewhat become the norm in certain parts of the country. These incidents are not just cause for concern, but also reflections of the country’s condition. Because of this tendency and attitude of the bureaucrats and legislators, the rule of law in the Indian society has not achieved the intended results, is that the deeply entrenched values of constitutionalism or abiding by the constitution of India have not taken roots in the society.

The legislative bodies in India are composed of criminal of rape murder and corruption charges, be never protector of fundamental rights as the dictum goes, the lost resort of scoundrels is the politics. Therefore the politics should be cleaned and certain educational qualifications should be imposed on politicians to become the legislators and some requisite andappropriate electoral reforms should be implemented so that those elements in politics can be avoided.“It is the responsibility of the public administration for effective implementation of rule of law on constitutional commands which effectuate fairly the objective standards laid down by law”1.“Every government servant holding public power is as a trustee of the society and accountable for due effect national goals”2.

It clearly shows that every servant in bureaucracy, should owe allegiance to the people and the constitution. Thus, the Hon’ble supreme court, in number of cases through its decision established judicial authority and developed the principle of judicial review which cannot be amended, curtailed or removed.

Therefore, it is quite evident that the constitution of India possess the concept of rule of law in its various provisions even though the term rule of law is not employed anywhere in the constitution. The various constitutional provisions and several number of judgment passed, indicates undoubtly that the concept of rule of law contemplated in Indian constitution and the rule of law remains integral part of Indian constitution.

The research would suggest, in the concluding part, the definition of the rule of law is comprised of the following from common principles, to be observed.

Volume 9 Issue 1 2020 35 http://infokara.com/ INFOKARA RESEARCH ISSN NO: 1021-9056

 Accountability:Entire governmental systemis accountable under the law, to the people.

 Just laws:The laws are clear, published, stable, just and universal are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.

 Open Government:The processes by which the laws are enacted, administered, and enforced are accessible, fair and efficient.

 Accessible and impartial Dispute Resolution:Justice is delivered timely by competent, ethical and independent representatives and neutrals who are accessible have adequate resources and reflect the makeup of the communities they serve.

Therefore common principles constitute a working definition of the rule of law. These principles are to be applied followed and observed strictly for the purpose of the rule of law, to prevail in the government.

REFERENCE

1. Prof Dr.K.L BHATIA, Cases and materials on constitutional law of India 2. Jain,M,P. Indian Constitutional Law 3. Pandey J .N The Constitutional Law of India 4. Shukla.V.N The Constitution of India 5. State of Punjab-V-G.S.Gill [1997] 6 SCC 129. 6. Supdt,Engineer, Public health U.T, Chandigarh V – Kuldeep Singh [1997] 9 SCC 199. 7. Richard H Falton,Jr,The rule of Law as a Concept for Constitutional discourse, 97 Columbia law review I ,[1997]

Volume 9 Issue 1 2020 36 http://infokara.com/