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Rule of Law : Indian Perspective

Rule of Law : Indian Perspective
- Anoushka Singh, Amity Law School, Noida

In India, the concept of the rule of law dates back to the Upanishads. Even today, the outline of the Indian Constitution is based on the concept of the rule of law. The editors of the Constitution were familiar with the proposed postulates about Dicey\'s rule of law and modified as they applied to British India. Therefore, in the suitability of things, the founding fathers of the Constitution gave due recognition to the concept of the rule of law.

Dicey\'s doctrine on the rule of law has been adopted and incorporated very succinctly into the Indian Constitution. The ideals of the Constitution , namely; Justice, freedom and equality are contained in the Preamble itself (which is part of the Constitution).

The Indian constitution has become the country\'s supreme law and other laws must comply with it. Any law that violates any provision of the Constitution, especially fundamental rights, is declared void. The Indian Constitution also incorporates the principle of equality before the law and equal protection of the laws listed by Dicey under article 14.

The fundamental human right to life and personal freedom was also enshrined in Article 21. Article 19 (1) (a) of the Indian Constitution guarantees the third rule of law principle (freedom of speech and expression). No one can be convicted of any crime, except for the violation of a law in effect at the time of the commission of the crime accused act . The principles of double danger and self-blame have also found their legitimate place in the Constitution. Articles 14, 19 and 21 are so basic that they are also called articles of the golden triangle of the Indian Constitution.

The "rule of law" is a strong pompous device. To condemn something "contrary to the rule of law" is tantamount to strong criticism. However, at least in popular discourse, the term is used freely. This reflects two aspects in which the rule of law, both from legal theory and from constitutional reality, is uncertain and controversial. First, what makes something contrary to the rule of law? In other words, what does the rule of law require first? And secondly, if something is contrary to the rule of law, what are the consequences of this? 

As regards the first question, there is a broad consensus that the rule of law imposes two types of requirements. There is little or no dissent from the idea that the rule of law implies what is sometimes called a principle of legality, requiring that those who claim to exercise legal authority actually possess it. Therefore, when a public body or a delegated legislator does something that goes beyond its legal powers, it violates the rule of law.

It is also generally accepted that the rule of law imposes a number of formal requirements regarding the general characteristics of the law and the legal system. These requirements are based on the need to respect human autonomy and dignity, which in turn requires that the law be accessible to the public, understandable and applied in a predictable and in principle way by independent courts. On this basis, a law that, for example, operated retrospectively to criminalize the conduct already committed would violate the rule of law because the criminalized persons would have been denied the opportunity to make an informed decision about whether to remain on the right side of the criminal law. The elimination of the possibility of making such an informed decision does not give due respect to the autonomy and dignity of the individual, treating it as nothing more than the object of an authoritarian and arbitrary legal regime. A system that does not meet the formal requirements of the rule of law is certainly not a "legal" system.

However, a question that divides legal and constitutional theorists is whether the rule of law should extend to the substantive requirements relating to the content of the law, as opposed to the formal requirements relating to the general characteristics of the legal rules and legal system. Take, for example, legislation that provides for, or even requires, discriminatory treatment for reasons such as sex or ethnic origin. Such legislation could be drafted to comply with the formal requirements of the rule of law, being clear, of public access, of perspective, etc. But would it conform to the rule of law, given the terrible affront to human dignity that implies unequal treatment?

This depends on the fact that, in the first place, the rule of law speaks of the content as something different from the general characteristics of the legal rules and, if so, for what reasons it does it. On this question, the views of theorists are strongly divided. The intrinsic moral appeal of values   such as equality leads some writers to support a conception of the rule of law that is substantial enough to understand these values. However, others, like Raz, argue that "if the rule of law is the state of good law, to explain its nature is to propose a complete social philosophy ". Rather, formal conception is said to claim moral neutrality that can isolate it from a form of containment that would erode its authority. The difficulty with this argument is that it is not at all clear that the formal conception of the rule of law is truly morally neutral. As noted above, it is animated by concern for human dignity and autonomy, and it is at least questionable that allowing these concerns to bite only the general features of the law, in addition to its content, imposes a somewhat arbitrary restriction on the field. application of the law.

The term "rule of law" is one which, over the years, has been used to convey a wide variety of ideas and has a number of meanings and corollaries, including its criticisms. In common language, it is often used simply to describe the state of affairs in a country where, in general, the law is observed and order is maintained, that is, as an expression synonymous with "law and order". However, for public lawyers, the phrase conveys something a little more precise. For them, the phrase is inextricably linked to Dicey\'s writings.


• Constitution of India, 1950
• Joseph Raz The Authority of Law 1979