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Rule of Law
by J.K. Tandon
(Retired Judge, Allahabad High Court), Chariman, Law Commission,
Uttar Pradesh
Cite as : (1970) 2 SCC (Jour) 13
Rule of Law which embodies the noble doctrine of supremacy of law is a living institution. As the society is advancing, it too is growing in dimensions. As has so often been emphasized, it essentially is a restraining force belonging to the realm of social ethics. Mere legality as understood by lawyer, is not enough but even broader notions of justice as distinct from positive legal rules are embraced by the doctrine. It is thus a basic and fundamental necessity for the emergence of a disciplined and organised community. It is the lifeline of any orderly government, still more of a democratic State. And indeed it is the very soul of a Republic as Ours. Though stated in these three words, the doctrine is most solemn and the foundation of everything cherished in any organised community. To a layman no doubt it may appear somewhat high and technical also but as shall be my effort hereafter I shall attempt to unfurl before you some of its notions. It will be proper if I did it in the context of our own political make-up.
While giving to ourselves the Constitution, we resolved to secure to the citizens of the land justice, liberty, equality of status and dignity of the individual. This solemn resolve — sacred to everyone whatever his place, status or authority under the Constitution — is itself founded on the same sacred and valued doctrine of jurisprudence which in one or the other shape permeates the whole social structure. No society can sustain itself without respect and obedience to this very important social necessity.
I should be guilty of arrogance if, within the short time that we are here, I dared to take you through its various attributes, etc. The doctrine embodies within it a dynamic and living necessity of an advancing society. Naturally therefore its reaction will differ from conditions and conditions and from circumstances and circumstances, including the political texture of the particular people. But whatever the political complexion, the essential feature, that is obedience to, what may be described in simple language as "superior authority", is vitally present. That superior authority is, as has been aptly described, "the law" or to be more specific "the supremacy of law". In every political thinking this component, that is, the supremacy of law is invariably found in one or the other form but as a vital part of it. In a democratic set-up, it is perhaps the most vital component which unites the members constituting the society and not only strengthens the bond of unity but also guarantees that the individual dignity shall not be sacrificed by any arbitrary or illegal behaviour of others. But for this doctrine the society will disintegrate and the law will cease to be law. Law is but the spirit of the people who, through its medium prescribe, in the interest of general welfare, norms of behaviour to bind them and each of them. These norms are 'law' in its wide sense. Only if one looked as these norms in their fulness, they are not restrictions on an individual alone because in restricting individual's actions they simultaneously restrict the behaviour qua the individual of the community too. The norms are, therefore, the law applicable not merely to the individual members but govern the exercise of the authority by the Community too to the same extent.
The recognition of the said component in the norms is really a reflection of the doctrine of the rule of law. The heart of the doctrine is that even those who wield power are themselves controlled in the exercise thereof by the restraints by which the law is conditioned. The collective authority is tolerated only subject to the restraints conditioning its exercise. To state in simple language and speaking in the context of governmental organs and State officials, the doctrine requires these institutions and authorities to be answerable before the appropriate authority, like any individual or body, for the acts done by them. Any breach or departure from the conditions placed on the exercise of the power is violative of rule of law. Any breach will not be countenanced by the society. And to this end the courts of the realm are the watch-dogs.
There are these other notions and truths, too, which follow from this doctrine. It is, if I may say so with some emphasis, the saviour of the sanctity of human life. Sometimes it is confusedly said that it impairs the individual freedom. Such an impression is due to incorrect and insufficient appreciation of the true import and the purpose of the doctrine. The truth is just the reverse. Individual liberty, and so the dignity, of the individual is secured and protected against the tyranny and abuse of power by those charged with its exercise by adherence actually to this solemn principle. The supremacy of law cannot be trespassed by any authority whatever its place or status, who, too, like the individual citizen, is equally bound by its observance. The rule of law does not, when broadly judged, restrain individual liberty. Because the individual by being a member of the community has dual existence, one as the individual as such and the other as a member of the society itself. It is in the totality, therefore, of his rights and obligations that he has to be judged. It would be wrong to confine attention to his individual existence alone. Whatever restrictions are inflicted on him in his individual capacity are, if looked in the context of his obligations as member of the community to which he owes his economic existence, are so many other rights. This is imperative in an interdependent world.
The existence of an independent judiciary and even the Bar, the right of a member to be heard by an authority free from bias and not involved in the act complained of, the right to reasoned decision including the right of appeal or revision on questions of law are some other manifestations of this doctrine. Indeed, the substantive content of law, the existence of a responsible Legislature and even respect for the individual legislative, judicial and administrative actions are some of the very basic notions interwoven in this doctrine. Another important aspect is that it assures minimal justness of laws and the rules, besides their responsiveness to the needs of social development.
The doctrine has sometimes been accused of discriminatory treatment, when not applying a uniform rule to all persons. In the process of meeting out substantial justice, persons differently placed require to be served according to the varied conditions existing around them. The law which does not take these varying conditions into account, is violative of the rule of law. As has often been said, "equity as a value constantly has to compete, adjust and combine with other values." If this were not so, serious conflicts would arise between the ethical convictions of the community and the use of power in that community. It could even impair the precepts inherent in the doctrine which in ultimate analysis means rule of just laws.
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