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    BlogDoctrine of Rule of law and Separation of Power

    Doctrine of Rule of law and Separation of Power

    This article is written by Paras Bahuguna. He is a Legal Researcher at Legal Thirst.

    Introduction

    The concept of the Rule of Law is the supremacy of law and the doctrine of separation of powers establish that there should be different heads or organs of the government; each acting independently of the other so that the law of the state could be enforced properly and the true spirit of the law gets reflected in its enforcement.

    Rule of Law:-

    Concept of Rule of Law

     The originator of the concept of rule of law was Sir Edward Coke the chief justice James I Reign. The concept of rule of law is of old origin. The term ‘rule of law’ originated in England and has taken this concept. Greek philosophers such as Plato and Aristotle discussed the concept of rule of law around 350 BC.

     The derivation of the phrase ‘Rule of Law’ is from the French phrase ‘la principle de legalite’ which implies the principle of legality. This phrase refers to a government based on principles of law and not on men. One of the basic principles of the constitution is rule of law and this concept is up to standard in both Indian and American constitutions. The doctrine of rule of law is the entire basis of Administrative Law.

     Meaning of Rule of Law

     To understand the meaning of rule of law, it means that no man is above law and also that every person is subject to the jurisdiction of ordinary courts of law irrespective of their position and rank.

    The concept of rule of law further requires that no person should be subjected to harsh or arbitrary treatment. The word ‘law’ in rule of law means that whether he is a man or a society, he must not be governed by a man or ruler but by law. In other words, as per Article 13 of the Indian Constitution rule of the land.

    According to Black’s Law Dictionary: “Rule of law” means legal principles of day-to-day application, approved by the governing bodies or authorities and expressed in the form of a logical proposition.

    According to Oxford Advance Learner’s Dictionary: “Rule of law” means the situation in which all the citizens as well as the state are ruled by the law.

    In 1885, Professor A.V Dicey developed this concept of coke and propounded three principles or postulates of the rule of law in his classic book ‘Law and the constitution.’ According to Professor A.V Dicey, for achieving supremacy of law three principles of postulates must be followed which are as follows:

    • Supremacy of law,
    • Equality before the law and
    • Judge-made Constitution

    Supremacy of law

    Rule of law according to Dicey means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or wide discretionary power.

    It means the exclusion of the existence of arbitrariness on part of the government.

    This in essence means that no man can be arrested, punished or be lawfully made to suffer in body or in goods except by the due process of law and for breach of a law established in the ordinary legal manner before the ordinary courts of the land.

    Equality before law

    While explaining this aspect of the doctrine, Dicey stated that there must be equality before the law or equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.

    Dicey believed that the exemption of civil servants from the jurisdiction of the ordinary courts of law and providing them with special tribunals was the negation of equality.

    He stated that any encroachments on the jurisdiction of the courts and any restriction on the subject’s unimpeded access to them are bound to jeopardise his rights.

    Judge–made the constitution

    Dicey observed that in many countries rights such as the right to personal liberty, freedom from arrest, freedom to hold public meetings, etc. are guaranteed by a written constitution; in England, it is not so.

    In England, those rights are the result of judicial decisions in concrete cases that have actually arisen between the parties.

    Thus he emphasized the role of the courts of law as guarantors of liberty and suggested that the rights would be secured more adequately if they were enforceable in the courts of law than by mere declaration of those rights in a document.    

    Rule of Law: UNITED KINGDOM

    As Lord Tom Bingham opines, the concept of the Rule of Law was adhered to in the United Kingdom for the most part of it. And the very reason for it could be said that the concept of the Rule of Law has natively originated within the United Kingdom over the centuries to overcome tyrannies and oppression. Given the absence of a written constitution, people often confused Parliamentary Sovereignty as the ultimate authority to lay down the function and substance of the constitution of the U.K. People dubiously recognize the sovereignty of the U.K. to be the law as enacted by the queen in parliament. But it does have to observe certain inherent principles as set out by the common law system and its historical commitment to the notion of constitutionalism. Therefore, concluding that parliamentary sovereignty is absolute power would be a mere exaggeration.

    Role of the Judiciary in upholding the values of the Rule of Law

     The very values behind of Rule of Law came to be formed given the differences that arose between those who were being ruled and the ones who ruled. This situation entails the entry of some neutral third party that could strike a balance between the differences that arose between them thus, the role of the judiciary as a neutral person was required to keep a check upon the exercise of discretionary and arbitrary power and to uphold individual liberties. The role of the judiciary has governed massively over time and courts started to be the guardians of fundamental rights thereby, keeping alive the values of the Rule of Law. Dicey also favours emphasizing the role of the judiciary in safeguarding the merits of the Rule of Law by protecting the liberties and rights of the people by interpreting the statutes in such a way as to prevent any transgression on the part of the parliament onto liberties of people. This task by the judiciary ultimately helps to maintain the balance between Parliamentary  Sovereignty and the Rule of law simultaneously enlarging the scope of people’s personal autonomy.

    The significance of the Rule of Law is visible in the recent decisions of the House of Lords and the Supreme Court. The decision in Council of Civil Service Unions v. Minister for the Service signifies the capacity of the courts to take cognizance of the prerogative powers within its power of judicial review. Thus, empowering the judiciary to adjudicate with respect to the matter of prerogative powers lest they are exercised arbitrarily.

    In Walumba Lumba v. Secretary of the state for the Home Department, where the Supreme Court came to the finding that it is unlawful for the Minister to apply the policy differently from what it actually was. Thus, upholding the equal and unbiased application of legal rules and policies.

    In Her Majesty’s Treasury v. Mohammed Jabar Ahmed and Others, the finding, in this case, signifies the need for judicial control to uphold the rule of law. In the words of Lord Hope: “If the rule of law is to mean anything, decisions as to what is necessary or expedient in this context cannot be left to the uncontrolled judgment of the executive. Conferring an unlimited discretion on the executive as to make those resolutions, which it has hand in making, is to be implemented seems to me be wholly unacceptable. It conflicts with the basic rules that lie at the heart of democracy”.

    Rule of Law under the Indian Constitution

    The Preamble of the Constitution itself prescribes the ideas of Justice, Liberty and Equality. These concepts are further enunciated in Part III of the constitution and are made enforceable. All three branches of the government are subordinate i.e. the Judiciary, Legislature and Executive are not only subordinate to the constitution but are bound to act according to the provisions of the Constitution. The doctrine of Judicial review is embodied in the Constitution and the subjects can approach the High Court and the Supreme Court for the enforcement of fundamental rights. 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.

    Role of Indian Judiciary

    A few cases where the concept of rule of law was discussed came to light. Some of the cases are as follows:

    ADM Jabalpur v. Shivkant Shukla

    This case is also known as the “Habeas Corpus case”. It is one of the most important cases when comes to rule of law. The question that was raised before the hon’ble court was whether there was any rule of law in India apart from Article 21 of the Indian Constitution. It was in a context relating to the proclamation of emergency where the enforcement of Articles 14, 21 and 22 was suspended.

    Keshvananda Bharti v. State of Kerala

    In this case, the Supreme Court enunciated the concept of rule of law as one of the most important aspects of the doctrine of basic structure.

    Maneka Gandhi v. Union of India

    In this case, Supreme Court declared that Article 14 strikes arbitrariness.

    Exceptions of Rule of Law

    • ‘Equality of Law’ does not mean that the powers of private citizens are the same as the powers of public officials. For e.g. a police officer has the power to arrest which a private citizen does not have.
    • The rule of law does not prevent certain classes of persons from being subject to special rules, e.g. the armed forces are governed by military laws.
    • Ministers and other executive bodies are given wide discretionary powers by the statute.
    • Certain members of society are governed by special rules in their professions like lawyers, doctors and nurses.

                                                                                                                      sSeparation of Power:-

    The concept/Background

    This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein he described the three agencies of the government as the General Assembly, Public Officials and Judiciary. In the Ancient Roman Republic too, a similar concept was followed. In modern times, it was 18th-century French philosopher Montesquieu who made the doctrine a highly systematic and scientific one, in his book De l’esprit des lois (The Spirit of Laws). His work is based on an understanding of the English system which was showing a propensity towards a greater distinction between the three organs of government. The idea was developed further by John Locke.

    Meaning of Separation of Powers

    Separation of powers divides the mechanism of governance into three branches i.e. Legislature, the Executive and the Judiciary. The definition of separation of power is given by different authors. But in general, the meaning of separation of power can be categorized into three features:

    • A person forming a part of one organ should not form part of another organ.
    • One organ should not interfere with the functioning of the other organs.
    • One organ should not exercise the function belonging to another organ.

    Separation of powers in Other Countries

    Separation of power has been accepted and adopted across the globe. The United States has one of the most initially established versions of this doctrine, which finds its origin in its constitution. The theory of separation of powers in various aspects has been included in certain other constitutions around the world. The Australian Constitution favours the devolution of legislative functions to the executive rather than judicial institutions. This idea is also believed to be the foundation of the Sri Lankan Constitution. France is another country where this doctrine has an effect, and this doctrine flows out of the French Constitution. The United Kingdom too has a separation of powers concept on an informal note.

    United States

    The concept of separation of powers is quite specifically stated in US Constitution. It gives Congress, which consists of the Senate and the House of Representatives, Legislative authority. The president has executive authority, and the Supreme Court and any further Federal Courts that Congress may establish have judicial authority. The Constitution specifically outlines the President’s powers, and he is elected in a separate election for a fixed term of four years. He is tasked by the constitution with ensuring that the country’s laws are faithfully carried out. The president has the authority to nominate and dismiss the executive officers known as the Cabinet, who are in charge of the major state departments. This is done to maintain the separation between the executive and legislative branches of government. Neither the president nor any of his secretaries may be members of the Congress, and any member of the Congress may join the government only after resigning from the membership. The President is normally irremovable from office, but the Senate has the power to remove him through the process of impeachment if he commits high crimes and misdemeanours such as bribery or treason.

    The Supreme Court’s authority was created in Marbury v. Madison in 1803 when it ruled that the President’s acts and the Acts of the Legislature were both in violation of the Constitution. The Supreme Court also found that any significant delegation of legislative authority by congress to executive agencies was in violation of the Constitution’s tenet of the separation of powers.

    Separation of Powers in India

    Under the Indian Constitution:

    • Legislature- Parliament (Lok Sabha and Rajya Sabha), State legislative bodies
    • Executive- At the central level- President, At the state level- Governor
    • Judiciary- Supreme Court, High court and all other subordinate courts

    Some of the Articles of the Constitution:

    Article 50: separation of judiciary from the executive, this article suggests that the state shall takes steps to separate the judiciary from the executive in the public services of the state.

    Article 123: the President, being the executive head of the country, is empowered to exercise legislative powers (promulgate ordinances) under certain conditions.

    Articles 121 and 211: these provide that the legislatures cannot discuss the conduct of a judge of the Supreme Court or High Court. They can do this only in case of impeachment.

    Article 361: the president and governors enjoy immunity from court proceedings.

    There is a system of checks and balances wherein the various organs impose checks on one another by certain provisions.

    • The judiciary has the power to strike down any law passed by the legislature if it is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).
    • Although the judiciary is independent, the judges are appointed by the executive.

    Some leading cases:-

    Kesavananda Bharti v. State of Kerala: In this case, the SC held that the amending power of the Parliament is subject to the basic features of the Constitution. So, any amendment violating the basic features will be declared unconstitutional.

    I.R. Coelho v. State of Tamil Nadu: the supreme court held that the doctrine of basic structure as propounded in the above-mentioned case and the ninth schedule grant blanket protection to certain legislations from the judicial review is violative of this doctrine.

    Indira Nehru Gandhi v. Raj Narain: where the dispute regarding the Prime Minister’s election was pending before the Supreme Court, it was held that adjudication of a specific dispute is a judicial function that parliament, even under constitutional amending power, cannot exercise.

    So, the main ground on which the amendment was held ultra virus was that when the constituent body declared that the election of Prime Minister wouldn’t be void, it discharged a judicial function that according to the principle of separation it shouldn’t have done. The place of this doctrine in the Indian context was made a bit clearer after this judgement.

    CONCLUSION:-

     On a brief overview of the constitutional provisions and judicial decisions, it can be safely concluded that the Indian Constitution enshrines the rule of law as a fundamental governance principle, though the term is not mentioned expressly in the text of the Constitution. It is the present-day modernized name for natural law. Hence, one can see that although there is a separation of powers between the three organs of the government they are not totally independent and still mutual dependency on each other prevails in all the forms of the government. This happens through the process of checks and balances.

    References:-

    • https://byjus.com/free-ias-prep/separation-power-indian-constitution
    • https://www.lawctopus.com/academike/doctrine-of-separation-of-power/
    • https://blog.ipleaders.in
    • https://primelegal.in
    • http://www.legalserviceindia.com/legal/article-3136-separation-of-power-and-indianconstitutionhtml

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