Abstract
In this paper, the “Rule of Law” forms one of the supreme manifestations in human civilization with eternal values of constitutionalism, attributed to democracy and good governance. Constitutional Law mandates through its provisions and fundamental obligations with the conception of equality before the law, social justice and liberty involve a sense of supremacy and predominance aspiring for the spirit of legality with provisions of fairness and reasonableness, respecting basic human rights irrespective of their status in society to access justice. This rule is one like a golden thread in the Constitution, which ensures the supremacy of law over society.
The dogma of the Rule of law symbolizes that the Law is supreme authority just like the provisions of the Constitution. Here are the important key points in this article about, equality before the law, the rule of law, natural law, liberty, and justice in our society through the rule of law. The judicial control had constitutional act within the scope, says about the rule of law by protecting its life through revolutionary decisions for restricting the abuse of legal powers for protecting our Indian society along with the arbitrary decision. The rule of law is therefore of ‘the voice of justice’ operating at all stages of constitutional provisions. This paper analyses the reasons for the lack of access and suggests reforms, which need to be ensured access to justice for the poor and marginalized population of the rural and tribal communities in Indian society. Access to justice in the Black’s law dictionary is “the ability within a society and other legal institutions effectively to protect one’s rights and pursue claims.” It considers a potential legal system acquiring appropriate legal remedies within the Civil and Criminal justice fields. The Judiciary, being an effective judicial system, has an important role in ensuring access to justice.
Introduction
The term “Rule of Law” has its privilege in depicting its standard meaning in our Indian Constitution framed on the popular notion, which is certainly recognized by two fundamental concepts (i) Supremacy of Law and (b) Equality before law. Today in India “Rule of Law” losing its grounds on the norms of Social order due to “the government of law” can rule the country, which is as called “the Government of a wise man” rule the country. Therefore, here the rule of law failed to achieve equality in India. As explained by author Massey in his book on “Administrative Law”-Rule of Law is one dynamic concept however, it does not mean that there is no agreement on the basic values. It consolidates the rules which are certainly based on the concept of freedom, equality, non-discrimination, and fraternity, which is certain, regular, and predictable.
Rule of law-Concepts
The concept of the Rule of law requires “the government should be subject to law, rather than the law subject to the government.” Therefore it could be regarded as the modern name of Natural Law. Here, in detail, the concept furnishes the foundation for a pragmatic system of governance, that shares the common English inheritance from the statement of generalities. The Prof. de-Smith explains its content that, “laws, as represented by Parliament, can be faithfully executed by officials, that orders of the courts should be obeyed; that individuals wishing to enforce the law should have appropriate reasonable access to the courts; that no other person should be condemned unheard, and that power should not be arbitrarily exercised.”
It has been regarded as a modern name of Natural Law. Jurisprudentially, the Romans called it 'Jus Naturale', mediaevalists called it the 'Law of God’, Hobbes, Locke, and Rousseau called it 'Social Contract' or 'Natural Law' and modern jurists call it 'Rule of Law'. The idea was developed from the French phrase 'la principal de legality, that is, a Government based on the principles of law and not of men. However, it was Edward Coke who said that the King must be under God and Law and thus afford justification from the supremacy of law over the claim of the executives. In India, the concept of the Rule of Law can be examined by the Upanishads where it providing that Law is about Kings of Kings. And it's from the legendary days of Adam and of Kautilya's Arthasastra -- the rule of law had this stamp of natural justice, which makes it social justice.
Access to Justice-Its concepts
The concept of ‘access to justice as an invaluable human right, also recognized in most constitutional democracies as a fundamental right, has its origin in common law as much as in the Magna Carta. The Magna Carta lays the foundation for the basic right of access to courts in the following words: “No freeman shall be taken or imprisoned or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land. The concept “Access to Justice” is mostly used in terms of the access to the particular formal institution of the legal system, either individuals in a particular civil or criminal case or a collective group of constitutional challenge”. Prof. M. Cappelletti Rabel a noted jurist in his book ‘Access to Justice’ (Volume I) explained the importance of access to justice that in the following words, “The right of effective access to justice has emerged with the new social rights. Indeed, it is of supreme importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights for their effective protection. Therefore, such protection, moreover, is the best assumable remedy within the framework of our judicial system. Effective access to justice can be seen as the most basic requirement that is to be the most ‘basic human right’ – of a system that purports to guarantee the legal right.
Rule of law and its Constitution
In Indian Constitution, the Rule of Law has been propounded under the Preamble where the paragon of justice, liberty, and equality are enshrined. The Constitution has been established with the supreme law of the country and other laws are required to be required within the meaning of our Indian Constitution. Nonetheless, the courts have the honors to declare any law invalid, which is found in the violation of any provision of the Constitution i.e. Part III of the Constitution of India guarantees the Fundamental Rights. The Article 13(l) of the Constitution marks it clear that all laws in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III dealing with the Fundamental Rights, shall, to the extent of such inconsistency, be void. Article 13(2) explains that the State should not make any law, which takes away or abridges fundamental rights, and any law made in contravention of this clause shall, to the extent of the contravention, be void. The Constitution guarantees equality before the law and equal protection of laws.
In Tamil Nadu Mercantile Bank Shareholders Welfare Association v. S.C. Sekar and Others (2009)2SCC 784,
The Court declared that an aggrieved person is left without the remedy and access to justice is a human right and in such situations, even a fundamental juristic content and basis of access to justice as a fundamental right is not provided only by judicial enactments, the Commission for Review of the Constitution has recommended that the access to justice be incorporated as an express fundamental right as mentioned in the South African Constitution, 1996.
Therefore, Article 21 guarantees the right to life and the right to liberty. It provides that no person shall be taken away from his life or personal liberty except according to the procedure explained by law. Here, Article 19 guarantees six Fundamental Freedoms to the citizens of India that is, freedom of speech and expression, freedom of assembly, freedom to form associations or unions, freedom to live in any part of the territory of India, and freedom of profession, occupation, trade, or business.Kesavanda Bharti vs. the State of Kerala,(1973)4 SCC 225; AIR 1973 SC 1461,
In this case, it was held that the ‘Rule of Law’ and ‘Democracy’ were among the ‘Basic Structures’ of the Indian Constitution not acquiescent to the amending process under Article 368 of the Constitution.
The right to these freedoms is not accurate or absolute but is subject to the reasonable restrictions which may be imposed by the State. Article 20(1) provides that no person shall be convicted of any of its offenses except for the violation of a law in force at the time of the commencement of the act charged as an offense is not subject to a penalty greater than that of which might have been inflicted under the law enforced at the time of the commission of the offense. According to Article 20(2), no person shall be prosecuted or punished for the same offense more than once. Article 20(3) makes it clear that no person accused of the offense or attempted any offense shall be compelled to be a witness against himself. In India, the Constitution is always been supreme and the three organs of the Government are Legislature, the Executive and Judiciary are subordinate to it. It provides a thought of one organ (e.g.-Legislature) upon another (eg-Judiciary) if its action is certainly Malahide and the citizen (individual) can challenge under Article 32 of the constitution if the action of the executive or legislature violates the fundamental rights of citizens before the judiciary system. In India, the meaning of the rule of law has been established, expanded, and applied differently in different circumstances by the judiciary. It is always regarded as a basic structure of the constitution and therefore, it cannot be abrogated or destroyed even by the parliament.
A.D.M Jabalpur v Shivakant Shukla, (on 28 April) ,1976 AIR1207,1976 SCR 172
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The question before the apex court was, whether any rule of law in India apart from Article 21 of the Indian Constitution is applicable or not. The court by majority held that there is no rule of law other than that of the constitutional rule of law. However, Justice Khanna did not agree with the above discussion view. He rightly said, “Even in the absence of Article 21 of the constitution, the State has no power to take away one’s life or liberty without the authority of law.”
Chief Settlement Commissioner Punjab v. Om Prakash,(1969)AIR 33,1968 SCR (3) 655
The Supreme Court restated, “In our Indian constitutional system, the important centered characteristic feature is the concept of the Rule of Law which means, in the present context, the authority of the law courts to test all administrative action by the standard of legality.
Judicial Activism Rule of law.
Judicial Activism means the court rulings based upon the political, personal, and prudence of the Judges' lead over the issue. It is a legal term that is referred to as the court rulings based, in full or in part, on the personal or political factors of the Judges, then the current or existing Legislation. Also, the progress of Society is dependent upon the proper application of law to its Judiciary needs and has to restructure the shape of the law to deal with certain rights and obligations. Initially, the court followed a policy of adhering to a narrow principle and tended to shy away from the progress of the law. However, the mere existence of a particular piece of beneficial legislation cannot solve the problems of society at large unless the judges interpret and apply the law to ensure its benefit to the benefactors. According to the Black’s Law Dictionary, Judicial activism is one philosophy of judicial decision-making by which the judges are allowed to make personal opinions about public policy, to guide their complete decisions.
D.K. Basu v. State of West Bengal, AIR 1997 SC 610
This is a landmark case that has been given by the apex court in the case of an increasing number of custodial deaths in India. Where all arrested person has arrestee Rights. Therefore, the right of female employees against sexual harassment in the place of work. The state must preserve the constitution of India and make amendments to the law, which are prima facie in violation of the rule of law. It is the vicarious liability of the state to cease these offenses as the protectors of the citizens who commit them.
Another important contribution of Indian courts has been the liberalization of the “rule of locus standi.” There is a lump sum of people in India who still fall under the category of ‘have-nots’ and are not even in the stand of awareness of their Indian constitutional rights. The principle underlying Order 1 Rule 8, Code of Civil Procedure has applied in the process of public interest litigation to entertain the massive class action and at the same time to check misuse of PIL. The appointment of Amicus Curiae in these concepts ensures objectivity in the proceedings. Judicial creativity of this kind has enabled the realization of the promise of socio-economical justice made in the Preamble to the Constitution of India. Supreme Court’s combined power under Article 32 and Article 142 has enabled it to grant relief on the appropriate cause for enforcement of Fundamental Rights. The particular horizon of the Rule of Law in India has expanded through judicial activism. The doctrine of public trust enhancement by judicial decision preserves the standard of ecology and environment are incapable of maintaining ownership of nature’s gift and are to be preserved in trust for future generations.
The Right to equality has been emphasized in the implementation of the Rule of Law by activating the statutory duty of investigative crime alleged to commit by holders of high public offices.
Whereas, in the case of Hussainara Kjatoon (I) v. the State of Bihar:
It was held that the prisoners who were under trial had severed the maximum prosecution without being charged for the offense enforced on them. The inhuman and savagely cruel conditions of the undertrial prisoners were reflected through the articles published in the newspaper. The apex court held that the right to a speedy trial is a fundamental right given and directed by the state authorities to provide free legal facilities to the under trial so that they could get justice, bail, or final release.
Vishakha v. the State of Rajasthan,(1997)6 SCC 241, here
The apex court found the authority in filling the legislative gap by making the law to maintain the Independence of the Judiciary and its role envisaged representing the minimum standards necessary to be observed in maintaining an independent and effective Judiciary are just a few pointers in that direction and can be referred to by the members themselves.
Conclusion
The perspective of Law in this article is certainly about, “to live with harmonious and to injure no other man also to render everyone his due.” Whereas, every government has a vital role to play in a democracy which is to protect the rights of all its citizens. In our country also, steps are being taken by both the parliament and judiciary to secure the phase of justice. Many Government schemes were brought for removing poverty across the country, and scholarships were issued to the weaker sections of society so that they can pursue their education without any financial burden.
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