The history shows that man has always appealed to something higher than that which is his own creation. In jurisprudence, Romans call it ‘jus naturale’, Hobbes, Lock and Rousseau call it ‘social contract’, or ‘natural law’ and the modern man calls it Rule of Law.
The term Rule of Law of derived from French phase ‘la principe de legalite’ which means the principle of legality. It refers to a government based on principles of law and not of man. Edward Coke is said to be the originator of this concept.
Dicey’s concept of Rule of Law contains three principles:
- Absence of discretionary power in the hands of government officials
- Person should not be punished except for the breach of law and
- The rights must flow from customs and traditions of people.
The system of administrative legislation and adjudication has existed in India from a very long time. The Britishers came to India for trade so the primary object of British administration was to maximise profit. As the Britishers gained control over India the efficiency of administration became the basic necessity to fulfil its basic purpose. The executive at that time had overriding powers in the matters of justice.
The establishment of Supreme Court in Calcutta had inaugurated an era of independent judicial administration but it came to an end with the passage of the Act of Settlement, 1781. After the Battle of Plassy 1757 a centralised administrative system was formed to make laws. Thereafter many regulations were passed to take care of administrative justice system, one among them is Cornwallis Code, 1793. The other one is Section 108 of Regulation Act 1822 which required administrative agencies to record facts, evidence and decision. The court had power to control administrative actions but it payed great respect and attention to the administrative decision. Till the end of British rule the Indian Government was concerned with the more primary duties only. The Indian Constitution was adopted on the policy of welfare state. Various sections in the constitution such as Article 39 require the state to direct its policy towards adequate means of livelihood. Article 47 talks about rising of the level of nutrition and standard of living of its people, article 32 and 226 confers the power to High courts and Supreme Courts to issue writs. Moreover the constitution itself provides for establishment of administrative agencies. Article 315 talks about Public Service Commission in India and article 329 talks about Election Commissions.
The concept of Rule of Law is not well defined legal concept. In the case of A.D.M Jabalpur v. Shivkant Shukla ((1976) 2 SCC 521) an attempt was made to challenge the administrative order during emergency on the ground that it violates the principle of Rule of Law. Though the contention didnot succeed but this case made it clear that Rule of Law can be used as a legal concept. In Kesavananda Bharti v. State of Kerala ((1973) 4 SCC 225) the Rule of Law was considered the basic structure of Indian constitution. In Indira Nehru Gandhi v. Raj Narain(AIR 1975 SC 2299) judges held that Article 329A offends the concept of Rule of Law. The Court in case of Som Raj v. State of Haryana((1990) 2 SCC 653) observed that the absence of arbitrary power is the first postulate of Rule of Law.
The modern concept of Rule of Law is fairly wide. This concept was developed by International Commission of Jurists. This concept implies that the function of government in the society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. During the last few years the Supreme Court of India has developed some fine principles of third world jurisprudence. This could be seen by the extension of the Rule of Law to the poor and the downtrodden, the ignorant and the illiterate who form the bulk of humanity in India. This ruling was provided by the court in response to a letter drawing attention to unjustified and illegal detention of certain prisoners in jail for almost two to three decades in the case of Veena Seth v. State of Bihar ((1982) 2 SCC 583).
The Courts in India have established Rule of Law society. The public administration has effectively implemented rule of law. Today the administrative process has grown so much that we are not governed but administered. The negative side of it is that respect for law degenerates into legalism which from its very rigidity works as an injury to the nation.
Student, 3rd year, National Law Institute University, Bhopal
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]