Rule of Law
Rule of Law
Rule of Law
The concept of Rule of Law" is the building block on which the modern democratic society is founded. For
the successful functioning of the polity it is imperative that there is enforcement of law and of all contracts
based on law. Laws are made for the welfare of the people to maintain harmony between the conflicting forces
in society. One of the prime objects of making laws is to maintain law and order in society and develop a
peaceful environment for the progress of the people. The concept of Rule of Law plays an important role in
this process.
The term Rule of Law" is derived from the French phrase 'La Principe de Legality' (the principle of legality)
which refers to a government based on principles of law and not of men. [1] In a broader sense Rule of Law
means that Law is supreme and is above every individual. No individual whether if he is rich, poor, rulers or
ruled etc are above law and they should obey it. In a narrower sense the rule of law implies that government
authority may only be exercised in accordance with the written laws, which were adopted through an
established procedure. The principle of Rule of Law is intended to be a safeguard against arbitrary actions of
the government authorities. [2] The rule of law has been described as a rare and protean principle of our
political tradition". [3] The rule of law centrally comprises the values of regularity and restraint, embodied in
the slogan of a government of laws, not men". The term Rule of Law does not provide any thing about how
the laws are to be made, or anything specific like the Fundamental Rights or the Directive principles or
equality etc. but it provides for two basic concepts that is Law must be obeyed by the people and that the law
must be made in such a way that it is able to guide the behaviour of its subjects. Different legal theorists have
different approaches towards the concept of Rule of Law. Some believe that the rule of law has purely formal
characteristics, meaning that the law must be publicly declared, with prospective application, and possess the
characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of
the law. While other legal theorists believe that the rule of law necessarily entails protection of individual
rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives,
respectively labeled the formal and substantive approaches.
RESEARCH METHODOLOGY:
The Research Methodology adopted for the study is the Doctrinal Method of research. The Doctrinal Method
of research involves analysis of the statutes, existing secondary information from different sources like books,
internet, articles etc and then making a comparative study with the United States of America. This Country is
referred for the comparative study as because this country shares many common features with that of India like
both are Democratic Countries, both have a written Constitution etc. And also because this is a Country which
grants very wide discretionary rights of Freedom of Speech and Expression.
CONCLUSION:
In Indian Constitution in comparison to the American Constitution the emergency provision of the Executive
where Fundamental Rights including Freedom of Speech and Expression are suspended possessed a greater
threat in India. More than one third of the Indian Population are poor, illiterate and impoverished. Suspension
of their Fundamental Rights brings a larger misery to them. Therefore it can be said to be the violation of not
only their Fundamental Right but also of their Human Rights.
Talking about adopting the Present and Imminent Danger Test in the Indian circumstances the Supreme Court
has definitely tried adopting the principle in some cases. One of them is the case of R.P Ltd vs. Proprietors,
Indian Express Papers, Bombay (P) Ltd., [48] the Supreme Court considered the question of holding a balance
between two interest i.e Freedom of Speech and administration of Justice. The Present and Imminent Danger
Test was relied upon to justify the order of injunction issued by the Court prohibiting the Indian Express News
Papers from writing anything about issue of convertible debentures by Reliance Petro Chemicals. It, therefore
seems the Supreme Court has accepted the principle of Present and Imminent Danger Test to restrict Freedom
of Speech and Expression.
So in my view even though some restrictions are required to balance between the individual and the society
unless a clear cut is evolved mere suspension of Freedom of Speech and Expression will impose a greater
danger to the Nation