Constitutional Provisions Embodying The Rule Of Law

By | December 13, 2019
Introduction to Administrative Law

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Constitutional Provisions Embodying The Rule Of Law | Overview

This article talks about the Constitutional provisions embodying the Rule of law in which it talks of the idea of Rule of law and its application and utilisation in the various Constitutions. It also talks about the few provisions in place for the proper implementation of the principles of the Rule of law in a gist.

Introduction

The Rule of Law in its underlying sense means the law above the man. Albert Venn Dicey who was the main proponent of the phrase ‘Rule of law’ gave its 3 basic principles that were: i. The supremacy of the law and the absence of arbitrary power ii. Equality before the law and iii. The constitution is the result of the ordinary law of the land[1].

To add onto these principles and give a more detailed version, Tom Bingham laid down 8 principles that included that the law must be intelligible, clear and accessible. That the discretion given to authorities must be carefully practised without its abuse.

The fundamental rights of individuals and their right to a fair trial must be given. And finally that the rule of law domestically must also comply with international laws and norms[2].

To sum, all of the ideas up the four main principles that result in the relevant times in regard to the universal rule of law application are:

  1. Accountability– where the government and private authorities are accountable under the law,
  2. Just laws – where the laws are clear, publicly known, applied equally, and protect the fundamental rights, life, liberty and property,
  3. Open government – the processes of enactment, administration and enforcement of laws is accessible, fair and efficient, and
  4. Accessible and Impartial dispute resolution – where justice is delivered timely and effectively by alternate methods of resolution where if they do not work then access to ordinary courts.

The Constitution

Many Constitutional theorists answer this by saying it’s the source of the Rule of Law and at the same time a Rule of law in itself. The thinkers contrary to this call it a socio-cultural norm or fact, which is binding until it is accepted widely. The third set of theorists differs yet again, treating it instead as the intentional production of a several or collective political will, binding because of its intentionality.[3]

Aristotle holds both that the rule of law, and especially, as we will see, the constitution, moderates the rule of men, and also that the rule of men moderates the rule of law, including the constitution. He states that laws are ought to be made with the constitution in mind and view.[4]

Constitution and Rule of Law

Constitutions protect the rule of law in multifarious ways, to state a few;

  1. Because they are usually written and specific (except in cases like the United Kingdom where the governing laws are through cases, Bills, Statutes and Acts). This makes them easily accessible and easier to conform to by citizens and authorities due to their clarity and precision.
  2. Ideally, the people help create the Constitution and it is based on their needs and interests, thus the people define exactly what is supposed to be. This will give the citizens a sense of responsibility to follow as the mechanisms will be in place for them, unless in a situation where these laws were imposed upon them without their inputs.
  3. A good constitution divides the power amongst different offices so that the power does not concentrate on one person or body, thus one person cannot breach the constitution. This maintains a system of checks and balances thus a good constitution defines and adopts the rule of law along with providing a structure for its protection.
  4. A good constitution is hard to change (Constitutional amendments are possible but are a lengthy and time-consuming process) and the government is not allowed to change the constitution by itself.

To begin with, it is of utmost importance to talk about the first written document containing the rules of conduct that were based on the rule of law. This was the Magna Carta in the year 1215. This was a treaty between the tyrannical King John and the Barons who were the aristocratic elite.

Even though being the oldest document that enshrined the rule of law, there are many components of it that still hold relevance, for instance; Under chapter 12, the king was not supposed to levy taxes without the common consent of the kingdom.

Under chapter 39 he was not allowed to arrest people or seize their property without having a judgment by the law of the land. Under chapter 40, there were strict provisions on the denial, delay or the selling of justice. The charter upheld the supremacy of law and the monarch beneath it.

The Magna Carta has contributed to the ideas in the Constitution of the United States, the Declaration of Human Rights and other important discourses of rights and liberties of people. Thus it has indeed become one of the most famous documents of constitutional history. What had started as a peace settlement became the elemental source of democratic constitutional legitimacy.[5]

The rule of law is followed universally, but the countries have modified and adjusted the ideal suitably in accordance with their factors and conditions.

In India, the Constitution of India is the sovereign of the State. The Constitution begins with a Preamble that contains the most essential points of Rule of law that are of Justice (social, economic and political), Liberty (of thought, expression, belief, faith and worship), Equality (of status and opportunity) and Fraternity (dignity of individual, unity and integrity of the nation). This embodies in total the crux of the Rule of law ideal.

Part III of the Constitution has the formal declaration of the fundamental rights, which are the prohibitions against the state incorporated for the security of the citizens. The State cannot make or take away laws that violate the rights of citizens and in the case, it does that law is deemed unconstitutional.

The Supreme Courts have been given the power to ensure this through the availability of mechanisms like the Writs of Habeas corpus, Mandamus, Prohibition, Quo Warranto and Certiorari.

The importance of fundamental rights in India is reiterated by the historic judgment delivered by the Honorable Justice Bhagwati in the case of Maneka Gandhi vs. The Union of India[6] where he observed that “these fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a pattern of guarantee on the basic structure of human rights and impose negative obligations on the State not to encroach on individual liberty in its various dimensions”[7]

In respect to Dicey’s second principle of ‘equality before the law’, the Constitutional provisions are given in Articles 14-18 which guarantee equality to every citizen of India. Article 14 states that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”

Article 15 is in regards to discrimination of individuals based on their religion, race, caste, sex or place of birth. Article 16 is the equal opportunity in cases of public employment, Article 17 is the abolition of Untouchability and Article 18 is the abolition of titles.

In other countries: after the Magna Carta in England, the Bill of rights was passed which had all the rights and liberties of England’s citizens. Similarly, France had the Declaration of Rights of Man and Citizen 1789.

Following these examples, the United States too embodied the Bill of Rights in its Constitution which lists the principle civil rights of individuals. “One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote, they depend on the outcome of no elections.”[8]

Existence of common law which is the judge-made law makes the understanding and incorporating of rule of law easier as its main idea is that of law above men. In England,  Parliament plays the leading role through the constitutional principle of the sovereignty of Parliament, and the laws acted by the parliament remain sovereign.

Therefore, the Rule of Law in England actually means that the administrative power is bound strictly by the law and that the judiciary reviews the lawfulness of administrative action. But, in the United States, during the colonial times, there was distrust in the legislature of the state and hence both legislative and administrative power is bound to the rule of law. As a result, both the Constitution as supreme law and the system of judicial review have arisen from this notion of the Rule of Law.

The doctrine of separation of powers in India is divided between three organs of the government. The Executive, The Legislature and the Judiciary. This horizontal distribution of powers keeps a system of checks and balances throughout them and also eliminate the concentration of power on one level.

Similarly, the distribution of vertical powers is between the State and the Central government.  In India, nobody has discretionary power, unless specified by the constitution. The exemption to this is immunity provided to President and Governors under Article 361.

In the United States, there is a horizontal distribution of power where the Executive power is with the President, the Legislative with the Congress consisting of the Senate and the House of Representatives and the Judicial with the courts.

Wheres in the United Kingdom the system is more of a balance or a fusion of power between the Crown(recently the Government) and the Parliament. The UK has an integration of the Executive and the Legislature and no clear demarcation between them.

Article 21 in India’s Constitution is another important one that talks about Right to Life and Personal Liberty. It states that “No person shall be deprived of his life or personal liberty, except according to the procedure established by law”.

The 86th amendment to the constitution brought in a sub-clause to this article Article 21(A) which states the Right to free and compulsory education to all the children of the age 6 to 14.

The most important case in this respect is that of ADM Jabalpur Vs. Shivakant Shukla[9], popularly known as the habeas corpus case. This case was related to the time of emergency wherein the fundamental rights of people ceased to exist.

The decision, in this case, held that Article 21 was the sole repository of the right to life and personal liberty. And after which the 44th amendment was made that stated that enforcement of Article 21 cannot be suspended by Presidential orders or in any case.

Article 22 provides safeguards against the arbitrary arrest and detention and gives the procedural requirements which must be in place in any law enacted by the legislature in accordance with the people’s rights and liberties.

The American constitution too envisages the Right to life and personal liberty through its 5th amendment.

Counter Arguments

  • Initially, a few of the components such as the prerequisite that the law ought to be “reasonably stable”- are vague. People clearly will differ about how vague terms are best comprehended. The protection of individual rights, due process of law, and judicial review are the core of the Rule of Law in America.

The fact that there is controversy about these subjects due to vagueness suggests that in the United States, too, the Rule of Law means many things. Even so, one can find a consensus in England and the United States that the central meaning of the Rule of Law is that govt power should be bound by the law.[10]

  • Second, no concurred standard exists for estimating the general regressions or modifications that occur from the Rule of Law’s various components. Nor there is understanding concerning which sorts of regressions are the essential objects of concern.

The Rule of Law is ideal that can be utilized to assess laws, legal choices, or lawful frameworks. A lawful framework that all in all comport with the Rule of Law may, in any case, incorporate regulations or choices that don’t.

  • Third, the degree to which a legal framework moves toward the Rule of Law cannot be measured. Probably no legal system realises the perfect ideal of the rule of law. In addition, the components of the Rule of Law can at times conflict.

For instance, a vague substantive law will be vague and instead if replaced by a formal procedural law will be more beneficial, but for a court to do so would be breaching the rule of law in some cases.

  • Fourth, and generally significant, it appears to be difficult to indicate the elements of the Rule of Law without reference to “the law.” W. Ivor Jennings, who advocated the general welfare state, attacked the Diceyan Rule of Law, which supported the laissez-faire economic system.’

He concluded that if the Rule of Law “means that the State exercises only the functions of carrying out external relations and maintaining order, it is not true. If it means that the State ought to exercise these functions only, it is a rule of policy for Whigs (if there are any left).” The focus of the Rule of Law seems to have been moving from substance to procedure.[11]

Conclusion

Thus the rule of law is an essential theory for the good functioning of a democratic government regardless that it may be vague and depart from its rigid ideal at times. But this will only help the respective countries for their relevant application and inclusion of it. Rule of law provides a basis for the various constitutions of different countries to in turn follow the rule of law in the best possible way.


Reference

  1. “The Rule of Law” as a Concept in Constitutional Discourse Author(s): Richard H. Fallon, Jr.
  2. The Rule of Law in the United States -A Statement by the committee to cooperate with the international commission of jurists
  3. W. L. (1939). The Law and the Constitution. Second edition. By Dr W. Ivor Jennings
  4. Introduction to the study of the law of the constitution By Dicey, Albert Venn,
  5. Aristotle on Constitutionalism and the Rule of Law by Jill Frank

[1] Introduction to the study of the law of the constitution by Dicey, Albert Venn

[2] Tom Bingham – The Rule Of Law

[3] Frank Michelman, Constitutional Authorship

[4] The Politics by Aristotle

[5] Magna Carta by Sidney Painter

[6] 1978 AIR 597

[7] AIR 1978 SC 597, p.619

[8] West Virginia State board of education vs. Barnet (319 US 624: 87 Led 1928)

[9] AIR 1976 SC 1207

[10] Scheiber, Public Rights and the Rule of Low in Amerian Legal History

[11] SIR W. JENNINGS, THE LAW AND THE CONSTITUTION (1933)


  1. Rule Of Law In A Mixed Economy
  2. Dicey’s Formulation Of Rule of Law
  • Yash Singh says:

    Nicely explained