Constitutional Law I Unit 1 Constitutional Law Complete Notes Rule of Law

Rule of Law

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TOPIC- Rule of Law

Adjustment of law to the social needs is a continuing process. Law must always be responsive to the social development. This continuing process requires watchful legislature and alert judiciary.

However, certain care and caution regarding the adjustment of law to social change should be observed. “The increasing use of device of legislation in modem societies and the general orientation of nearly all start and elites in favor of change and popular elections in democratic countries as also the decreasingly conservative attitudes of the lawmen including judges, provide rather simple ways of adjusting the law to social change.

The problem today, as one writer sees it, is not as much of preventing lag of law behind social needs and development as of preserving legal security which is endangered by rapid changes in the law. “This is the interesting problem of the lag of society after changes in the law, which is a more novel problem, both from the theoretical and the practical point of view”.

“The problem one has to grapple with today appears to be one arising out of the tension between the ideology of rule of law and the need for recognition of law as a means of social action.

Law shapes various social institutions, which in turn have direct impact on society, i.e., compulsory education system, prohibition of polygamy etc. It has indirect impact on social change as where a new patent law calls forth inventions and further changes in technological institutions. Law may set up new public bodies and an authority, which is turn bring about significant social and economic changes”

The guarantee of equality before the law is an aspect of what Dicey calls the rule of law in England. It means that no man is above the law and that every person, whatever be his rank. Dicey gave three meanings of the Rule of Law those are: 1) Absence of Arbitrary power or Supremacy of the, 2) Equality before the law, and, 3) The Constitution is the result of the ordinary law of the land.

The first and the second aspects apply to Indian system but the third aspect of the Dicey’s rule of law does not apply to Indian system as the source of rights of individuals is the Constitution of India. The rule of law imposes a duty upon the State to take special measure to prevent and punish brutality by police methodology to a federal Government. The supreme Constitution is essential if The Indian Constitution possesses all the essential characteristics of a federal Constitution.

The Constitution establishes a dual polity, a system of double Government with the Central Government at one level and the State Government at the other. There is a division of powers between the central and the State Government

Rule of Law under Constitution of India:

Dicey’s rule of law has been adopted and incorporated in the Constitution of India. The Preamble itself enunciates the ideals of Justice, Liberty and Equality. In part III of the Constitution these concepts are enshrined as Fundamental Rights and are made enforceable. The Constitution is supreme and all the three organs of the Government, namely, Legislature, Executive and Judiciary are subordinate to and have to act in consonance with the Constitution.

The doctrine of judicial review is embodied in the Constitution and the subjects can approach High Courts and the Supreme Court for the enforcement of Fundamental Rights guaranteed under the Constitution. If the executive or the Government abuses the power vested in it or if the action is mala fide, the same can be quashed by the ordinary courts of law.
Modern concept of Rule law:

Davis has given seven principal meanings of the term ‘Rule of Law’ :-(1) Law and order; (2) Fixed rules; (3) Elimination of discretion; (4) Due process of law or fairness; (5) Natural law or observance of the principles of natural justice; (6) Preference for judges and ordinary courts of law to executive authorities and administrative tribunals; and (7) Judicial review of administrative actions.

Separation of Powers:

(a) Meaning:

It is generally accepted that there are three main categories of governmental functions—(i) Legislative, (ii) Executive, and (iii) Judiciary. According to the theory of separation of powers, these three powers and functions of the Government must, in a free democracy, always be kept separate and be exercised by three separate organs of the government. Thus, the Legislature cannot exercise executive or judicial power; the Executive cannot exercise legislative or judicial power and the Judiciary cannot exercise legislative or executive power of the Government.

(b) Historical Background:

The doctrine of separation of powers has emerged in several forms at different periods. Its origin is traceable to Plato and Aristotle. In the 16th and 17th centuries, French philosopher John Bodin and British politician Locke expressed their views about the theory of separation of powers. But it was Montesquieu who for the first time formulated this doctrine systematically, scientifically and clearly in his book ‘Esprit des Lois’ (The Spirit of the Laws), published in the year 1748.

(c) Montesquieu Doctrine:

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty if the judicial power be not separated from the legislative and the executive. Where it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Where it joined with the executive power, the judge might behave with violence and oppression.

Miserable indeed would be the case, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions and that of judging the crimes or differences of individuals.”

(d) Effect of the Doctrine:

The doctrine of separation of powers as propounded by Montesquieu had tremendous impact on the development of administrative law and functioning of Governments. It was appreciated by English and American jurists and accepted by politicians.

(e) Importance of the Doctrine:

On the whole, the doctrine of Separation of powers in the strict sense is undesirable and impracticable and, therefore, it is not fully accepted in any country. Nevertheless, its value lies in the emphasis on those checks and balances which are necessary to prevent an abuse of enormous powers of the executive. The object of the doctrine is to have “a Government of law rather than of official will or whim”.

Montesquieu great point was that if the total power of Government is divided among autonomous organs, one will act as a check upon the other and in the check liberty can survive. Again almost all the jurists accept one feature of this doctrine that the judiciary must be independent of and separate from the remaining two organs of the Government, viz., Legislature and Executive.

The most important aspect of the doctrine of separation of powers is judicial independence from administrative discretion. “There is no liberty, if the judicial power be not separated from the legislative and executive.” The judiciary is beyond comparison the weakest of the three departments of power.

It has no influence over either the sword or the purse; no direction either of the strength or of the wealth of society and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment. There is no liberty, if the judicial power be not separated from the legislative and the executive.

Constituttional Law Unit 1 Constitutional Law Complete Notes Rule of Law

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