The originator of the concept of rule of law was Sir Edward Coke the Chief Justice in James I Reign.
The concept of rule of law is of old origin. Greek philosophers such as Plato and Aristotle discussed the concept of rule of law around 350 BC. Plato wrote as Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state. Aristotle wrote as law should govern and those who are in power should be servant of the laws.

The derivation of the phrase as˜ Rule of Law is from the French phrase as˜la principe de legalite’ which implies principle of legality. By this phrase it refers to a government based on principles of law and not of men. One of the basic principles of Constitution is rule of law and this concept is up to standard in both India and America Constitution.

The doctrine of rule of law is the entire basis of Administrative law. As discussed by Aristotle, the concept of rule of law is grounded in the ideas of justice, fairness and inclusiveness. Today, an intricate chain of fundamental ideas is inappropriate in rule of law which further encompasses equality before law, equal treatment before the law for government, independence of judiciary, consistency, transparency and accountability in administrative law.

The doctrine of rule of law has its origin in England and it is one of the fundamental characteristics of the British constitutional system. It lays down that the law is supreme and hence the government must act according to law and within the limits of the law. It is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government officials.

“An Introduction to the law of the constitution” in which the term “Rule of Law” was given a comprehensive amplitude. In reality, it is a doctrine of England where there is no written constitution, so it is placed as a higher law there to check the validity of any law made by legislature. This doctrine shows that whatever law is present in our state, must be ruled over everyone, meaning thereby the law is supreme in all respect and in every sphere. It clarifies that “No one above the law”. Now a question arises, what the law is? The answer of this question resides in two principles that are-

•Due Process
•Procedure established by law.
Due Process is a doctrine of USA, and its ambit is not defined comprehensively, but its sphere is to be explained by judges as per the facts and circumstances of the case. It represents judicial supremacy and also there is a danger for judicial autocracy because the court if not self restrained may go beyond the limits set by the constitution.

But in India, there is a “Procedure established by law” doctrine prevails, adopted from

Constitution of Japan
and clearly enshrined in Article 21 of Indian Constitution. It shows parliamentary sovereignty because in India, law is made by the legislature, it restricts the judicial supremacy and only infers right to do literal interpretation not statutory construction of laws.There are also some other elements embedded in Rule of law, such as

• Absence of arbitrary power on the part of government, which is undoubtedly present in form of judicial review in which judiciary always look after the actions of other organs of government.

• Equality of all persons in the eye of the law, which can be justified on the basis of provisions of Article 14-18 with some reasonable restrictions.

• Rules of constitutional law are the results of the ordinary law of the land means the laws made by legislature must not be contrary to the provisions of constitution, otherwise it will be declared as null and void.

In England, Rule of Law flourished sovereignty of legislature, being unwritten constitution there is no higher law to circumscribe the plenary powers of the sovereign legislature but in India, there is written constitution and the concept of judicial review also present, so the doctrine of Rule of Law cannot be assigned a paramount place. But to promote the spirit of constitutionalism, the shadow of this doctrine reflects in various provisions of Indian Constitution in the form of fundamental principles of natural justice.

A V Dicey in his book The Law of the Constitution (1885) has given the following three implications of the doctrine of rule of law.

1. Absence of arbitrary power, that is, no man is punished except for a breach of law
2. Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low, official or non official) to the ordinary law of the land administered by the ordinary law courts
3. The primacy of the rights of individual, that is, the constitution is the result of the rights of the individual as defined and enforced by courts of law, rather than constitution being the source of the individual rights

Most legal theorists believe that the rule of law, popularized in 19th century, has purely formal characteristics, and possess the characteristics of generality, equality, and certainty, but there are no requirements with regard to the content and protection of individual rights.

Today Dicey’s theory of rule of law cannot be accepted in its totality. The modern concept of the rule of law is fairly wide and therefore sets up an ideal for any government to achieve. Accordingly – “The rule of law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. This dignity requires not only the recognition of certain civil or political rights but also creation of certain political, social, economical, educational and cultural conditions which are essential to the full development of his personality”.

The relevance of the Rule of Law is demonstrated by application of the following principles in practice:

1. The separation of powers between the legislature, the executive and the judiciary.
2. The law is made by representatives of the people in an open and transparent way.
3. The law and its administration is subject to open and free criticism by the people, who may assemble without fear.
4. The law is applied equally and fairly, so that no one is above the law.
5. The law is capable of being known to everyone, so that everyone can comply.
6. No one is subject to any action by any government agency other than in accordance with the law and the model litigant rules, no one is subject to any torture.
7. The judicial system is independent, impartial, open and transparent and provides a fair and prompt trial.
8. All people are presumed to be innocent until proven otherwise and are entitled to remain silent and are not required to incriminate themselves.
9. No one can be prosecuted, civilly or criminally, for any offence not known to the law when committed.
10. No one is subject adversely to a retrospective change of the law.

Rule of Law and Indian Constitution 

In India the Constitution is supreme. The preamble of our Constitution clearly sets out the principle of rule of law. It is sometimes said that planning and welfare schemes essentially strike at rule of law because they affect the individual freedoms and liberty in many ways. But rule of law plays an effective role by emphasizing upon fair play and greater accountability of the administration. It lays greater emphasis upon the principles of natural justice and the rule of speaking order in administrative process in order to eliminate administrative arbitrariness.

Important Components of Rule-of-Law Reforms

a) Court Reforms 

The efficiency of the courts is an important component in rule-of-law reforms as the existence of a judiciary is a fundamental aspect of the rule of law. 

To increase accountability and transparency, information technology systems may be installed to provide greater public access. To increase independence of the courts, the government can provide them with funding that will allow them to make their own financial and administrative decisions.

Recent aggressive judicial activism can also be seen as a part of the efforts of the Constitutional Courts in India to establish rule-of-law society, which implies that no matter how high a person, may be the law is always above him. Court is also trying to identify the concept of rule of law with human rights of the people. The Court is developing techniques by which it can force the government not only to submit to the law but also to create conditions where people can develop capacities to exercise their rights properly and meaningfully. However, separation of powers should be maintained.

b) Legal Rules 

Another important rule-of-law reform goal is to build the legal rules. As Fuller stated, “laws must exist.”

c) Institutional Encouragement on the Global Level 

To encourage additional country-specific development, in the early 1990s the World Bank and the International Monetary Fund (IMF) began conditioning financial assistance on the implementation of the rule of law in recipient countries. These organizations had provided aid to support initiatives in legislative drafting, legal information, public and legal education, and judicial reforms, including alternative dispute resolution. By conditioning funds on the establishment of the rule of law, the World Bank and the IMF also hope to reduce corruption, which undermines economic development by scaring away investors and preventing the free flow of goods and capital. Currently, in its Sustainable Development Goals (SDG), the United Nations (UN) also champions the rule of law as a vehicle to bring about more sustainable environmental practices.

Conclusion 

Rule of law is mostly believed to be a modern concept which is a gift of democracy however it is something which is fundamental to the very basic idea of good governance

We need to focus on the weaknesses and loopholes so that we can remove or plug them. Having said this, we cannot resist ourselves from adding that it is not that only the three organs of the State are to be blamed for the dismal state of rule of law in the society. Other actors like the media, civil society and even the ordinary citizen cannot run away from their respective responsibilities. Therefore it is equally important that all the actors of the society ensure for the maintenance of Rule of Law.

The concept of writ essentially originated in England & to issue appropriate writ was always considered to be a prerogative of the crown. One of such important prerogative writs originated in England is known as the writ of habeas corpus.

The writ of habeas corpus has always been looked upon as an effective means to ensure release of the detained person from the prison. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error

However, even when writ of habeas corpus is issued, it does not automatically exonerate the detained person from liability. It merely ensures his release from the prison & it does not have any bearing on his guilt or otherwise

In the case of the Additional district Magistrate of Jabalpur v.Shiv Kant Shukla2, popularly known as the Habeas Corpus case, which came up for hearing in front of the Supreme Court in December 1975. Given the important nature of the case, a bench comprising the five seniormost judges was convened to hear the case.

The bench opined in April 1976, with the majority deciding against habeas corpus, permitting unrestricted powers of detention during emergency. Justices A.N RAY, PN Bhagwati Y.V.Chandrachud and M.H Beg, stated in the majority decision
However, Justice Khanna resisted the pressure to concur with this majority view. He wrote in his dissenting opinion:
The Constitution and the laws of India do not permit life and liberty to be at the mercy question is whether the law speaking through the authority of the court shall be absolutely silenced and rendered mute… detention without trial is an anathema to all those who love personal liberty.

In the end, he quoted Justice: Charles Evans Hughes
A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the court to have been betrayed


In Kanu Sanyal v. District Magistrate3.
The court in that case held that habeas corpus was essentially a procedural writ dealing with the machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ, declared the court is a command addressed to the person who is alleged to have another person unlawfully in his custody, requiring him to bring the body of such person before the court in order that the circumstances of the detention may be enquired into and an appropriate judgment rendered upon judicial enquiry into the alleged unlawful restraint. The characteristic element of the writ and the theory behind the whole procedure observed the court was the immediate determination of the right of the applicant’s freedom and his release when the detention is found to be unlawful.

An application for habeas corpus can be made by any person on behalf of the prisoner as well as by the prisoner himself, subject to the rules and conditions framed by various High Courts. The writ of habeas corpus is an effective means of immediate release from unlawful detention whether in prison or private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient Legal necessities and technicalities are no impediments to the court entertaining the writ of habeas corpus if the basic facts are found. The writ of habeas corpus cannot only be used for releasing a person illegally detained but it will be also used for protecting him inhumane treatment inside the jail as stated in Sunil Batra case4

The scope of the writ of habeas corpus has considerably increased by virtue of the decision of the Supreme Court in Maneka Gandhi v. Union of India5 and also by the adoption of forty-fourth amendment to the Constitution. Since the judicial interpretation of Article 21 has extended the magnitude of the concept of the personal liberty and the Court introduced the element -of fairness and justness in the ‘procedure established by law’, now a writ of habeas corpus would lie if the law depriving a person of his personal liberty is not fair, just and equitable.

Conclusion
The roots of our Constitution lie deep in the finer, spiritual sources of social justice, beyond the melting pot of bad politicking feudal crudities and sublimated sadism, sustaining itself by profound faith in Man and his latent divinity

Writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. As it is rightly quoted by Pascal in Pensees.
“Justice without force is impotent force without justice is tyranny”.

Basic Structure of Constitution – Myth or Reality

Basic Structure of the Constitution, sometimes also called as “Basic features” of the Constitution, this doctrine was laid down by the Hon’ble Supreme Court in the case of Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225.

A brief overview of the doctrine of ‘Basic Structure of Constitution’ may show that it is just what the hon’ble Supreme Court has held to be as the Basic Structure of the Constitution in various cases that consists of the Basic Structure of the Constitution. But such a case would give rise to ambiguity, as it implies that there is no definite yard-stick to determine whether a particular provision is part of the Basic Structure or not. Such an ambiguity gives rise to wide discretionary powers of the Judge who is to decide as to a provision being a part of the basic structure or not as it would mean that it is solely dependant upon what the person sitting as Judge, in his personal opinion, thinks as to whether the provision is part of the basic structure or not. Such wide discretionary powers have been provided against by the Constitution by way of Article 14 which guarantees Right to Equality. Hence, such a case would mean that the doctrine is itself contradictory to the provisions of the very Constitution which it seeks to protect from ‘harm’. Hence, the doctrine becomes ultra vires and hence, void. So it would mean that the Doctrine of the Basic Structure is nothing but a myth created by the hon’ble Supreme Court.

But a deeper and closer look at the doctrine and the case laws of the hon’ble Supreme Court clearly shows that there is more to it than just what first meets the eye. When we speak of the Basic Structure, we don’t speak of the Articles of the Constitution or its provisions, but the principles which they enshrine. It may be said that Basic Structure consists of the principles keeping which in mind, the Constitution was framed. As for example, Objectives specified in the Preamble, Right to Equality, Right to Life and Personal Liberty, Right to Freedom of speech and expression, Separation of Powers, etc., may be called as some of such Principles and hence may be said to form the Part of Basic Structure of the Constitution. The provisions which enshrine these principles if changed in such a way that they serve the same purpose in the same way or in a better way, it would not imply changing the Basic Structure of the Constitution. To make my point more clear, I would like to cite the following example: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” These words don’t form part of the Basic Structure but the Principle of Right to Life and Personal Liberty which is guaranteed to every person through these words is what the Basic Structure consists of. So, if they were changed to, say “No person shall be deprived of his life or personal liberty except according to due procedure established by law.”, such a change doesn’t affect the essence of the original Article/Provision and still preserves the Right to Life and Personal Liberty in the way it was intended to be. It only makes the point as to the kind of procedure to be followed, more clear and precise. Hence, though an Article which forms the Basic Structure of the Constitution is changed, it does not imply changing the Basic Structure of the Constitution. But if it were changed to, say “No citizen shall be deprived of his life or personal liberty except according to procedure established by law.” or “No person shall be deprived of his life except according to procedure established by law.”, any such amendment or change would mean changing the Basic Structure of the Constitution because it tries to change the provision and make it in such a way which was not intended by the framers of the Constitution; as in this case, to limit the scope of the provision and hence take away the Right from a particular class of persons (in the former case), or to eliminate the Right to Personal Liberty (in the latter case). And these Principles can be clearly made out by a thorough reading of the provisions of the Constitution.

From the above discussion, it can be concluded that the Basic Structure is, in fact a reality, and there is more to it than just the Supreme Court case laws. Like the Doctrine of ultra vires which seeks to prevent any law/rule that violates the provisions of the Constitution, this Doctrine seeks to negate any attempt to change the Constitution in a ‘negative’ way and hence, preserve the sanctity of the Constitution. In the end, I would like to conclude by saying that the doctrine of Basic Structure of Constitution was framed and has been very rightly implemented by the Hon’ble Supreme Court in the various cases to protect the very Principles this great Nation is built upon.