Rule Of Law



Rule of law

The concept of Rule of Law is that the state is governed, not by the ruler or the nominated representatives of the people but by the law. A county that enshrines the rule of law 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 supreme authority of the state. The monarch or the representatives of the republic are governed by the laws derived out of the Grundnorm and their powers are limited by the law. The King is not the law but the law is king.

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

The formal origin 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. Dicey and his theory on the rule of law remains the most popular. Dicey’s theory has three pillars based on the concept that “a government should be based on principles of law and not of men”, these are:


Supremacy of Law

This has always been the basic 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 give reasons that can be justified under the law while exercising their powers to make and administer the law.

 

 


Equality before the Law

While the principle of supremacy of law sets in place cheques and balances over the government on making and administering the law, the principle of equality before the law seeks to ensure that the law is administered and enforced in a just manner. It is not enough to have a fair law but the law must be applied in a just manner as well. The law cannot discriminate between people in matters of sex, religion, race etc. This concept of the rule of law has been codified in the Indian Constitution under Article 14 and the Universal Declaration of Human Rights under the Preamble and Article 7.


Pre-dominance of legal spirit

In including this as a requirement for the rule of law, Dicey’s belief was that it was insufficient to simply include the above two principles in the constitution of the country or in its other laws for the state to be one in which the principles of rule of law are being followed. There must be an enforcing authority and Dicey believed that this authority could be found in the courts. The courts are the enforcers of the rule of law and they must be both impartial and free from all external influences. Thus the freedom of the judicial becomes an important pillar to the rule of law.

Rule of law in india

Britishers imposed so called ‘rule of law concept’ in its colonies not with an intention to impart justice but to ruin colonies by passing oppressive laws, this is the reason why in any colonies of British, ‘rule of law’ was not flourished as expected by native people, this was not because there were totally stranger to rule of law concept, but that principle was manipulated, it is used as instrument of oppression. History revels ‘Rule of Law’ system provides enough room for its misuse. Our constitutional framers without understanding this fact in their utter ignorance and relaying on western experiments accepted rule of law, and parliamentary system of England. Instead of imitating western legal system, if they transcended our own legal system which was in existence in medieval age that is before 12 centaury they would have gave a wonderful Constitution to this country based on its own experiences. Britishers thought that one of the way to dominate Indian civilization is to get deconstruct native education system; Lord Macaulay said that British policy ought to form “a class of persons, Indians in blood and colour, but English in taste, in opinions, in morals, and in intellect” Our constitutional framers were failed access to our own fast experiences, tough Mahatma Gandhi always aware of this fact and who uses to give frequent warnings, and he desired to establish that ancient legal system.

His efforts are also proved insufficient to overcome western ideology. India’s Independence resulted from the struggle led by Mahatma Gandhi, but India’s Freedom, is a product of the Gospel of Jesus Christ. Dr. B.R. Ambedkar, Neharu, and Rajendra Prasad were of the opinion that “However good a constitution may be, it is sure to turn out bad, because those who are called to work it happen to be a bad lot.” Yet, the tragedy is that even these leaders do not know how to make bad people good, that is, how to save us from our sinfulness. However, not much time is left with us to think our fast mistakes which happened largely by ignorance and our inability to access our fast experiences.

Constitution of India is framed on the basis of popular notion of Rule of Law, which recognized two fundamental components of Rule of Law,

  • Supremacy of Law and
  • Equality before law.

However, realizing true objectives of Rule of Law remained a nightmare. Poor Leadership, Corruption, etc daily routines and so called leaders of nation, for their self interest jeopardized nations interest. I can site few such examples here, (i) It was on March 30th, 1997 that Mr. Sitaram Kesri (Leader of Congress party (party Supreme) and United Front Coalition Government) handed a letter to the president of India that pulled down a government which resulted into fall of Mr. Devegowda lead United Front Coalition Government. Precise reasons for withdrawal were that, Under Gowda’s government, the Central Bureau of Investigation (CBI) and the Income Tax authorities were investigating about one hundred Congressmen for crimes committed during their years in power. As Rajesh Pilot, a Congress party leader and an aspirant for its presidency, put it, some Congressmen were in jail and many others were on bail; they could not allow the United Front to continue to rule on the strength of their support, and at the same time investigate their crimes. And Gowda’s government. doing fairly well and had tabled most popular Budget before parliament this created fear that in next election Devegowda will be able to get sufficient majority by his own party. Because of these reason government was pulled down.

Rule of Law in India came under Great challenge in 1975 emergency period; thousand of political leaders across the country have been under detention without stating any reasons. Several repressive laws enacted thereby a worst kind of Preventive detention law are applied, this experience unique to India even during British Rule there was no law to provide complete authority to police official to detain person preventively. Freedom of press and expression were put under pre-censorship, some of the foreign dailies and periodicals were banned and lines were revoked. An attempt of substitution of Original constitution is made by introducing 42nd Amendment Act to the Constitution in 1976. Misuse use Art 356, laid to weakling of federal structure of the country.

Adult Franchise

Adult Franchise is right to vote irrespective of religion, race, caste, creed, sex. It was a nascent step to empower the democratic values and the result is Election or Right to choose our representatives.

The concept of Adult Franchise or Universal suffrage came into existence through the French First Republic, though limited in its nature, right to vote was extended to male members. Ergo, with the passage of time and establishment of modern states on the principle of Democracy consolidate the existence of Adult Franchise.

In India, the concept is enshrined in Article 326 in The Constitution Of India 1949, the voting age in out country is 18 years or above, earlier it used to be 21 years but through Sixty-first Amendment of the Constitution of India it was reduced with the intention that,  The present-day youth are literate and enlightened and the lowering of the voting age would provide to the unrepresented youth of the country an opportunity to give vent to their feelings and help them become a part of the political process. The present-day youth are very much politically conscious. It is, therefore, proposed to reduce the voting age.

 

 


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