RULE OF LAW AND SEPERATION OF POWER IN INDIA8 min read

By- Shashank Sachi

Rule of Law

Rule of Law i.e. the rule of legality the term rule of law derives its origin from the French phrase ” le principal de legalite” which perfectly determines it’s intention towards the governance of the government of the country that must be wrapped with the essence of rule of law.

Basically Rule of Law means no one is above law i.e. law is supreme and the affairs of the state are not by the rules made by its rulers or nominated persons but by the principal rule of law. So as per the rule of law people should be governed by the law of democracy the arbitrary decisions of its ruler as it follows a basic principle of constitutionalism which divides the power from one body i.e. if the law is made by one body it shall be administered by another and judged by another existing independent body.

In the words of Carolin Kenedy :

 “The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.”

Taking the Indian concept the constitution of India does not specifically mention the term Rule but the idea and intention of makers of Indian constitution tilt toward the rule of legality as it’s essence can easily be traced as the Indian judiciary use this term frequently in the cases and the apex court has clearly mentioned in various cases and Judgements that rule of law is a basic principle of Indian Constitution that shall remain untouched and even the power of lawmakers cannot touch this.

Concept of Rule of Law

In the modern form the concept of Rule of Law originated by Sir Edward Coke the Chief Justice in James I Reign.  But Sir Edward Coke the Chief Justice in James I Reign.e term Sir Edward Coke the Chief Justice in James I Reign.as it’s golden roots from Sir Edward Coke the Chief Justice in James I Reign. The concept traces its golden origin at greek where philosophers like Plato and Aristotle discussed this around 350 BC. 

Aristotle grounds the concept of Justice fairness and inclusiveness while Plato has said it as  a master of government which we can say that to encompass the fair justice and treat each one equal rule of law plays the role of the backbone of a democratic society

Meaning of Rule of Law

In the layman language we can say that rule of law is basically no one is above law and each one shall and must be treated equally no irrespective of their class caste or status.

The term extends it’s meaning further that no one shall be treated arbitrarily. The word law in the term Rule of Law means whether a man or society shall not be governed by the man but by the law. As the Indian constitution states in art. 13 it as law of land.

According to Blacks Law Dictionary :

Rule of Law is the basic principle to govern the people for the day to day affairs of state-approved by rulers by logic.

Basically it is a situation in which all person are treated equally.

Postulates of Rule of Law :

Rule of Law has three kind of postulates stated by A.V.Dicey in his concept of coke :

  1. Supermacy of Law
  2. Equality before Law
  3. Predominance of legal spirit

1 Supreacy of Law :

The first postulate of A V Dicey states that the law is supreme and no one is above it.

According to Dicey English men are rule by law and no one shall be above it irrespective of class or status.

2 Equality before Law :

The second postulate of A V Dicey states that everyone is equal before law no matter who the person is he/ she. Dicey has also criticized the french Droit administrative to adJudge state officials and citizens.

3 Predominance of Legal Spirit :

As I by the third postulate of Dicey, general standards of the Indian Constitution are the aftereffect of the choices of the Indian legal executive which decide to record privileges of private people specifically cases. As indicated by him, residents are being ensured the specific rights, for example, right to individual freedom and opportunity from capture by numerous constitutions of the states (nations). Just when such rights are appropriately enforceable in the official courtrooms, those rights can be made accessible to the residents. Rule of law as built up by Dicey necessitates that each activity of the organization must be sponsored and done as per law. In the current age, the idea of rule of law contradicts the act of presenting optional forces upon the legislature and furthermore guarantees that each man is limited by the conventional rules that everyone must follow just as means no hardship of his privileges and freedoms by a regulatory activity.

In case of violation of such rights one can easily approach the Supreme Court or high court under 32 and article 226 respectively.

Under article 32 of the Indian Constitution one can approach the court in violation of any of the rights and the court can issue writs like Habeas Corpus, mandamus, prohibition, quo warranto, and certiorari. And in order to prevent ultra vires the court can issue Judicial review.

Role of Indian Judiciary in Rue of Law

Som Raj v. State of Haryana

Absence of postulate of Rule of Law is arbitrary.

Keshvananda Bharti v. State of Kerela

Rule of Law is most important aspect of basic structure doctrine

ADM Jabalpur v. Shivkant Shukla

Also known as “Habeas Corpus case”. Question was raise is rule of law in India a par of article 21or not

Maneka Gandhi v Union of India

SC held article 14 as strike against arbitrariness

READ ALSO: PRINCIPLE OF HARMONIOUS CONSTRUCTION




SEPARATION OF POWER

Separation of power means the power in a democratic governance hierarchy must be distributed independently and shall be performed independently.

Well this model is not only for the democratic nations but for federal states too. This model traces its origin from ancient Greece which moved further to romaniac republic. its origin is traced to Plato and Aristotle. In the modern form, it can be found in the book of Montesquieu in the book ‘Esprit des Lois’  published in the year 1748.

Meaning of Separation of Power

In order to protect the rights of individual the powers to Judge has bee separated so that no one can intervene in anyone’s territory.

In general there are three accepted separation i.e. legislative Executive and Judiciary likewise the three main organs of government to govern each one as legislative executive and Judiciary respectively separately.

The power shall be divided as all the three have to do constructive work separately without involving in other’s territory i.e. executive shall not disturb Judiciary and legislative and vice -versa.

Montesquieu’s Doctrine

Apart from the historical trace of Aristotle or Plato modern form of separation of power will be blank until the proposed thought of Locke and Montesquieu. Locke distinguished as

1 Non-continuous Legislative Power

2 Continuous executive Power

3 Federation Power

he stated that the legislative power to make law is not a continuous chain as the law-making thing is very discontinued as per the need of the time and situation. And the implementation of law Prevailing in the society is continuous without any breakage by the executive authorities and the ultimate trial is with the power of federation that must not be touched.

This theory got different opinions in different geography across the world as French reJects the power of courts to the legislative and executive. The doctrine was never accepted in strict sense in England. But was accepted in the USA and India.

Status of Separation of Power in India

Prime facie we can say that separation of power is widely prevailing in India yes it is but time to time it needs to be reform but still the fracture exists.

Case References

 I.C.Golak Nath v. State of Punjab

“The Constitution brings into reality distinctive sacred elements, to be specific, the Union, the States, and the Union Territories. It makes three significant instruments of intensity, to be specific, the Legislature, the Executive and the Judiciary. It outlines their ward minutely and anticipates that they should practice their separate forces without violating their cutoff points. They should work inside the circles allocated to them.

Indira Nehru Gandhi v. Raj Narain

That is the Indian Constitution there is separation of powers from a wide perspective as it were. An unbending separation of power as under the American Constitution or under the Australian Constitution doesn’t matter to India. Chandrachud J. likewise saw that the political handiness of the principle of Separation of Power isn’t generally perceived. No constitution can make do without a cognizant adherence to its fine check and equalization. The rule of Separation of Power is a rule of limitation which has in it the statute, natural in the judiciousness of self-protection, that carefulness is the better piece of valor.”

Still we cannot say separation of power is fully accepted by the constitution transparently as the pardoning power of president clearly seems as an intervention in power of Judiciary and the legislative can also be seen intervening the functionaries of executives. Apart from this there exist other factors that make a lucid separation of power concept and a fractured one too. 

So there exist separation of power but not in rigid




Leave a Reply

Your email address will not be published. Required fields are marked *