Rule of Law vs Rule by Law

GS 2 –  Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions and Basic Structure.

Source : The Indian Express dated 02/07/2021

Context : Currently, the entire world is facing an unprecedented crisis in the form of Covid-19. At this juncture, we necessarily have to pause and ask ourselves as to what extent we have used the Rule of Law to ensure protection to, and, welfare of all of our people.

What is law?
  • Law is a tool of social control that is backed by the sovereign.
  • Renowned scholars have argued that a law cannot really be classified as a “law” unless it imbibes within itself the ideals of justice and equity. An “unjust law” might not have the same moral legitimacy as a “just law”, but it might still command the obedience of some sections of the society to the detriment of others.
What is rule by law?
  • It is based on the Latin term ‘Rex is Lex’ which means ‘King is Law’. In simple words, it is the tool of tyrants and dictators to oppress and subjugate people.
  • It is also known as ‘Rule by Men’. Thus, any law which is laid down by the supreme lawmaking authority of the land is Rule by Law. 

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

What is rule of law?

Rule of Law is derived from the French phrase ‘la Principe de legality’ which means ‘Government based on the principles of law’. It is based on the Latin term ‘Lex is Rex’ which means ‘Law is King’. In simple terms, the King or Head of the State should be governed by the word of law. 

Principles of rule of law according to A.V.DICEY
  1. Supremacy of Law
    No man shall be punished or made to suffer in body or goods except for the violation of law. Such a violation must be established in an ordinary court of land and in 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 decision of the courts in England. <However, this principle does not apply in case of written constitution. It stands modified in India, where it reads that the constitution is the supreme law of land & all other laws in order to be legally valid shall conform to constitution>
Rule of Law and Indian Constitution:
  • The Preamble to the Indian Constitution mentions Justice, Liberty, and Equality. As per Article 13 (1) of the Indian Constitution, the constitution shall be the supreme law of the land & all other laws in order to be legally valid shall conform to the constitution. 
  • As per Article 14 of the Indian Constitution, the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India and discrimination on grounds of religion, race, caste, sex or place of birth is prohibited.
  • As per Article 21 of the Indian Constitution, no person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of 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 President or Governor of state, while he is in office.
  3. No civil proceedings in which relief is claimed can be filed against President or Governor except after an expiry of a 2 month notice that is served on him.
  4. Under International laws, the visiting heads of state, heads of government, ministers, officials and foreign diplomats who are posted in country are not subjected to jurisdiction of local courts in discharge of their official functions.(Vienna Convention).

From within the perspective of legal positivism, many conceptions of Rule of Law have emerged. According to CJI N V Ramana, the four principles of rule of law are :

  1. 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.
  2. The idea of “equality before the law”
    • 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.
    • The issue of “gender equality
      • The application of the principles of Rule of Law in respect of vulnerable sections has to necessarily be more inclusive of their social conditions that hinder their progress.
      • Eg: The legal empowerment of women not only enables them to advocate for their rights and needs in society, but it also increases their visibility in the legal reform process and allows their participation in it.
  3.  The “right to participate in the creation and refinement of laws”. 
    • In India, it is done through elections where the people get to exercise their universal adult franchise to elect the people who form part of Parliament which enacts laws…
    • In spite of large-scale inequalities, illiteracy, backwardness, poverty and alleged ignorance, the people of independent India have proved themselves to be intelligent and up to the task
      • In the 17 national general elections held so far, the people have changed the ruling party or combination of parties eight times.
  4. The presence of a “strong independent judiciary”.
    • The judiciary is the primary organ which is tasked with ensuring that the laws that are enacted are in line with the Constitution.
    • But the importance of the judiciary shouldn’t blind us to the fact that the responsibility of safeguarding constitutionalism lies not just with the courts.
      • But the importance of the judiciary shouldn’t blind us to the fact that the responsibility of safeguarding constitutionalism lies not just with the courts.
    • This limitation calls for other organs to assume responsibilities of upholding constitutional values and ensuring justice in the first place, with the judiciary acting as an important check.

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”, as it aimed at controlling the Indian subjects. Our struggle for independence thus marked our journey towards the establishment of a state defined by the Rule of Law. That is what “We the people” gave to ourselves in the form of the Constitution.

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