SEPERATION OF POWER :
RULE OF LAW –
The rule of law plays an important role in the administration of the country. It provides protection to the people against the arbitrary action of the administrative authorities.
The expression “Rule of Law” has been derived from the French phrase “Las principle de legality” a government based on the principles of law. In simple words the term rule of law indicates the states of affairs in a country where, Rule of law also known as monocracy is the legal principle that law should govern a nation and not individual government official. It primarily refers to the influence and authority of law with in society particularly as a constraint upon behavior including behavior of government officials. The phrase can be traced back to the 16th century and it was popularized in the 19th century by the British jurist A.V Dicey. Rule of law implies that every citizen is subject to the law including law makers themselves. It stands in contrast to the idea that the ruler is above the law. The constitution of India declares that we are a democratic, secular and socialist Republic. The rule of law governs our country. Equality before law and equal protection of law are the most fundamental right conferred on its citizen. We have a lengthy constitution Independence of judiciary and highly qualified bureau crates are the need of the hour.
Rule of law contains 3 principles –
1) Supremacy of law
2) Equality before law
3) Pre-dominance of legal spirit.
The doctrine of Rule of Law adopted in Indian constitution. The ideal of the constitution justice, liberty and equality are embodied in the preamble.
The constitution of India made the supremacy of Law of the country and other laws are required to be in conformity with the constitution. Any law which of the constitution is declared valid.
In India the meaning of Rule of Law has been much expanded. It is regarded as a part of the basic structure of the constitution and there for it cannot be abrogated or destroyed even by parliament it is also regarded as a part of natural justice.
Rule of law has been originated by sir Edward Coke. He expressed the view that the king must be under God and law. It was originated with the object to exclude the arbitrary authority of the government and to protect the individuals from unlawful action of government. Later in this concept was developed and established by A.V Dicey. According to Dicey Rule of Law has 3 meaning.
1) Rule of law is that no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the law. Thus Rule of Law, according to Dicey, means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness of prerogative or even of the wide discretionary authority on the part of the government. It implies that a man may be punished for a breach of law but he cannot be punished for anything else. No man can be punished except for a breach of Law. An alleged offence is required to be proved before the ordinary courts in accordance with the ordinary procedure.
2) No man is above the law is that no man is above law. Every man whatever be his rank or condition is subject to the ordinary tribunals. Thus rule of law in this sense, means equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law court. Rule of Law, thus, excludes the idea of any exemption to officials or other from the duty or obedience to the law which governs other citizens or from the jurisdiction or the ordinary tribunals.
3) Rule of law is that the general principles of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the court.
The view of Dicey as to meaning of the Rule of Law has been the subject of much criticism. The whole criticism may be summed up as follows:
Dicey has opposed the system of providing the discretionary power to the administration. In his opinion providing the discretionary power means creating the room for arbitress which may create a serious threat to individual freedoms.
Now a day it has been clear that providing the discretion to the administration is inevitable. The present trend is the establishment of welfare state which performs numerous function including economic and social function. The function of the state is not confined to maintenance of army, maintenance of law and order and collection of taxes. Now days it carries on commerce and business.
Dicey has failed to distinguish discretionary power from the arbitrary powers. Arbitrary power may be taken as against the concept of rule of law but the discretionary power with proper guidelines is not against the concept of rule of law. In modern times in all countries including England, America and India the discretionary powers are conferred on the government it providing the discretionary power are conferred in the government, it providing the discretionary power to the administration or government is taken against the concept of rule of law, the rule of law is not in existence in any country including England.
According to Dicey, the rule of law required that every person should be subject to the country. Every person, whether rich or poor, irrespective of state or rank must ne subject to the same body of law and same court of the country. Dicey has claimed that there is no separate law and separate court for the trial of government servant in England.
According to Dicey the rule of law require equal subjection of all persons to the ordinary law of the country and absence of special privilages for any person including the administrative authority. In the opinion of Dicey the rule of law excludes the idea of any exemption of officials or other from the duty of obedience to the law which govern other citizens or from the jurisdiction of the ordinary courts. This proposition of Dicey does not appear to be correct even in England. Several persons enjoy same privileges and immunities.
Third meaning given to the rule of law by Dicey that the constitution is the result of judicial decisions determining the right of private persons in particular cases brought before the court is based on the peculiar charter of the constitution of Britain. Constitution of Britain is unwritten and contains the principles involved through judicial decision. The meaning of rule of law does not hold good in India, USA etc.
The definition of rule of law by Dicey he must be praised for drawing the attention of the scholars and authorities towards the need of controlling the discretionary powers of the administration. He developed a philosophy to control the government and its officers and to keep them within their powers. The rule of law established by him required that every action of the administration must be backed by law and must have been in accordance with law. The rule of Dicey in the development of the concept of fair justice cannot be denied.
INDIA:
BEFORE INDEPENDENCE –
During British period especially during the company government in India the rule of law was given lesser importance. The company was interested in the expansion of its trade and territorial possession and it was in favor of protecting its interest. Even at the cost of justice. It gave lesser importance to the judicial Independence, Fair justice and rule of law. The voice of the judicial independence and rule of law was suppressed without least hesitation.
In 1694, the company directed the member of the council to serve succession as the judge advocate and ultimately the court of admiralty in Madras was replaced by the governor and council.
In Bombay, Nicolle’s attempted to establish rule of law and judicial independence but his voice therefore was treated as insubordinate and insolvent behavior and he was dismissed from his office. The court of judicature attached the lands of Robert Fisher. The Bombay council directed the judge of the judicature Nicolle’s to remove the attachment but he denied to follow the direction on the ground that it was against the oath taken by him. Then after he suspended for his quarrel with the Bombay council and the quarrel was the result of his step to establish judicial independence and rule of law. Then after Dr. John the judge Advocate of the admiralty court of Bombay established under the charter of 1683. At that time child was the Governor of Bombay. He had no respect for the judicial independence and rule of law. A conflict between Dr. John and the Bombay council arose under the issue whether or not the Bombay council was empowered to hear appeal from the admiralty court. Dr. John was of the firm view that the Bombay council had no such power under the charter of 1683. The voice of Dr. John for judicial independence and rule of law was taken as insubordinate and insolent behavior and he was dismissed in 1687.
In 1726, the mayor’s courts were established in each of the presidency towns under the charter of 1726. The appointment of the judges was not in the hands of the executive. However, the Alderman could be dismissed by the governor and council. With the limited power the mayor’s court started their career with a spirit of judicial independence and rule of law which resulted in a conflict between the mayor’s courts and the governor and council.
The Governor and council always interfered with judicial function of the mayor’s courts by issuing direction to them to proceed in a particular case in a particular manner. When the mayors courts took their direction as the isolation of their judicial powers and function and void them, the governor and council were annoyed and made every attempt to lower down the judiciary in the public eyes and to punish its judges. The result of the conflict was that a new charter called 1753 was issued. By charter of 1753 the power of appointment of judges of the mayors courts was rested in the governor and council and again the judiciary was made subservient to the executive.
Attempt of the chief justice of the Supreme Court of Calcutta established under the charter of 1774. Mr. Impey to established rule of law in India was also frustrated by the governor general and council and the companies authorities.
During the British crown, rule in India certain attempts were made for the establishment and maintenance of the rule of law and sound administration. The Indian High Courts Act was passed in 1861, with the object to authorize the British crown for the establishment of the High Courts ion crown for the establishment of the High Courts in the Presidency Towns. The High Court was given wide jurisdiction. The Law commissions were appointed for the purpose of law reforms. The law commissions played important role in the modernization of the Indian Laws. They made several inquiries and submitted several reports and proposed drafts of several laws.
Thus during the British Crowns rule the position as to rule of law improved much as compared to the position. Thereof during the East India Company’s rule in India but even during the crown’s rule in India the position on to the rule of law was not satisfactory. The Rule of Law was not given as much importance as it ought to be given.
AFTER INDEPENDENCE –
In India the meaning of rule of law has been much expanded. It is regarded as a part of the basic structure of the constitution and therefore, it cannot be abrogated or destroyed even by parliament. It is also regarded as a part of natural justice. The concept rule of law prevails; it is the law that rules even through the instrumentality of man. Arbitrary action is complete anti-thesis of the of law. Every organs of the state under the constitution of India ir regulated and controlled by the rule of law. Absence of arbitrary power has been held to be the first e3ssential of rule of law. The rule of law requires that the discretion conferred upon executive authorities must be contained within clearly define limits. Free legal aid for poor and speedytrial in criminal cases has been held to be necessary adjuncts to the rule of law.
Now a day’s public interest litigation is considered as one of the necessary corollaries of rule of law. Various provisions have been incorporated in the constitution of India for the establishment and maintenance of rule of law in India.
The preamble of the constitution of India seeks to secure, economic and political justice equality of status and opportunity and Definity, Fraternity and Dignity of the individual. To attain these objectives various provison have been incorporated in the Indian constitution. Part III of the constitution of Infia guarantees the fundamental rights.
Article 13(1) of the constitution makes it clear that all laws in force in the territory of India immediately before the commencement of the constitution, in so far as they are inconsistent with the provision of Part III dealing with the fundamental rights, shall to the extent of such inconsistency be void.
Article 14 of the constitution of India provides for equality before law or the equal protection of the laws. According to Article 14, the state shall not deny to any person equality before the law or equal protection of the laws. According to Article 14, the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India.
Article 20(1) provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charges as an offence except for violation of a law in force at the time of the commission of the act charged as an
INDEPENDENCE OF JUDICIARY –
Independent judiciary is necessary for maintaining rule of law and fair judicial administration in the country. Independent judiciary plays an important role in controlling the arbitrary act of the administration. If the arbitrary act of the administration causes injury to any person, it provides relief to them. Often independent judiciary is made guardian of the constitution and enforce the rule of law. Every person whether rich or poor is considered equal before law, and any person who violates law is punished by the court. For this purpose of the judiciary is required to be independent because if it is not independent and is in the control of the executive violates the law. Besides it is the rule of fair justice the justice and only justice be done, but it should appear to the people that justice has been done. If the dispute are decided by the independent judiciary, people are satisfied that justice has been done with them and consequently no dissatisfaction would prevail among the people.
For the establishment of independence judiciary appointments and removal of the judges should not be in the hands of the executive and if the power of appointment and removal thereof is vested in any executive authority there must be due safeguard so that if may not be misused so as to affect the fairness. For maintaining the judicial independence tole of executive should be passive and formal.
BEFORE INDEPENDENCE –
During British period specially during the East India Company rule in India. The judiciary was subservient to the executive. The company gave lesser importance to the judicial independence. Fair justice and rule of law, it was interested in the expansion of its trade and territorial was under the control of the executive. The agent GIC of a factory of East India Company had both executive and judicial powers. The company established its First factory at Surat in 1612 and 1615 Englishman were allowed by the Mughal Emperor to live out of their own customs. Traditions and law and the dispute among the Englishmen in these were to be decided by the president of the factory. Thus the president and council of the factory. Thus the president and the council of the factory the executive, were conferred on the judicial power also after Indian Independence.
Even under the existing constitution of India, the doctrine of separate of powers has not been followed strictly. The president of India the real executive power has been vested in the council of ministers with the Prime Miniter at the head. The President is to exercise his power and discharge his function with the aid and advice of the council of ministers with the Prime Minister at the head and usually the advice is binding on him. The president is a part of parliament and also of the central executive. The President can promulgate ordinance during recess of parliament. The house of people can be dissolved by the president. The president may address either House of Parliament or both houses assembled together. A bill becomes an act only when the president give his as seal to it. Certain bill cannot be introduced in Parliament, unless recommendation of the President has been received.
Eg.-
Money bill & amendment the formation of new states or alter rule of areas & boundaries. Article 274 prior reconciliation of President is required.
Article 117(3) a bill which if enacted brought into operate would involve expenditure from the consolidate fund.
JUDICAIL ACTIVISM AND SEPERATION OF POWER THEORY –
The Supreme Court has been made the guardian and protector of the constitution. The constitution has assigns it the role to ensure rule of law including the supremacy of law in the country. In a case the Supreme Court has held that under Article 32, the Supreme Court and under Article 226 the High Court may issue direct to the executive and the legislature to discharge their obligatory duties.
Judicial activism may taken to mean the movement of the judiciary to probe in to the inner functioning of the other organs of the government ( Executive and Lagislature). The judicial activism is the result of inactiveness on the part of the legislature to make law and of the executive to implement the law nut both the organs have failed to discharge their function satisfactorily. In such circumstances it is not the power but duty of the court to uphold the constitution and compel the other organs of the government to discharge their function properly. The Supreme Court being the guardian of the constitution cannot remain a silent spectator it can direct the legislature and executive t discharge the function assigned to them by the constitution.
The main object is to maintain the rule of law in the country. The rule of law requires each organs of the government to perform the functions assigned to it by the constitutions. If the legislature does not make the required law and the executive does not execute the law does not arrest the law breaker and does not collect the evidence against them, there will be complete death of the rule of law which is necessary for the very existence of the society. The court cannot be and should not be a party to it as is the guardian of the constitution protector of the rule of law in the country.
Article 13,32.141 and 142 are considerable important in judicial activity. Article 32 makes the Supreme Court as the protector and guarantor of the fundamental rights. The Supreme Court has been conferred wide power of judicial review. In the exercise of the judicial power it can examine the constitutionality of the executive and legislative act. The High Court has also been conferred the power of judicial review. Thus the Supreme Court and High Court both can examine the act of the executive and legislative and can declare it void if found in contravention of the constitution provisions.
An important issue is whether the judicial system is against the doctrine of separation of power. In this respect it is to be noticed that the constitution and therefore it can direct the legislative and executive discharge their functions properly. It is the function of legislative to enact law and the executive to implement the law, and if they do not perform their function properly, it is not the power but the duty of Supreme Court to compel them to discharge their function properly.
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