Rule of law is not a recent concept. It is believed that the theory was first proposed by Aristotle in 350 BC. In India, the concept can be traced to the Upanishads which state that the law is the king of the kings and that there is nothing higher than law. Even Chanakya believed that the kings should be governed by law.
Joseph Raz proposed his theory of rule of law through his book. In his work, Raz has enumerated the following basic principles that emerge from the study of rule of law. The principles are:
- All laws should be prospective, open, and clear
A law cannot have retrospective action. Especially in criminal law, one cannot be guided by a retroactive law that did not exist at the time of action. In India, there is a duty upon the state to notify the public of any enacted legislation. Similarly, every person in India needs to have knowledge about the laws of the land. (ignorantia juris non excusat)
- Laws should be relatively stable
The laws of a nation mirror the position of its people. Thus, laws are dynamic in nature. The stability of a law is directly proportional to the ease in the procedure of its amendment. In India, amending a law is not as simple as Britain nor as complex as the United States. Article 368 of the Indian constitution grants power to the Parliament of the country to amend, add or repeal laws hence catering to the changing needs of the public.
- The making of particular laws should be guided by open, stable, clear, and general rules.
There must be at least some general rules or guidelines that are catered to while drafting laws. It is important because it reduces the scope of arbitrary state action. In India, the preamble can be said as the foundation stone of all legislations. Promulgated laws must be in accordance with the values mentioned in the preamble. In the case of the Code of Civil Procedure; whenever there is a conflict between the code and a special law; the latter would prevail.
- The independence of the judiciary must be guaranteed.
The concept of judicial independence is much more complicated than it may seem. In simple words, judicial independence is to rule and fix responsibility in legal matters based on facts and law. The independence of the judiciary is a salient feature of the Indian Constitution. Article 50 of the Constitution deals with the separation of executive from the Judiciary which is a Directive Principle of State Policy.
- The principles of natural justice must be observed.
Rules of natural justice are not in a codified form. These principles are embedded in the conscience of human beings. Thus, natural justice also implies fairness, equity, and equality. In India, principles of natural justice are embedded in procedural law. Conducting a fair trial is in compliance with the principles of natural justice.
- The courts should have review powers over the implementation of the other principles.
Judicial review is the power of the courts to read and review the Constitution and declare any order or legislation void if it goes against the Constitution of India. Judicial review supervises government action and protects the Constitution against undue encroachment by the government. In India, recent examples of judicial review include decriminalization of same-sex activities in the case of Navtej Singh Johar v. Union of India.
- The courts should be easily accessible.
Everyone should be able to access the judicial courts as and when necessary. Delays and costs effectively turn the best of laws into the most ineffective letters. In India, the right to access justice and the right to a speedy trial are both fundamental rights under Articles 14 and 21 of the Constitution.
- The discretion of the crime-preventing agencies should not be allowed to pervert the law.
Apart from judicial activism, the role of agencies such as police and prosecuting agencies might also have a similar effect in perverting the law. In India, the police are bound by law to register the case by means of a First Information Report under Section 154 of the Code of Criminal Procedure.
In India, judicial decisions have played a vital role in the development of Rule of Law. Rule of Law is considered as a part of the basic structure of the Constitution and cannot be abrogated even by the Parliament.
In A.K. Kraipak v. Union of India, the Apex Court held that India being a welfare state is regulated and controlled by the Rule of Law. The apex court in continuance with the rule of law allowed women of menstruating age to enter the premises of Sabarimala Temple. In Maneka Gandhi v. Union of India, the court ensured that arbitrary actions of the government do not curb the rights of the people. The Supreme Court has described rule of law on multiple occasions including the recent mob lynchings. The court stated that the “law is the mightiest sovereign in a civilized society.”
The Supreme Court broadened the ambit of Article 14 of the Constitution in E.P. Royappa v. State of Tamil Nadu. The court subsequently held that Rule of Law is the basic feature of the Constitution. Thus, rule of law cannot be discarded or abrogated by way of Parliamentary amendments.
It can undeniably be said that the Rule of Law in India is a very dynamic and developing concept. The developments are due to legislations as well as numerous judicial pronouncements. From the times of Mahabharata to the modern era, the need for Rule of Law has seen various turbulent times for the betterment of the public. The country has adapted and adopted various principles of Prof. Joseph Raz to suit its own purposes for forming a mixture that is unique according to its requirements.