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PRESENTATION ON RULE OF LAW

NAME RITIKA RITU


REGD. NO. 1141844001
YEAR 2011-2016

RULE OF LAW
In questions of power, then, let no more be said of
confidence in man but bind him down from his own
mischief by the chains of the Constitution

Definition
Rule of law is the supreme manifestation of human

civilization and culture is a new lingua franca of global


moral thought. It is an eternal value of constitutionalism
and inherent attribute of democracy and good governance.
The term Rule of Law is derived from the French phrase

la principle de legalite (the principle of legality) which


refers to a government based on principles of law and not
of men.

Rule of law is a legal principle that law should govern a

nation, and not arbitrary decisions by individual


government officials.
In simple words men are ruled by law and not by men.
It primarily refers to the influence and authority of law

within society, particularly as a constrain upon behavior,


including behavior of government officials

HISTORY OF RULE OF LAW


A principle that itself is quite old and long predates the United

States, the rule of law is the general concept that government as


well as the governed are subject to the law and that all are to be
equally protected by the law. Its roots can be found in classical
antiquity.
In UK, Sir Edward coke is said to be the originator of this
concept, when he said that the king must be under the god and law
and thus vindicated the supremacy of law over the pretensions of
the executives.
In India, the concept of Rule of law can be traced to Upanishad. It
provides that the law is the king of kings. It is more powerful and
rigid than the kings.

DICEYS CONCEPT
In his book Law & the Constitution

published in the year 1885, Dicey


attributed 3 meaning of Rule of Law:
1. Supremacy of law
2. Equality before the law
3. Predominance of legal spirit

Criticism to Diceys Rule of law


Diceys first principle (supremacy of regular law as

opposed to the influence of arbitrary power) has been


seriously challenged, due to the proposition that the
rule of law excludes even wide discretionary authority
by the government.
Diceys second meaning stresses the equal subjection
of all persons to the ordinary law. What a
constitutional guarantee of equality before law may
achieve is to enable legislation to be invalidated
which discriminates between citizens on grounds that
are considered irrelevant, unacceptable or offensive.

Diceys third meaning of the rule of law expressed a

strong preference for the principles of common law


declared by the judges as the basis of the citizens
rights and liberties. First, fundamental liberties at
common law may be eroded by Parliament and thus
acquire a residual character. Secondly, the common
law does not assure the citizens economic and social
well-being. Third, while it remains essential that legal
remedies are effective, there is value in a declaration
of the individuals basic rights and in creating judicial
procedures for protecting those rights

Essentials of Rule of Law


a) ABHORRENCE OF ARBITRARY POWER
b) EQUALITY BEFORE THE LAW
c) A FORMAL, RATIONAL COURT SYSTEM
d) JUDICIAL INDEPENDENCE AND SEPARATION OF

POWERS

Factors of Rule of Law


Rule of Law is a system where the following

principles are upheld:


1. Constraints on Government Powers
2. Absence of corruption
3. Order and Security
4. Fundamental Rights
5. Open Government
6. Regulatory Enforcement
7. Civil and Criminal Justice
8. Informal Justice

Comparing Different Countries


In USA, rights are expressly mentioned and hence Rule of Law

exists.
Following the philosophical and political thoughts of John Locke and

Thomas Jefferson, the law of the United States incorporates the most
radical principles of individualism and liberty ever known to man.
These principles,

proclaimed in the American Declaration of


Independence, were inserted in the Preamble of the U.S. Constitution
and provide that people have certain fundamental and inherent rights
such as life, liberty, property ownership, and the pursuit of happiness.

These rights have been endowed by nature and God, and not by

government.

In UK, Judge made law, evolved and the principles of

rule of law are recognised by the Courts.


The root of development of Rule of Law is traced
back in the Great Charter ie Magna Carta.
Winston Churchill concludes that Now for the first
time the king himself is bound by the law.
There is a law which is above the king and which
even he must not break. This reaffirmation of a
supreme law and its expression in a general charter is
a great work of Magna Carta; and this alone justifies
the respect in which men have held it.

In India the term Rule of Law is not used in the Indian

Constitution anywhere. The term is though frequently


used by the Indian Courts in their judgments.
The fundamental rights embodied in the Indian
constitution in terms virtually identical term to the
universal declaration of human rights act as guarantee
that all Indian citizens can and will lead their lives in
peace as long as they obey the law.
India has a written constitution; a body of laws,
subordinate to the constitution, dealing with various
subjects; rules and regulations, executive instructions
& Conventions. All these may be broadly termed as
law and their operation to subject population is the
Rule of Law.

Proof of existence of Rule of Law in India


Proof:
Separation of powers
Fundamental Rights
Judicial Independence
Judicial review
Equality Guarantee & Protection of Human Rights

JUDICIAL ANALYSIS
In Murray v. Hoboken Land, The U.S. Supreme Court

held in 1855, that in order to determine whether a


process is due process the first step is to examine the
Constitution itself, to see whether this process be in
conflict with any of its provisions
In SolesBee v. Balkcom, it was held that Due process is
violated if a practice of rule offends some principle of
justice so routed in the traditions and conscience of our
people as to be ranked fundamental. 339 U.S. 9, 16
(1950).

In Indira Gandhi v. Raj Narain,


Article 329-A was inserted in the Constitution under

39th Amendment, which provided certain immunities


to the election of office of Prime Minister from
Judicial Review. The Supreme Court declared 329-A
as invalid since it abridges the basic structure of the
Constitution.
In Bachan Singh v Union of India
Bhagwati J. said rule of law excludes arbitrariness

and unreasonableness.

In Kesavananda Bharati v State of Kerala ,


Scope of Rule of Law has been expanded in Judiciary

in this landmark judgment which held that Rule of


Law is a part of basic structure of the Indian
Constitution and therefore it cannot be abrogated or
destroyed even by the Parliament.
In D.S Nakara v. union of India, in this case supreme
court said that Rule 34 of the central services( pension)
rules, 1972 as unconstitutional on the ground that the
classification made by it between pensioners retiring
before a certain date and retiring after that date was
not depend upon the any rational principal it was
arbitrary and the infringement of article of article 14 of
Indian constitution law.

CONCLUSION
With the above analysis of the concept in UK as well as in India it can

be concluded that the Diceys Concept of Rule of Law is idealist in


Nature which is quite impossible to implement in the nation like India.
According to Diceys theory justice must be done through known
principles of law and not by principles of men. He believes that where
there is discretion there is always a room for arbitrariness.
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. Today, we need the rule of law for punishing
deviations and lapses from the code of conduct and standards of
behaviour which the community speaking through its representatives
has prescribed as the law of the land. To curb and control that brute
and to prevent the degeneration of society into a state of tooth and
claw, what is required is the Rule of Law.