RULE OF LAW

Concept and connotations

INTRODUCTION
The concept of the rule of law is an animation of
natural law and remains as a historic ideal which
makes a powerful appeal even today to be ruled by
law not by a powerful man.
“Rule of Law” is to be understood
neither as a “rule” nor a “law”. It is generally
understood as a doctrine of “state political
morality” which concentrates on the rule of law in
securing contd……..
CONTD…..
a “correct balance” between “rights” and “powers”,
between individuals, and between individuals and
the State in any free and civil society. This balance
may be drawn by “law” based on freedom, justice,
equality, and accountability. Therefore, it infuses
law with moral qualities as opined by Alex Carrol
(Constitution and Administrative Law 2nd Edn.,
2002).
RULE OF LAW DERIVED FROM…
The term “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 . In this sense the
concept of la principe de legalite was opposed to
arbitrary powers.
DIFFICULTY IN GIVING EXACT DEFINITION
The rule of law is a viable and dynamic concept
and, like many other such concepts, is not capable
of any exact definition. This, however, does not
mean that there is no agreement on the basic
values which it represents. The term rule of law is
used in contradistinction to “rule of man” and “rule
according to law”.
DIFFERENT NOMENCLATURES FOR RULE
OF LAW IN JURISPRUDENCE

In Jurisprudence, romans called it “jus naturale”;

Mediaevalists called it the “Law of God”; Hobbes,
Locke and Rousseau called it “Social Contract” or
“natural law”; and the modern man calls it the
“rule of law”.
THE CONCEPT OF RULE OF LAW IN THE
LIGHT OF SOME DECIDED CASES

The basic Concept of the Rule of Law is not a well-

defined legal concept. The courts generally would
not invalidate any positive law on the ground that
it violates the contents of the rule of law. However,
in ADM Jabalpur v. Shivakant Shukla, (1976) 2
SCC 521 (Popularly known as the Habeas Corpus)
the majority opinion was against the petitioner’s
demand but the existence of rule of law was
recognised.
The narrow issue before the S.C. was
whether there was any “rule of law” in India apart
from and irrespective of Article 21 of the
Constitution.
CONTD….
Despite the unfortunate order to the effect that the
doors of the court during an emergency are
completely shut for the detenus, it is gratifying to
note that the concept of the rule of law can be used
as a legal concept.
KESAVANANDA BHARATI V. STATE OF
KERALA (1973) 4 SCC 225
In the opinion of some of the judges constituting
the majority in the Kesavananda Bharati case, the
rule of law was considered as an “aspect of the
doctrine of basic structure of the Constitution,
which even the plenary power of Parliament cannot
reach to amend.
INDIRA NEHRU GANDHI V.RAJ NARAIN
(AIR 1975 SC 2299)
Through this case Supreme Court invalidated
clause (4) of Article 329-A inserted in the
Constitution by the Constitution 39th Amendment
Act, 1975 to immunise the election dispute to the
office of the Prime Minister from any kind of
judicial review.
Khanna & Chandrachud JJ held that Article
329-A violated the concept of basic structure. Other
Justices held that Art. 329-A clause (4) offends the
concept of rule of law. Ray CJ held that since the
validation of the Prime Minister’s election was not
by applying any law, therefore it offended the rule
of law.
CONCLUSION REGARDING INDIAN
POSITION

Our Constitution envisages a rule of law and not a

rule of men. It recognises that, howsoever high one
may be, he is under the law and the Constitution.
All the constitutional functionaries must, therefore,
function within the constitutional limits. – as held
in Pancham Chand v. State of H.P. (2008) 7SCC
117
In a system governed by rule
of law, there is nothing like absolute or unbridled
power exercisable at the whims and fancies of the
repository of power. Contd……
CONTD…..
There is nothing like a power without any limits or
constraints. That is so even when a court or other
authority may be vested with wide discretionary
power, for such discretion has to be exercised only
along well-recognised and sound juristic principles
with a view to promoting fairness, inducing
transparency and aiding equity. – as held in Maya
Devi v. Raj Kumari Batra (2010) 9 SCC486
Thus the concept of Rule of Law in India is
duly recognized by the Constitution and is firmly
established by judicial pronouncements.