I by ancient Greek philosophers such as Plato

 

 

 

I – Internal Assessment

Sub.- Administrative
Law

TOPIC- “critical essay
on application of doctrine of rule of law in india”

Submitted to -Dr.
Atmaram Shelke

Submitted by – Anjali
Sahajwani

16010122018

2nd Year. L.L.B.

 

 

 

CONCEPT
OF RULE OF LAW

The
concept of Rule of law is of old origin and is an ancient ideal. It 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 powers
should be servants of the laws

The
phrase ‘Rule of Law’ is derived from the French phrase ‘la principe de
legalite’ (the principle of legality) which refers to a government based on
principles of law and not of men. 

Rule
of law is one of the basic principles of the English Constitution and the
doctrine is accepted in the Constitution of U.S.A and India as well. The entire
basis of Administrative Law is the doctrine of the rule of law.

The
expression ‘rule of law’ is one which, over the years, has been used to convey
a wide variety of ideas and has a number of meanings and corollaries including
their criticisms. In common parlance it is often used simply to describe the
state of affairs in a country where, in the main, the law is observed and order
is kept – i.e., as an expression synonymous with ‘law and order’. To public
lawyers, however, the phrase conveys something a little more precise. For them,
the phrase is inextricably linked with the writings of Dicey.

ORIGIN OF RULE OF LAW
IN INDIA

In
India, the idea of Rule of law can be followed back to the Upanishads.In
present day also, the plan of the Indian Constitution depends on the idea of
lead of law. The designers of the Constitution were well familiar with the
proposes of run of law as propounded by Dicey and as adjusted in its
application to British India. It was in this way, in the wellness of things
that the establishing fathers of the Constitution gave due acknowledgment to
the idea of govern of law.

 

The
regulation of Rule of Law as articulated by Dicey has been embraced and
concisely consolidated in the Indian Constitution. The goals of the
Constitution viz; equity, freedom and correspondence are cherished in the
Preamble itself (which is a piece of the Constitution).

The
Constitution of India has been made the supreme law of the country and
different laws are required to be in conformity with it. Any law which is found
infringing upon any arrangement of the Constitution, especially, the crucial
rights, is pronounced void. The Indian Constitution likewise joins the rule of
equity under the watchful eye of law and equivalent security of laws counted by
Dicey under Article 14 .

The
exceptionally fundamental human ideal to life and individual freedom has
additionally been revered under Article 21. Article 19(1) (an) of the Indian
Constitution ensures the third guideline of the Rule of law (the right to speak
freely and Expression). No individual can be sentenced any offense with the
exception of infringement of a law in drive at the season of the commission of
the demonstration charged as an offense is likewise extremely all around
perceived in the Indian Constitution. The standards of twofold danger and
self-implication additionally discovered its legitimate place in the
Constitution. Articles 14, 19 and 21 are basic to the point that they are
likewise called the brilliant triangle Articles of the Indian Constitution.

The
Constitution likewise guarantees a free a fair Judiciary to settle question and
grievances for infringement of key rights by righteousness of Articles 32 and
226. In Union of India v. President, Madras Bar Association, the Supreme Court
held that “Administer of Law has a few aspects, one of which is that
debate of natives will be chosen by Judges who are autonomous and unbiased; and
that question as to legitimateness of demonstrations of the Government will be
chosen by Judges who are free of the Executive.”

Equity
R.S. Pathak of the Hon’ble Supreme Court has watched that “It must be
recollected that our whole constitutional framework is established on the
administer of law, and in any framework so outlined it is difficult to think
about real power which is subjective in character and goes past the limits of
reason.”

 

According
to Prof. Dicey, rules of law contain three principles or it has three meanings
as stated below:

1.      Supremacy of law.

2.     
Equality
before law.

3.     
Predominance
of legal spirit.

 

RULE
OF LAW IN INDIA

the
idea of Rule of Law penetrates into the Indian Legal System through the
Constitution. Part III of the Constitution of India goes about as a restriction
on the different organs practicing powers. While giving the rights on the
subjects, it forces confinements on the power that can be worked out. Under our
Constitution, we have received the British System of Rule of Law. Nonattendance
of self-assertive power is the main fundamental of Rule of Law where upon our entire
constitutional framework is based.Governance must be by control, and not
subjective, unclear and fanciful.Under our Constitution, the Rule of Law
infests over the whole field of organization and each organ of the state is
managed by Rule of Law. The idea of Rule of Law can’t be maintained in soul and
letter if the instrumentalities of the state are not accused of the obligation
of releasing their capacity in a reasonable and just manner.

JUDICIARY AND RULE OF
LAW

The
Indian Judiciary has assumed an instrumental part in forming Rule of Law in
India. By receiving a positive approach and powerfully deciphering the
constitutional arrangements, the courts have guaranteed that the Rule of Law
and regard for subjects’ rights don’t stay just on paper yet are fused in soul
as well.

In the case of A.D.M. Jabalpur v. Shiv Kant Shukla, KHANNA,
J. observed:

“Rule
of Law is the antithesis of arbitrariness……..Rule of Law is now the accepted
norm of all civilized societies……Everywhere it is identified with the liberty
of the individual. It seeks to maintain a balance between the opposing notions
of individual liberty and public order.”

 

 

In the case of
Bachhan Singh v. State of Punjab it
was held that the Rule of Law has three basic and fundamental assumptions. They
are:-

1)
Law making must be essentially in the hands of a democratically elected
legislature;

2)
Even in the hands of the democratically elected legislature, there should not
be unfettered legislative power; and

3)
There must be independent judiciary to protect the citizens against excesses of
executive and legislative power.

 

In
the case of Maneka Gandhi v. Union of
India

the
Hon’ble Supreme Court; established the Rule of Law that no person can be
deprived of his life and personal liberty except procedure establish by law
under Article 21 of the Constitution. Thus, Article 21 requires the following
conditions to be fulfilled before a person is deprived to his life and liberty:

There
must be a valid law.

·        
The
law must provide procedure.

·        
The
procedure must be just, fair and reasonable.

·        
The
law must satisfy the requirement of Article 14 and 19.

 

THE
DARKER SIDE OF RULE OF LAW

The
instance of ADM Jabalpur Shivakant
Shukla is a standout amongst the most essential situations with regards to
lead of law. For this situation, the inquiry under the steady gaze of the court
was ‘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 22
amid the decree of a crisis. The appropriate response of most of the seat was
in negative for the topic of law. However Justice H.R. Khanna disagreed from
the lion’s share sentiment and watched that “Even without Article 21 in
the Constitution, the state has no energy to deny a man of his life and freedom
without the expert of law. Without such holiness of life and freedom, the
qualification between an untamed society and one represented by laws would stop
to have any significance… “The
larger part judges couldn’t take a firm stand and translated the matchless
quality of law to mean amazingness of the tradition that must be adhered to and
not matchless quality of the constitutional soul which is administer of law.

The
main characteristic of the concept of rule of law is ‘equality’. This itself
has been criticized widely. The government possesses the inherent authority to
act purely on its own volition and without being subjected to any checks or
limitations. Total equality is possible to prevail in general conditions, not
only in India but in any country for that matter. For e.g.: no case can be
filed against the bureaucrats and diplomats in India and the privileges enjoyed
by the members of parliament with respect to legal actions against them.

LEGAL
SYSTEM

A
legal framework is a piece of any society. The society is considerably bigger
than the legal framework. Legal framework exists one next to the other to
political framework, financial framework, social frameworks, religious
frameworks, and so on. These demonstration and entomb act together to keep the
development of the society going on. Actually, at whatever point law is lauded
or censured, it is law in the feeling of framework that is included. Something
else, 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 of
human life. Law holds predominant position among these controls for its down to
earth utility which does not concern law all things considered but rather is
worried about law as framework. Law as a framework produces comes about whether
great or terrible, attractive or less alluring. It is because of these outcomes
that legal framework is complimented and censured both in the meantime and
unexpectedly for a similar outcome.

Legal
framework speaks to linkage of laws and in any country is one part of the
administration or the expert and each structure with a specialist has one or
other legal framework. Cases of structure may incorporate a country, an
industrial facility, a school, a club or something else. Every one of these
structures have some specialist and an expert has law as one and imperative
organ of keeping the expert alive and going on.

 

IMPORTANT
COMPONENTS OF RULE OF LAW REFORM

1.      COURT
REFORMS

·        
The
productivity of the courts is an imperative part in manage of-law changes as
the presence of a legal is a basic part of the govern of law.

·        
To
expand responsibility and straightforwardness, data innovation frameworks might
be introduced to give more noteworthy community. To expand autonomy of the
courts, the legislature can furnish them with subsidizing that will enable them
to make their own particular budgetary and authoritative choices.

·        
Recent
forceful legal activism can likewise be viewed as a piece of the endeavors of
the Constitutional Courts in India to set up rule-of-law society, which
suggests that regardless of how high a man, might be the law is constantly
above him. Court is likewise attempting to distinguish the idea of administer
of law with human privileges of the general population. The Court is creating
procedures by which it can constrain the legislature to submit to the law as
well as to make conditions where individuals can create abilities to practice
their rights legitimately and definitively. Nonetheless, the productivity of
the courts is an imperative part in manage of-law changes as the presence of a
legal is a basic part of the govern of law.

 

2.     
LEGAL RULES

To
expand responsibility and straightforwardness, data innovation frameworks might
be introduced to give more noteworthy community. To expand autonomy of the
courts, the legislature can furnish them with subsidizing that will enable them
to make their own particular budgetary and authoritative choices.

c)Institutional
Encouragement on the Global Level 

Late forceful legal activism can
likewise be viewed as a piece of the endeavors of the Constitutional Courts in
India to set up run of-law society, which suggests that regardless of how high
a man, might be the law is constantly above him. Court is likewise attempting
to distinguish the idea of administer of law with human privileges of the
general population. The Court is creating procedures by which it can constrain
the legislature to submit to the law as well as to make conditions where
individuals can create abilities to practice their rights legitimately and
definitively. However, the separation of powers should be maintained.

 

3.     
LEGAL RULES

 

·        
Another
important rule-of-law reform goal is to build the legal rules. As Fuller
stated, “laws must exist.”

 

4.     
INSTITUTIONAL ENCOURAGEMENT ON
THE GLOBAL LEVEL 

·        
To
support additional country-particular improvement, in the mid-1990s the World
Bank and the International Monetary Fund (IMF) started molding money related
help on the execution of the administer of law in beneficiary nations. These
associations had given guide to help activities in authoritative drafting,
legitimate data, open and lawful instruction, and legal changes, including
elective question determination. By molding reserves on the foundation of the
govern of law, the World Bank and the IMF likewise would like to diminish
debasement, which undermines monetary advancement by driving off speculators and
keeping the free stream of products and capital. Right now, in its Sustainable
Development Goals (SDG), the United Nations (UN) additionally champions the run
of law as a vehicle to realize more feasible natural practices.

 

CONCLUSION

Rule
of law is mostly believed to be a modern concept which is a gift of democracy
however it is something which is fundamental to the very basic idea of good
governance

We
need to focus on the weaknesses and loopholes so that we can remove or plug
them. Having said this, we cannot resist ourselves from adding that it is not
that only the three organs of the State are to be blamed for the dismal state
of rule of law in the society. Other actors like the media, civil society and
even the ordinary citizen cannot run away from their respective
responsibilities. Therefore it is equally important that all the actors of the
society ensure for the maintenance of Rule of Law.

 

 

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