Rule of Law vs Rule by Law

Note4Students

From UPSC perspective, the following things are important :

Prelims level : What is rule of law?

Mains level : Paper 2- Rule of law and role of judiciary

What makes the Rule of Law different from the Rule by Law? It is the idea of justice and equity that separates the two. The article explains the principles that emerge as the basis of the Rule of law and the role of the judiciary in ensuring their constitutionality.

Understanding law

  • Law, in its most general sense, is a tool of social control that is backed by the sovereign.
  • However, such a definition of law can be used not only to render justice, it can also be used to justify oppression.
  • Therefore it is argued that a law cannot really be classified as a “law” unless it imbibes within itself the ideals of justice and equity.
  • So, any law backed by a sovereign must be tempered by certain ideals or tenets of justice.
  • Only a state that is governed by such law, can be said to have the Rule of Law.
  • The British colonial power used the law as a tool of political repression, enforcing it unequally on the parties, with a different set of rules for the British and for the Indians.
  •  It was an enterprise famous for “Rule by Law”, rather than “Rule of Law.

Four principles of rule of law

  • Clarity and accessibility: Laws must be clear and accessible, the people at least ought to know what the laws are.
  • Another implication of this principle is that they should be worded in simple, unambiguous language.
  • Equality: An important aspect of equality before law is having equal access to justice.
  • This guarantee of equal justice will be rendered meaningless if the vulnerable sections are unable to enjoy their rights because of their poverty or illiteracy or any other kind of weakness.
  • Another aspect is the issue of “gender equality”.
  • Participation of people: The third principle, the “right to participate in the creation and refinement of laws”.
  • The very essence of a democracy is that its citizenry has a role to play, directly or indirectly, in the laws that govern them.
  • In India, it is done through elections.
  • The idea that people are the ultimate sovereign is also to be found in notions of human dignity and autonomy
  • Strong independent judiciary: The fourth principle stemsp from the idea that the judiciary is the “guardian” of the Constitution.
  • The judiciary is the primary organ which is tasked with ensuring that the laws that are enacted are in line with the Constitution.

Independent judiciary and role of media

  • The judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the Rule of Law would become illusory.
  • At the same time, judges should not be swayed by the emotional pitch of public opinion either, which is getting amplified through social media platforms.
  • Judges have to be mindful of the fact that the noise thus amplified is not necessarily reflective of what is right and what the majority believes in.
  • Therefore, media trials cannot be a guiding factor in deciding cases.
  • It is, therefore, extremely vital to function independently and withstand all external aids and pressures.
  • While there is a lot of discussion about the pressure from the executive, it is also imperative to start a discourse as to how social media trends can affect the institutions.

Conclusion

The importance of the judiciary shouldn’t blind us to the fact that the responsibility of safeguarding constitutionalism lies not just with the courts. All the three organs of the state, i.e., the executive, legislature and the judiciary, are equal repositories of constitutional trust.

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Sharmashiva rajeshsharm
Sharmashiva rajeshsharm
3 months ago

nice