Rule of Law

1. Rule of Law

2. Constitution of India – Preamble … • WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a [SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC] and to secure to all its citizens: • JUSTICE, social, economic and political; • LIBERTY of thought, expression, belief, faith and worship;

3. … • EQUALITY of status and of opportunity; and to promote among them all; • FRATERNITY assuring the dignity of the individual and the [unity and integrity of the Nation]; • IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

4. Rule of Law – An Introduction • Means supremacy of law or predominance of law. • It is based on the foundation of values. • “Law is the King of Kings,… nothing can be mightier than Law, by whose aid, … even the weak may prevail over the strong”. Vedas

5. … Rule of Law – an Introduction • “Rule of Law is preferable to that of an individual.” Aristotle • Rulers and the ruled are equally subject to Law. • “The Rule of Law stands for the view that decisions should be made by the application of known principles and Laws; in general, such decisions will be predictable and the citizen will know where he is” - Frank Committee Report (U.K. - 1957). • Endorsed by the Supreme Court of India in S.G. Jaisinghanivs. Union of India and others (vide AIR 1967 SC 1427).

6. Foundation of Rule of Law • Based on the respect for the supreme value of human dignity. • Designed to protect the individual against arbitrary exercise of power, wherever it may be found. • Aimed at harmonising the opposing notions of individual liberty and public order, personal freedom and social security.

7. Basic Principles of Rule of Law … • It is the law and not the individual or group of individuals which rules or governs the people. • Law is supreme, above everything and everyone. Nobody is above law. • Equality before Law and equal protection of Law.

8. … Basic Principles of Rule of Law • All actions must be according to Law and not according to whim. • Every person, whatever be rank and condition, is subject to the ordinary law of the nation • Govt. must be conducted within the framework of recognised rules which restrict discretionary powers.

9. … Basic Principles of Rule of Law • Discretionary powers should be exercised within reasonable limits set by law. • No person should be made to suffer except for a distinct breach of law. • Respect for Law. • Absence of arbitrary power.

10. Pre- conditions for Rule of Law … • Representative and Responsible Government. • Government capable of maintaining law and order. • Government capable of creating appropriate social and economic conditions. • Adequate safeguards against executive encroachment and abuse of power.

11. … Pre- conditions for Rule of Law • Certain minimum standards for Law conforming to emerging social standards. • Absence of retroactive penal law. • Fair and Just Procedure. • Speedy Trial in Criminal Cases. • Equal access to Law. • Legal Aid to the Poor.

12. … Pre- conditions for Rule of Law • Sound Legal Profession. • Independent &impartial judiciary • Authority of the Courts to test administrative actions, by the standards of legality.

13. Rule of Law in Judgements • Rule of Law is one of the basic features of the Constitution of India. (Indira Gandhi vs. Raj Narain reported in AIR 1975 SC 2299). • If there is one principle which runs through the entire fabric of the Constitution of India, it is the principle of Rule of Law. (S.P. Gupta vs. Union of India, AIR 1949 SC 149)

14. Discretion • Discretion means the quality of being discreet. • It pre-supposes that there are options/choices/ alternatives and the one, most appropriate and prudent in the given situation, is to be adopted by the administrative authority. • It neither implies nor involves the whim or caprice of the authority.

15. Discretion … • It should be exercised, not according to the sweet will but in accordance with the principles, due regard being had to the facts and circumstances of the case. • It must be confined within clearly defined limits. • It must not be used arbitrarily or oppressively or unreasonably. • An administrator, in exercise of discretion, is to do not what he wants but what he ought to.

16. … Discretion “Discretionary power is necessary to solve particular problems. Discretion is a tool indispensable for individualisation of Justice.” “Individualised Justice means Justice which is appropriate to the case and which is tailored to its needs.”

17. Rule of Law and Judicial Review of Administrative Action … • Judicial Review is the mechanism for controlling administrative actions with a view to bringing them in conformity with the Rule of Law. • Exercise of Discretionary power by an Administrative Authority must satisfy the test of reason, justice and fair play in action. Otherwise, it becomes liable to be struck down as bad and illegal.

18. … Judicial Review • A discretionary power is to be exercised for the purpose for which it has been conferred. Otherwise, the administrative action taken shall not be sustained by the Court in the exercise of its power of judicial review. • Discretion vested in any Administrative Authority cannot be unguided, and unlimited. Government cannot distribute at its sweet will or withhold arbitrarily largess or licence or contract. In fact, the arbitrariness is the sworn enemy of equality which has been enshrined in Article 14 of the Constitution of India.