RULE OF LAW VS. RULE OF MAN: WHAT...

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85 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL]

VOLUME 6 ISSUE 6

RULE OF LAW VS. RULE OF MAN: WHAT PREVAILS?

Authored by: Anukirat Singh Baweja*

* 3rd Year BA LLB Student, Amity Law School, Noida.

___________________________________________________________________________

ABSTRACT

The paper is limited to explain the “rule of law” and “law of man” and how courts interpret Rule of

law. The paper limits its research to how rule of law restricts the arbitrary exercise of power by well-

defined and established laws with wide scope of interpretation unlike rule of man. Further this research

aims at: The functional interpretation of the term “rule of law’’, and its consistency with traditional

meaning, The contrast of the “rule of law’’ with “the rule of man” and therefore how the rule of law is

thus somewhat at odds with flexibility and imperative to provide justice in a progressive society. The

research paper is to see after analysing various theories and principles whether Rule of law or Rule of

man is better for a progressive society where all the rights of a person are well defined and intact and

where there is infringement of such rights he is rightly restored of them, thus, making judiciary and

judicial review an essential part of the Rule of Law. The research is based on a doctrinal model of

research as for arriving at better conclusions regarding the functional approach of rule of law and rule

of man and as to what prevails in a progressive society.

Keywords: Rule of Law, Progressive Society, Judicial review, Societal Law

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INTRODUCTION

“Where there is no law, there is no freedom.” -John Locke, Two Treatises on Government

In modern democratic societies, the administration has acquired a vast accession of power and has come

to discharge functions which are varied and diverse in scope, nature and ambit. The Constitution of a

country seeks to establish the fundamental organs of government and administration; lays down their

structure, composition, powers and principal functions, defines the interrelationship of one organ with

another, and regulates the relationship between the citizen and the state, more particularly the political

relationship. The “Rule of Law” as it is applied is the infrastructure of the system which has been formed

by the social necessity to reach the end in mind. “Rule of Man” is the complete opposite of the “Rule

of Law”. It is welded, not by the Societal” Laws of Man”: but by a single person or dictator.

Justice in rule of law means giving due to everybody and keeping the balance even in ‘haves’ and

‘have nots’’ Social Economic and Political. Its main impact is in what is known as ‘distributive justice’

or ‘administration of justice’, justice according to law, natural justice, legal justice, civil justice,

criminal justice. The purpose is keep all in themselves.

Judicial review is an inherent part of rule of law and so is independence of judiciary. Non-arbitrariness

is a necessary component of the rule of law. The state, therefore, is subject toetat de droit, i.e., the state

is submitted to the law which implies that all action of the state or its authorities and officials must be

carried out subject to the constitution and within the limits set by the law, i.e., constitutionalism.1

CONCEPTUAL ANALYSIS OF RULE OF LAW AND RULE OF MAN

In its simplest form, the Rule of Law is contrasted with the rule of men and the rule by law. It essentially

means that the ‘law’ should rule, rather than ‘men’. While this description is generally accepted, the

precise components of the Rule of Law are elusive. Rule of man is absence of rule of law. Rule of man

is a rebounded society, meaning rules change from ruler to ruler. It is a society in which one person,

regime, or a group of persons, rules arbitrarily.

The rule of law was first codified in Western European government in the Magna Carta in 1215, when

English nobles demanded that King John’s powers to arbitrarily arrest or imprison them be curtailed.

The charter states that even the King had to follow the law:

1 State of Bihar v. Subhash Singh, (1997) 4 SCC 433

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“No free man shall be taken, imprisoned, disseized, outlawed, or banished, or in any way destroyed,

nor will he proceed against or prosecute him, except by the lawful judgment of his peers and the Law

of the Land.”

In his 1776 pamphlet Common Sense, American founding father Thomas Paine wrote that the law itself

ought to be more important and more powerful than any individual, including a king:

“.... But where says some is the king of America? I’ll tell you Friend, he reigns above, and doth not

make havoc of mankind like the Royal of Britain. . . in America THE LAW IS KING. For as in absolute

governments the King is law, so in free countries the law ought to be king; and there ought to be no

other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be

demolished, and scattered among the people whose right it is.”2 The Sovereign exercises absolute

authority and is not bound by any law, he as a person exists outside law. The philosopher Thomas

Hobbes advocated such a society, saying that a society would be better if it had one absolute monarch

as he would be free to choose and do what he thinks is best for the society without taking into account

the opinions of others3

Diecy’s "Rule of law," concept deeply rooted in the history and development of law in England and

English-speaking North America, means the "supremacy of law." Government officers, like ordinary

citizens, are subject to and must abide by the law; no one is above the law.

Ideas about the rule of law have been central to political and legal thought since at least the 4th century

BCE, when Aristotle distinguished “the rule of law” from “that of any individual.” In the 18th century

the French political philosopher Montesquieu elaborated a doctrine of the rule of law that contrasted

the legitimate authority of monarchs with the notion of autocrats. It has since profoundly influenced

Western liberal thought.

Montesquieu wants to capture the “spirit of the law” and submit them to a scientific analysis.

Montesquieu distinguishes the various positive laws and the universal law of which the first areonly

special cases: the law (positive) means a rule established to ensure the security and freedom, rule

appears as an extended specification, as an expression of human reason. Following Montesquieu’s

approach, in the year 1885, A.V. Dicey on observing the UK model laid down three principles to be

arising out of Rule of Law.

Supremacy of Law

2 Rule of Law and Why it Matters, Facing History and ourselves

https://www.facinghistory.org/resource-library/rule-law-and-why-it-matters

3 Edwards, Alistair "Hobbes" in Interpreting Modern Political Philosophy: From Machiavelli to Marx, eds. A Edwards and

J Townshend (Palgrave Macmillan, Hound mills) (2002)

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Equality before the law and

Predominance of Legal Spirit

As Dicey defined it, the Rule of Law had three meanings in England:

(1) No one can be made to suffer punishment or to pay damages for any conduct not definitely

forbidden by law

(2) Everyone's legal rights and liabilities are determined by the ordinary courts of the realm and

(3) Everyone's individual rights are derived from the ordinary law of the land, not from a written

constitution, so that the English Constitution is the product of the ordinary functioning of the

courts and not the source of the courts' jurisdiction. Dicey's formulation was highly specific.

The Rule of Law was a cultural attribute common to the West, but rather it was local to England,

a distinctive product of English history and legal institutions. Dicey's Rule of Law distinguished

the English legal system from the French across the English Channel, where droit administrate

if meant separate laws and courts for government officials, as well as Rule of Law was not from

the Americans across the Atlantic Ocean, where the written state and federal constitution

reigned supreme.4

CO-RELATION OF CONCEPT OF EQUALITY (Article 14) AND PROHIBITION

AGAINSTDISCRIMINATION (Article 15) WITH RULE OF LAW

Article 14 states that the State shall not deny to any person Equality before the law or the equal

protection of laws within the territory of India. If this term is closely looked then it appears that in

essence both terms mean ‘Equal Justice’. The Right to Equality is conferred on every person and not

merely on citizens. It was held in State of West Bengal v. Anwar Ali Sarkar5 that ‘law’ in Article14 is

not confined to the law enacted by legislature but includes any order or notification. Such an

interpretation makes the protection provided in Article 14 complete available to every person. Seervai

says, “If all men were created equal and remained throughout their lives, then the same laws would

apply to all men”.

Equal protection of the laws must mean the protection of equal laws for all persons similarly situated.

The Constitution emphasis upon the principle of Equality as basis to the Constitution. This means that

even a Constitutional amendment offending the Right to Equality will be declare invalid. Neither

4 A.V. Dicey, The Law of the Constitution (Oxford Edition of Dicey, 2 5 1952 AIR 52

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parliament nor any state legislature can transgress the principle of Equality, which has also been

observed by Supreme Court in Kesavananda Bharti v. State of Kerala6

This principle has been reiterated by the Supreme Court in M.G. Badappanavar And Anr. Etc vs State

of Karnataka and ors7 case in the following words: “Equality is a basic feature of the Constitution of

India and any treatment of equals unequally or unequal as equal will be violation of the basic structure

of the Constitution of India”.

The Right to Equality has been declared by the Supreme Court as the basic feature of the Constitution.

It is rightly observed by the Supreme Court in relation to Right to Equality in M. Nagaraj v. Union of

India8“there can be no justice without the equality”.

The Constitution is wedded to the concept of Equality. The Preamble to the Constitution emphasises

upon the principle of Equality of basic to the Constitution. This means that even a Constitutional

amendment offending the Right to Equality will be declared invalid. Over the last several years the

courts have been unfolded the vast potentialities of Article 14 as a restraint on the legislative power of

the Legislature as well as administrative power of the Administration. Article 14 bars discrimination

and prohibits discriminatory laws. Article 14 is now proving as a bulwark against any arbitrary or

discriminatory state action.

The horizons of Equality as embodied in Article 14 have been expanding as a result of the judicial

pronouncements and Article 14 has now come to have a highly activist magnitude.

In the case of Indra Sawhney v. Union of India9 the right to equality is also recognised as one of basic

features of Indian constitution. Article 14 applies to all person and is not limited to citizens. A

corporation, which is a juristic person, is also entailed to the benefit of this article. This concept implied

equality for equals and aims at striking down hostile discrimination or oppression of inequality. In the

case of Ramesh Prasad v. State of Bihar10. It is to be noted that aim of both the concept, ‘Equality

before law’ and ‘Equal protection of the law’ is the equal Justice.

A good point to start the latest constitutional examination is the Supreme Court’s view on reservations

based purely on economic criteria. Eight of the nine judges in Indra Sawhney11(November 1992) held

that the Narasimha Rao government’s executive order (and not a constitutional amendment) providing

for 10% reservations based purely on economic criteria was unconstitutional. Their reasons included

6 AIR 1973 SC 1461 7 AIR 2001 SC 260 15 8 AIR2007SC71 9 AIR 1993 SC 477 10 AIR 1978 SC 327 11 Supra note

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the position that income/property holdings cannot be the basis for exclusion from government jobs, and

that the Constitution was primarily concerned with addressing social backwardness.

The pointed question is whether measures based purely on economic criteria violate the ‘basic structure’

of the Constitution? I do not think it is a sufficient answer to say that ‘backwardness’ in the Constitution

can only mean ‘social and educational backwardness’. Citing the Constituent Assembly debates is not

going to take the discussion much further either. It is difficult to see an argument that measures purely

on economic criteria are per se violative of the ‘basic structure’. We can have our views on whether

such EWS reservations will alleviate poverty (and they most certainly will not), but that is not really

the nature of ‘basic structure’ enquiry. Providing a justification for these measures as furthering the

spirit of substantive equality within the Indian Constitution is not very difficult.

ROLE OF JUDICIARY IN PRESERVING THE RULE OF LAW

“Even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of his

life and liberty without the authority of law. Without such sanctity of life and liberty, the distinction

between a lawless society and one governed by laws would cease to have any meaning...Rule of Law

is now the accepted norm of all civilized societies”. Most famously in the case of Kesavananda Bharati

v. State of Kerala12the Supreme Court held that the significance of Rule of Law and described it as

essential part of the constitution and as such cannot be amended by any Act of Parliament, thereby

showing how the law is superior to all other authority of men. In Kesavananda Bharati v. State of

Kerala13, the Supreme Court is ‘said’ to have declared that the Rule of Law is part of the basic structure

of the Constitution This conclusion was arrived by a subsequent decision of the Supreme Court in Indira

Nehru vs Raj Narain14

The Supreme Court observed in Som Raj v. State of Haryana15 that the absence of arbitrary power is

the primary postulate of Rule of Law upon which the whole constitutional edifice is dependant.

There are around 3000 decisions of the Supreme Court that use the phrase Rule of Law, out of which

around 200 have been rendered by Constitutional Benches. Among the High Courts, there are around

25,000 decisions that make reference to the phrase. However, very few of these decisions have tried to

identify the contours of the Rule of Law asunderstood by the court In Indira Gandhi16,

12 Supra 8, at 9 13 Ibid 14 AIR 1975 SC 2299 15 1990 AIR 1176 16 Supra 19, at 11

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Mathew, J. wrote perhaps the first exhaustive analysis of the Rule of Law concept in any Supreme Court

judgment. After quoting both Dicey and Hayek and terming their theories ‘extravagant versions or

ideals’ of Rule of Law: “There is a genuine concept of rule of law and that concept implies equality

before the law or equal subjection of all classes before the ordinary law. But, if rule of law is to be a

basic structure of the Constitution, one must find specific provisions in the Constitution embodying the

constituent elements of the concept. I cannot conceive of rule of law as a twinkling star up above the

Constitution. To be a basic structure, it must be a terrestrial concept having its habitat within the four

corners of the Constitution. The provisions of the Constitution were enacted with a view to ensure the

rule of law. Even if I assume that rule of law is a basic structure, it seems to me that the meaning and

the constituent elements of the concept must be gathered from the enacting provisions of the

Constitution. The equality aspect of the rule of law and of democratic republicanism is provided for in

Article 14.”17

Justice Mathew made two significant points—first, the Rule of Law has to be found within the

Constitution for it to have a legal bearing and second, the theories of Rule of Law do not have a place

in the interpretation or determination of the basic structure. Justice Mathew’s views in fact contradict

the views of Justice Shah’s observations in Madhava Rao Jivaji Rao Scindia v. Union of India18,“the

foundation of our Constitution is firmly laid in the Rule of Law and no instrumentality, not even the

President as the head of the executive is invested with arbitrary authority.” The Court further held that

the Rule of Law is the bedrock of our Constitution. The question that arises is whether the Rule of Law

is part of the Constitution or vice versa.

Krishna Iyer, J. in State of Karnataka v. Ranganatha Reddy, gave a very wide meaning to the Rule of

Law by observing,“our emphasis is on abandoning formal legalistic or sterile logomachy in assessing

the vires of statutes regulating vital economic areas, and adopting instead a dynamic, goal based

approach to problems of constitutionality. It is right that the rule of law enshrined in our Constitution

must and does reckon with the roaring current of change which shifts our social values and shrivels

our feudal roots, invades our lives and fashions our destiny.”

With this Justice Iyer understood the Rule of Law as a principle that must address the various

inequalities and problems in our society. In one statement the learned judge elevated the Rule of Law

to a moral obligation and a good in itself. As interpreted by Justice Iyer, the Rule of Law in India goes

beyond even the broadest of substantive theories and appears to surpass even the Aristotlean archetype

that equates the Rule of Law with the rule of reason.

17 Ibid, 1975 Supp SCC 1, at pg 336-337 18 (1971) 1 SCC 85

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In a similar, albeit narrower, vein Bhagwati, J. in Bachan Singh v. State of Punjab, observed, “Now if

we look at the various Constitutional provisions including the Chapters on Fundamental Rights and

Directive Principles of State Policy, it is clear that the rule of law permeates the entire fabric of the

Constitution and indeed forms one of its basic features. The rule of law excludes arbitrariness; its

postulate is ‘intelligence without passion’ and ‘reason freed from desire’. Where we find arbitrariness

or unreasonableness there is denial of the rule of law. That is why Aristotle preferred a government of

laws rather than of men. ‘Law’ in the context of the rule of law, does not mean any law enacted by the

legislative authority, howsoever arbitrary or despotic it may be. Otherwise even under a dictatorship it

would be possible to say that there is rule of law, because every law made by the dictator howsoever

arbitrary and unreasonable has to be obeyed and every action has to be taken in conformity with such

law. In such a case too even where the political set up is dictatorial, it is law that governs the relationship

between men and men and between men and the State. But still it is not rule of law as understood in

modern jurisprudence, because in jurisprudential terms, the law itself in such a case being an emanation

from the absolute will of the dictator it is in effect and substance the rule of man and not of law which

prevails in such a situation. What is necessary element of the rule of law is that the law must not be

arbitrary or irrational and it must satisfy the test of reason and the democratic form of polity seeks to

ensure this element by making the framers of the law accountable to the people....There are three

Fundamental Rights in the Constitution which are of prime importance and which breathe vitality in

the concept of the rule of law. They are Articles 14, 19 and 21 Validating our understanding of what

Justices Iyer and Bhagwati said, in I.R. Coelho v. State of Tamil Nadu19 a nine-judge bench held that

“Articles 14, 19 and 21 represent the foundational values which form the basis of the rule of law. These

are the principles of constitutionality which form the basis of judicial review apart from rule of law and

separation of powers.”

In many other judgments the Court has noted the fundamental place of the Rule of Law in India and

has relied on it to support and validate many other diverse principles, including those which form part

of the basic structure on their own.

In Bhagwati, J in S.P. Gupta v. Union of India 20noted: “If there is one principle which runs through

the entire fabric of the Constitution, it is the rule of law and under the Constitution it is the judiciary

which is entrusted with the task of keeping every organ of the State within the limits of the law and

thereby making the rule of law meaningful and effective.

19 (2007) 2 SCC 1 20 AIR 1982 SC 149

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At the same time, the Court has not hesitated to create room for manoeuvring in order to address

‘practical’ day-to-day administrative difficulties by finding that the vesting of discretion is in itself

`need for discretion and the requirement to curb arbitrariness. In Supreme Court Advocates on Record

Association v. Union of India21

, J.S. Verma, J. pointed out that, “It is, therefore, realistic that there has

to be room for discretionary authority within the operation of the rule of law, even though it has to be

reduced to the minimum extent necessary for proper governance; and within the area of discretionary

authority, the existence of proper guidelines or norms of general application excludes arbitrary exercise

of discretionary authority.”

Radhakrishnan, J. speaking for the Constitution Bench in K.T. Plantation (p) Ltd v. State of

Karnataka22, gave a slightly different analysis. Assuming that the Rule of Law is part of the basic

structure, the judge ruled that statutes that violate the Rule of Law can be found to be unconstitutional.

The learned judge observed that the origin of the Rule of Law can be traced to Aristotle and philosophers

like Hobbes, Locke, Rousseau, Montesquieu and Dicey. After discussing the concept in its many shades

and colours, he declared,

“Rule of Law as a concept finds no place in our Constitution, but has been characterised as a basic

feature of our Constitution which cannot be abrogated or destroyed even by the Parliament and in fact

binds the Parliament...Rule of Law affirms parliamentary supremacy while at the same time denying it

sovereignty over the Constitution...Rule of Law as a principle contains no explicit substantive

component like eminent domain but has many shades and colours. Violation of principle of natural

justice may undermine rule of law so also at times arbitrariness, proportionality, unreasonableness, etc.,

but such violations may not undermine rule of law so as to invalidate a statue. Violation must be of such

a serious nature which undermines the very basic structure of our Constitution and our democratic

principles. But once the Court finds, a Statute, undermines the rule of law which has the status of a

constitutional principle like the basic structure, the above grounds are also available and not vice versa.

Any law which, in the opinion of the Court, is not just, fair and reasonable, is not a ground to strike

down a Statute because such an approach would always be subjective, not the will of the people, because

there is always a presumption of constitutionality for a statute. Rule of Law as a principle, it may be

mentioned, is not an absolute means of achieving the equality, human rights, justice, freedom and even

democracy and it all depends upon the nature of the legislation and the seriousness of the violation.

Rule of Law as an overarching principle can be applied by the constitutional courts, in the rarest of rare

21 (1993) 4 SCC 441 22 (2011) 9 SCC 1011)

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cases, in situations, we have referred to earlier and can undo laws which are tyrannical, violate the basic

structure of our Constitution, and our cherished norms of law and justice.”

INTER-RELATIONSHIP BETWEEN STATE AND RULE OF LAW

State and Sovereignty

It is difficult to say whether the State had a singular origin or it evolved as a single process. The history

of human civilisation reveals that men as social beings tended to live in larger groups under a common

authority for the purpose of regulating their interests inter-se as also for the adjustments of relations

between it and similar other groups. The State evolved from a simple to a more complex form with

extension of its activities. Eventually, the strong political society in turn contributed to the formation of

a modern governmental state. The main factors which contributed to the evolution of the State include

sociability of man, kinship, religion and industry. The war also led to the growth of a social

organisational form of larger group called the State for the sake of protection and self- preservation of

its people.

Concept of State: The expression ‘State’ is derived from the Latin term ‘status’, which means

‘standing’; i.e. position of a person or a body of persons. It is difficult to give a precise definition of

State because different political thinkers and jurists have defined it in different ways. Some of the

generally accepted definitions of the State as given by eminent Jurists are as follows:

Holland – According to Holland a “State is a numerous assemblage of human beings, generally

occupying a certain territory amongst whom the will of the majority or of an ascertainable class of

persons is, by the strength of such majority or class made to prevail against any of their member who

oppose it.”

Salmond – defines State as “an association of human beings established for the attainment of certain

ends by certain means.”23 The State is a society of men established for the maintenance of peace and

justice within a definite territory by way of force. It therefore, follows that the central authority of

political society which is called the State must be powerful enough to command obedience of its

subjects and must be able to withstand external aggression.

The word ‘State’, when it came into use in England during the sixteenth century, brought with it from

Italy the idea of a high ‘State’ or stateliness (state) vested in some one person or someone body of

persons. It meant primarily a peculiar standing, of a kind which was political, and of a degree in that

23 P. F. Fitzgerald: Salmond on Jurisprudence (12thed.), p.132

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kind which was superior or supreme; and thence, by an easy extension, it came to be used derivatively

of the person or body of persons invested with such standing.

This was the usage down to 1789, and even later: the ‘State’ meant primarily the position of being the

superior or supreme political authority, and thence it came to be applied derivatively to the person or

body enjoying that position.

It was thus a term very similar to, and practically identical with, the terms ‘sovereignty’ and ‘sovereign’,

similarly derived from the Latin (in the late Latin form superanus) and similarly transmitted to England

through Romance derivatives from the Latin (and especially through the Italian sovrano).

Bacon, in the beginning of the seventeenth century, uses ‘State’ as a term synonymous with or parallel

to ‘King’, as when he speaks of ‘Kings and States’ consulting judges. Louis XIV, in the middle of the

seventeenth century, must have thought that he was stating a truism, and not attempting a paradox,

when he exclaimed L’Etat, c’estmoi! Was he not in his own view, as in that of his subjects, the person

who enjoyed the ‘state’ and position of being the supreme political authority, and was he not therefore

‘the State’?

So far, and so long as these views prevailed, the notion of authority, of a position or ‘standing’ of

supreme authority, and of the person or body placed in that position and having that ‘standing’— this

was what formed the connotation of the word ‘State’.

From the etymology and history of the term ‘State’ we may now turn to those of the term ‘law’. The

term appears to have been borrowed by the English, about the year 1ooo, from their Scandinavian

invaders: it came to them not from the Latin (the Latin terms Lex and legalis are not cognate in origin

or connotation), but from a Teutonic root meaning to ‘lay’, to place, or to set.

Law is thus etymologically something positum, or, as we should say, ‘imposed’: it is something laid

down or set, as one sets a task or lays down a rule; and it is accordingly defined in the oxford English

Dictionary as ‘a rule of conduct imposed by authority’.

The view has some historical justification, or at any rate explanation; but it does not square with the

facts and ideas of contemporary life. The word ‘State’ no longer suggests to our minds the idea of

authority, or presents them with a picture of the high ‘state’ and the sovereign status of a person or body

of persons enjoying and exercising a right of command over subjects.

Concept of Sovereignty: Sovereignty of the state implies that it is completely free from any kind of

external control and commands habitual obedience from the people within its territory. Sovereignty

may be defined as supreme and unfettered authority within a state. The conception of sovereignty has

played and continues to play an important part in juristic speculations. According to Austin, sovereignty

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is distinguishable by two main characteristics, one positive, and the other negative. To satisfy the

positive test, the bulk of a given society mast render habitual obedience to a common superior. The

superior must be human, and must either be one person or a determinate body. The negative

characteristic is that the common superior must not be in the habit of rendering obedience to another

determinate human superior. For Austin, sovereignty is indivisible and illimitable.

It is, however, submitted that the Austinian view that that sovereignty is neither divisible nor limitable,

is now generally rejected. The principal objection to the view that sovereignty is indivisible is that in

the first place it is habitually split up into legislative sovereignty, executive sovereignty and judicial

sovereignty and these are quite independent of one another and cannot encroach on one another's sphere

in anyway. Secondly in the case of federations, the sovereignty has been divided between each of the

constituent States and the federal State. Thus, in such cases it is obvious that sovereignty is not only

divided, but it is also limited. In view of these considerations, Jethro Brown has rightly suggested that

the correct view ought to be that of the state itself is sovereign and Parliament is mainly the organ of

legislative sovereignty. This view has merited support from the modern jurists.

“It is expressed by Austin in the propositions that ‘law is a command which obliges a person or

persons’; that ‘the term “superiority” is implied by the term “command”, and that accordingly ‘every

law simply and strictly so called is set by a sovereign person or . . . body of persons to a member or

members of the independent political society wherein that person or body is superior or supreme”.

Sovereignty includes various important principles or laws which are essential for its legitimate power-

exercise over people. In the sphere of sovereignty when one owes his duty to the state, the state in turn

is expected to provide complete protection to his life and property.15 Thus, in sovereignty there exists

a logical relationship between duty and right. ‘Improvement’, which comes as the final step implies that

a concept needs to be given a definition that would help to arrive at its complete and clear meaning.16

Sovereignty refers to supreme power of the sovereign but this power is not employed without use of

rationality and it gives due regards to custom, social values etc. All these factors gives sovereignty its

legitimacy, otherwise it would perish in due course of time. Thus, sovereignty though by nature is

absolute and unlimited but it is by no means an arbitrary power or is coercive by nature.

Another distinction is made between ‘De jure’ and ‘De facto’ sovereignty. A De jure sovereign is given

supreme power by the law. He rules and people obey him, although he may be less in physical strength.

On the other hand, De facto sovereign is one whom the law of country does not recognize as a sovereign

but he enjoys supreme power either by virtue of his physical strength or moral force. Thus, he may be

a military dictator, a spiritual priest, traditional ruler etc. It is often seen that in due course of time a De

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facto sovereign obtains legal status and ultimately becomes De jure sovereign. This can be illustrated

with the example of Bolshevik regime in Russia which from a De facto became a De jure regime.

Sovereignty has ‘exclusiveness’ which means that the state is supreme and all other higher powers are

excluded from the state. There is only one sovereign and no association can compete with it. Though

the supreme will of the state are exercised through different organ but it does not imply a division in

the will of the state that is sovereignty is indivisible. Thus, sovereignty as an important feature of the

state has absoluteness, permanence, exclusiveness, indivisibility and soon.

INTER-RELATIONSHIP BETWEEN STATE AND RULE OF LAW

Transparent Insight: Jurists have always expressed divergent views about the relationship between the

state and the Rule of law. Freeman theory propounded in this regard. According toone view, the state

is superior to love because it creates law while the other view holds that law precedes the state. There

is yet another view with suggest that the law and state all the same looked from the point of view of the

functions they perform.

Law as a product of State - English jurist Austin and Bentham have expressed a view that law is a

product of the State. However, the sovereign himself is not bound by the law which is binding on his

subjects. He has unbridled power to repeal, abrogate or annul the laws so enacted. Hegel also supported

this view and opined that law is a product of the state. The Nazi and Fascist rulers treated law as the

creation of State the ruler was above law.

Law is above the State - Yet another School of Juristic thought believed in the supremacy of law and

held that law is above the state. Harold Laski, Duguit and Sir Ivor Jennings asserted that sovereign is

bound by law and he is not above law. Krabbe also supports this contention and hold that the ruler

cannot change the law by his near volition. In fact, law checks the arbitrary exercise of power by the

state, i.e., the executive.

John Rawls agreed that political power is always coercive backed by State machinery enforcing the

laws. But in order to ensure stability, laws should be acceptable to all the citizens as just and fair.

Political society being everlasting, citizens have no choice to leave it voluntarily as in case of any

Private Association. The laws should, however, be aimed at removing disparity to the maximum

possible extent show that the gap between the less advantaged and more advantaged may be minimized

if not obliterated.

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State and law are one and the same - Kelson opined that in fact law in the state are the two sides of the

same coin. He observed, "when we think of the abstract rules we speak of the law, when we consider

the institutions which the rulers create, we speak of the State.

The foregoing analysis makes it abundantly clear that law and state are intimately inter-linked. The

question as to which of the two is supreme has to be answered in context of the polity of the State

concerned. Thus, in England, the Supremacy of the state is evident from the fact that law is considered

to be a command of the sovereign who is above and beyond law. But in India, it is not so. Even the

Upnishads have reiterated more than ones that "Law is the King of Kings" and no one, not even the

King is above law. The code of Manu has also acknowledged the supremacy of law over the ruler and

expected the King to follow the tenets of Dharma, i.e. the law and governance of his subjects. The

supremacy of the Constitution, which is the law of the land in India, has been preserved by the judiciary

through the process of judicial review. The expression 'State' as defined in Article 12 of the constitution.

The purpose behind having our fundamental rights, rests in the need for having a just society i.e a nation

ruled by law and not by a tyrant. Rule of one man only leads to eventual resentment amongst the

citizenry as maker, executor and interpreter of law is the same man. Moreover, in case of a infringement

of human rights of an individual by the abuse of state power, he will have no option but to suffer because

there is just no hope for relief in a tyranny.

India figures in the top 5o countries in the world for an effective criminal justice system, according to

a new study that ranks countries on how the rule of law is experienced by citizens.

However, the study finds that it is among the worst performing countries when it comes to civil justice.

The Rule of Law Index 2015, analyses 102 countries worldwide using a survey of over a 1,000

respondents from three big cities, along with local legal experts, in each country. The data, collected in

2013, measures how the rule of law is experienced in practical, everyday situations using 47 indicators

across eight categories — constraints on government powers, absence of corruption, open government,

fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice.24

“India is a democratic country governed by the rule of law. We all have utmost respect for and full trust

in our independent judiciary, we are confident our sound and legally sustainable position would be

vindicated by the Hon’ble Supreme Court.” ministry spokesperson Ravish Kumar said.25

24 https://www.thehindu.com/news/national/rule-of-law-index-india-scores-a-mixed-bag/article7275999.ece

25 https://www.telegraphindia.com/cid/1705

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WHY RULE OF LAW AND NOT RULE OF MEN

Rule of law is opposed to rule of man. It does not and is not capable of being defined precisely. King

in England was an institution which was law, Rex was Lex. This view was upheld by majority (7:5) in

R v Hampden26 famously known as Ship money case. Chief Coke was removed from the post of post

of Chief Justice of the King’s Bench. He was one amongst five who upheld

‘Lex is rex’ and majority held ‘rex is lex’, Act of settlement, 17o1 restored “lex is rex’.

Rule of law is composite name for ‘lex is rex’. Law is king of kings. All power flows out of law and

merges in law. The clamour for rule of law can be seen in what Professor A.V. Dicey wrote in 1885.

The idea includes justice, liberty, equality and fraternity in a democratic republic which is sovereign,

socialist and secular. There can be no better enumeration of rule of law than what is in the Preamble to

the Indian Constitution.

Absence of arbitrary powers, supremacy of law, equality before law and individual liberties are that

rule of law stands for. Article 14, 19, 21, 32 and 226 are wherein rule of law stands spread over the

Indian Constitution. Article 15 deals with Prohibition of Discrimination in Indian Constitution.

The concept of equality before the law is equivalent to the second element of the concept of the ‘rule

of law’ propounded by A.D. dicey, the British jurist. But certain exceptions to it is, the president of

India, state governors, Public servants, Judges, Foreign diplomats, etc., who enjoy immunities,

protections, and special privileges.

It provides that there shall be no restriction on any person on any of the above bases to access and use

the public places such as shops, restaurants, hotels, places of public entertainment etc. or use of wells,

tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of

State funds or dedicated to the use of the general public. Under Article 15 (3) & (4), the government

can make special provisions for women & children and for a group of citizens who are economically

and socially backward.

Justice in rule of law means giving due to everybody and keeping the balance even in ‘haves’ and ‘have

nots’’ Social Economic and Political. Its main impact is in what is known as ‘distributive justice’ or

‘administration of justice’, justice according to law, natural justice, legal justice, civil justice, criminal

justice. The purpose is keep all in themselves.

Protection of the weak: Rule of law aims to protect not only economically, socially, physically, or

educationally backward, weak from affluent class, it also saves well to do classes from injustice of these

26 (1637)3StateTr826

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weak when they unite to cause injustice to the person of other class. It is class that does atrocities on

another even if that other is otherwise powerful left alone. Mass destroying singles. Rule of law protects

such individuals also.

‘Equality’ is in article 14. Equality before law and Equal Protection of law are aims of equality. Equality

means like should be treated alike. And unlike, unlike. Unequal’s cannot be treated equally,

classification is permissible. Class legislation is prohibited. Classification must be reasonable. It should

be based on ‘intelligence differentia’ those in class and those left out of that class. This should have

nexus with object sought to be achieved. Equality is ‘anti thesis of arbitrariness’

‘Liberty’ Concept of liberty is in Article 21. No person shall be deprived of his life or personal liberty

except according to procedure established by laws. ‘Fraternity’ Abolition of untouchability, title,

guarantee to access to public places, temples, right to education, uniform civil codes are examples

wherein fraternity has been ensured.

‘Law for men’ and ‘Law for animal’: Eating, getting afraid, sex and many other are common to men

and animals. Men are higher ‘souls’ for simple reasons. They have capacity to evolve; to ascend on

higher plane; to know themselves, the purpose why men are here. Animals are souls to eat, live and

decay.

The only thing that makes the difference in the two souls is ‘intellect’ i.e. the capacity to know what is

right and what is wrong. The animals are lower souls. They do not have ‘intellect’. The dog, horse, cow,

birds sometimes create an impression by their movements of having capacity to understand. It is mere

confusion, the animal reacts to impulse.

Law of animal kingdom is unpolluted by absence of ‘intelligence’. The animals that eat grass do not eat

meat. So those that eat meat do not eat grass. Man is the only exception that eats both meat and

vegetables. Animal has a ‘breeding season’; Men breed every time. Men change law that does not suit

them, animals do not. Men are distant from ‘nature’, behave against nature, win and tame the forces of

nature. Discontent is nature of men. Animals are contended.

Rule of law and deviance: Rule of law is fundamental to existence of a society whether it be pre-legal

or legal that is primitive or modern; breach of law is an exception. Breach of law can in a way said to

be failure of rule of law. It may occur due to rule of law itself; excess or inaction or no action or late

reaction of law, its enforcement, conduct of law enforcement agencies, organs of law or organisations

of law; Executive, police, court or all or any of these. Human nature; its reaction towards organs of law,

human expectations; their fulfilment or non-fulfilment all may be reasons or factors assisting, provoking

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Rule of law and rule of bullet: Rule of law is contrary to rule of gun. It is opposed to rule by men. But

not always so. Law abiders get protection of rule of law; it protects those who surrender to processes of

law. It does not mean terrorists, Naxalitesor maoists would also get protection of rule of law when waging

law or out to kill innocent people. Rule of law then consists of use of force proportionate to threat

perceived. It would include killing the terrorists, wiping out naxalism. It is strength of State. Rule of law

is for human lives with dignity. It is not to protect evil. Rule of bullet converts itself into rule of law for

evils. Terrorists and Naxals speak language of gun. They understand only the language of gun. Law

cannot make distinction in terrorists, Naxals or Maoists. All are killers of innocent mass. The one who

makes use of either of these bullets are sworn enemy of humanity. He is not ‘human’ and as such has no

‘human right’ and cannot have protection of rule of law or compelling breach of law or Rule of law. All

these are areas which need closer studies by socio-legal researchers.

Rule of law and law breakers: Terrorists and Naxals: Rule of law protects those who are personal,

Natural human beings or artificial juristic persons. ‘Personality’ is a gift of the society to child on birth.

It is retained by him/her till obedience to law/ legal system remains. Casual or small and Trivial deviances

while remaining part of the social order does not take away the cloak of personality, that allows one to

remain person. Out laws, terrorists and naxals do not retain personality. Forces of law can kill these with

impunity. Provided these are so killed before they raise hand indicating surrender to process of law. If

bullet hits them prior to surrender, forces are rewarded; if bullet hits after hands are raised for surrender,

clock of personality covers them faster than bullets; if bullet hits after hands are raised, it is manslaughter.

CONCLUSION

The main characteristic of the concept of rule of law is 'equality'. One of the threats to the Rule of Law

is the indeterminacy problem that the critical legal theorists highlight. Their argument is that every law

has gaps that judges and administrators must fill in during interpretation and implementation in specific

fact scenarios. The law is almost never completely clear and determinate, and when judges and

administrators interpret and implement that law, they are influenced by their personal choices, making

the Rule of Law merely the rule of men. This criticism, while it appears grave, has been tackled in theory

and practice. As Aristotle pointed out thousands of years ago, judges need to use reason to ensure that

their personal choices do not come in the way of correct decision-making. The modern legal system

makes an effort to reduce the impact of these personal choices through various procedural safeguards

such as public hearings, requirement of written and reasoned orders and the need to follow principles of

natural justice. While the influence of personal choices can never be ruled out completely, the

requirement of applying legal reasoning and certain procedures does reduce the possibility of personal

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prejudices significantly. As discussed earlier, the Rule of Law can never rule out the involvement of men;

by its very nature, it is the Rule of Law and men. One needs to reduce the influence of passion and

promote reason in all decision-making. The Rule of Law only demands that society is not subject to

tyranny because of the arbitrary personal choices of men. As long as systems claiming to comply with

the Rule of Law implement measures to reduce this arbitrary exercise of power, the indeterminacy issue

can be tackled.

The political mobilisation by most political parties in India is on the basis of caste, and other sectarian

basis, and is a direct challenge to the spirit of the Rule of Law embodied in the Constitution. It may be

acceptable to claim that despite efforts the constitutional goals of substantive equality and fraternity based

on a casteless society have not been achieved because of the long historical legacy and sustaining power

of caste. It is deplorable, however, for political parties to actively use caste and religion as the basis of

political mobilisation, as it directly undermines the Rule of Law.

The mushrooming of religion and caste-based parties over the last few decades and their success in

different parts of the country reflect that the political understanding, if any, of the Rule of Law is at times

in direct conflict with constitutional values. This also very often translates into governance, laws and

regulations and causes enormous strain on society.

This essentially translates into a central role for the political class directly in the form of political parties,

and indirectly through the government apparatus, which is influenced by the political class. The political

class’s poor awareness of the Rule of Law therefore not only has long-term implications for society but

also causes regular stress in the functioning of the government. Bureaucrats regularly complain of

unnecessary political interference in their day-to-day decision making. The problem is magnified in a

government apparatus such as the police, which have a citizen facing role and are the most susceptible

to political interference.27 In practice, the political leadership has not really challenged the understanding

of the Rule of Law as laid down by the Constitution and interpreted by the judiciary, except perhaps in

the initial decade after independence. The political class uses the Rule of Law as a convenient rhetorical

phrase without wholly understanding, or desiring to understand, the concept. A prominent leader of a

major party once mentioned that most members of Parliament see the Constitution for the first time when

they enter the Parliament and take oath on the Constitution. The majority of the political class is ignorant

of the basic principles of the Constitution and the important laws of the country.

27 Prakash Singh v. Union of India, (2006) 8 SCC 1

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