Rule of Law v/s Rule by Law

This article focuses on bringing clarity to the two very different concepts which look similar at face value.  Sir Ivor Jennings, the famous constitutional historian, characterized the Rule of Law as ‘an unruly horse’.

First, let’s be clear about what the Rule of Law is not.

Rule of Law should not be equated with law and order. The breakdown of law and order is a temporary phenomenon.

Breakdown of the Rule of Law means the collapse of good governance and the breakdown of constitutional machinery in a State.

Now, let’s see what the Rule of Law is.

It may be difficult to define the concept with precision but in essence, it signifies a commitment to certain principles and values. Generally, the rule of law is the principle that no one is above the law and treated equally among citizens.

The Rule of Law symbolizes the quest of civilized democratic societies to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes license.

However high you may be, the law is above you.

For instance, One may be the Prime Minister or the Speaker or the Imam or the Archbishop or a judge or the Sankaracharya or whoever, all are equally subject to the law. That imparts the element of non-discrimination in the concept of the Rule of Law.

What are the principles of the Rule of Law?

It was A.V. Dicey, the English Professor and Constitutional expert, who developed this concept. He defined 3 principles that govern the rule of law.

  1. Supremacy of Law
    No man shall be punished or made to suffer in body or goods except for the violation of the law. Such a violation must be established in an ordinary court of the land and in an ordinary legal manner.
  2. Equality before Law
    No man is above the law and everyone, whatever his condition or rank is, is subject to the ordinary laws of the land. <It means a person can sue or be sued in a court of law>
  3. Predominance of Legal Spirit
    The result of the ordinary law of the land is Constitution. It indicates that the general principles of the constitution are the result of judicial decisions of the courts in England. <However, this principle does not apply in the case of a written constitution. It stands modified in India, where it reads that the constitution is the supreme law of the land & all other laws in order to be legally valid shall conform to the constitution>

What is the importance of Rule of Law?

Rule of Law is essential for the protection of human rights.

This concept changed the mode of administration from “King was Law” to “Law is King”. It is quite essential for the healthy functioning of democracy.

In its path-breaking judgment in Keshavanand Bharti’s case, our Supreme Court ruled that the Rule of Law is part of the Basic Structure of the Constitution.

The Constitution in order to preserve the rule of law, has conferred the writ jurisdiction under Art. 32 and Art. 226 on Supreme Court and High Court respectively.

How Rule of Law is different from Rule of Law?

It is important not to confuse Rule of Law with rule by law.

The existence of a law is necessary but that is not sufficient. The law must have a certain core component that guarantees the basic human rights and the human dignity of every person.

Rule by law can become an instrument of oppression and it can give legitimacy to the enactment of laws that may grossly violate basic human rights.

Let’s see with examples, how rule by law can be misused

Nazi Germany put Jews in concentration camps and thereafter sent them to the gas chambers. The justification offered was that there was a law that empowered such acts to be done. But that was rule by law, not the Rule of Law.

During the apartheid regime in South Africa, repressive and racially discriminatory laws against the black majority were sought to be justified on the basis of enacted laws.

Let’s see the relevance of the Rule of Law in India

In India, this concept is implicitly mentioned in the fundamental rights of our constitution. The equality before law (Article 14) includes Rule of Law in itself.

Indian Constitution grants some exceptions to the Rule of Law.

What are the exceptions to the Rule of Law in India?

  1. The President/Governor is not answerable to court of law in discharge of his executive functions.
  2. No criminal proceedings whatsoever can be instituted against the President or Governor of the state, while he is in office.
  3. No civil proceedings in which relief is claimed can be filed against President or Governor except after the expiration of a 2-month notice that is served on him.

Under International laws, the visiting heads of state, heads of govt, ministers, officials, and foreign diplomats who are posted in the country are not subjected to the jurisdiction of local courts in the discharge of their official functions.

What are the concerns regarding the Rule of Law in India?

Legal experts have raised their concerns regarding the implementation of the Rule of Law in India. A free democratic society like India cannot have recourse to measures that violate the very essence of the rule of law.

For instance, a law that permits the killing of suspected terrorists or enables indefinite detention without prior hearing at the absolute discretion of the executive is destructive of the rule of law. Fake encounters have no place in a govt professedly based on the rule of law.

Therefore, we should strive to instill the rule of law temperament and culture at home and in educational institutions. The aim should be that rule of law becomes the secular religion of all nations based on tolerance and mutual respect.

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By B2B

Revisiting the Basics

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