The Rule Of Law: The Concept Of The Rule Of Law

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The term ‘Rule of law’ is derived from the French phrase “la principe de legalite” (the principle of legality) which refers to a government based on principles of law and not of men. In this sense the concept of ‘la principe de legalite was opposed to arbitrary powers.
The concept of rule of law is of old origin. Edward coke is said to be the originator of this concept. When he said that the king must be under god and law and thus vindicated the supremacy of law over the pretensions of the executives. Professor A.V. Dicey later developed on this concept in the course of his lecture at the Oxford University. Dicey was an individualist; he wrote about the concept of the rule of law at the end of the golden Victorian era of laissez-faire.
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The courts would not invalidate any positive law on ground that it violates the contents of the Rule of Law. However, in A.D.M Jabalpur v. Shivakant Shukla . Popularly known as Habeas Corpus case, an attempt was made to challenge the detention orders during the Emergency on the ground that it violates the principles of the Rule of law as the “obligation to act in accordance with rule of law….. is a central feature of our constitution system and is a basic feature of the constitution”. Though the contention did not succeed and some justice even went on to suggest that during on emergency the emergency provisions themselves constitute the Rule of Law, yet if the reasoning of all the five opinions is closely read it becomes clear that the contention was accepted, no matter it did not reflect in the final order passed by the court. Therefore, even in spite of the unfortunate order to the effect that the doors of the court during an emergency are completely shut for the detenus, it is gratifying to note that the concept of Rule of Law can be used as a legal concept.
In the opinion of some of the judges constituting the majority in Kesavananda Bharati v. State of Kerala , the Rule of Law was consider as an “aspect of the doctrine of basic structure of the constitution which even the plenary power of parliament cannot reach to amend”
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Raj Narain, in which the Supreme Court invalidated clause (4) of Article 329-A, inserted in the Constitution by the Constitution (Thirty-nine Amendment) Act, 1975 to immunise the election dispute to the office of the prime minister from any kind of judicial review, Khanna and Chandrachud, JJ. Held that Article 329-A violated the concept of basic structure . Other justice though did not go to this extent but certainly held that article 329-A, clause (4) offends the concept of the Rule of Law. Ray, C.J. held that since the validation of the Prime Minister’s election was not applying any law, therefore it offended the Rule of Law . According to Mathew, J. Clause (4) of Article 329-A offended the Rule of Law which postulates the pervasiveness of the spirirt of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere . Referring to the same constitutional provision, Beg, J. observed that the jurisdiction of the Supreme Court to try a case on merits cannot be taken away without injury to the basic postulates of the Rule of Law and of Justice within a politically democratic constitutional structure. A study of keshavnand, Indira Gandhi, and other habeas corpus cases, “provides a distillation of judicial thought on the conception of the Rule of Law, which has evolved well over a quarter century. Reference ton western theories and thinkers from dicey onwards abound in these opinions; but these occur

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