Predominance of Legal Spirit Meaning
The British people believed firmly in the theory of the divine state. The king was given the power to rule the people by divine authority (God). This theory spreads: “King can do nothing wrong, King is above the law.” Parliamentary democracy based on the principle of equality rooted in Great Britain. All people are subject to the same law and the same set of rules and regulations is called the rule of law. The rule of law was first established by Sir Edward Coke, the chief justice in England at the time of King James I. Coke was the first person to criticize the maxims of the divine concept. He firmly believed that the king should also be under the rule of law. The doctrine of the rule of law was later developed by A.V. Dicey in his book “Introduction to Constitutional Law (1885)”. The rule of law according to Dicey means that no human being is punishable or can legally suffer in body or property, except in flagrant violation of the law, and no human being is above the law. The concept of the rule of law therefore means the primacy of law over government.
Three principles proposed by A.V. Dicey 1. Absolute primacy of the law 2. Equality before the law 3. The supremacy of the spirit of law. Diey`s rule of law has three meanings: 1. Equality before the law: Dicey says it emphasizes the impartiality of the law. This means that there must be no difference between rich and poor, civil servants and non-civil servants, the majority and the minority, no one can be degraded and no one can be improved.
The law provides equal justice to all. 2. Rule of law alone: The rule of law rejects all kinds of arbitrariness and discretionary powers of government or officials. This implies that a man can be punished for breaking the law, but he cannot be punished for anything else. An alleged offence must be proven in the ordinary courts in accordance with the judicial procedure. 3. Constitutional law derives from ordinary law: it is generally accepted that the written constitution is the source of citizens` legal freedoms. However, this is not true, as Britain has an “unwritten constitution”.
The spirit of justice is the true source of law in England. The legal spirit is evident in its customs, conventions and judicial decisions. Dicey believes that individual rights and freedoms are better protected in Britain than in France. The main characteristics of the rule of law according to Dicey: a) The law does not recognize any special rights for individuals or groups of individuals. (b) There shall be no distinction between one individual and another by law on the basis of religion, race, sex, etc. (c) No one shall be punished without due process. (d) All shall be tried by the same court in accordance with the same law. (e) The rule of law does not allow the executive to exercise absolute and arbitrary powers. Merits of the rule of law: 1. It overthrows tyranny or anarchy.
2. It sets legal limits to state arbitrariness. 3. It shall provide safeguards for the protection of individuals. 4. It reflects the words of the Magna Carta: “No free man shall be caught, imprisoned, sick, ostracized, banished, or seek him, except by the legitimate judgment of his colleagues, or by the law of the land. 5. Legal norms are rooted in the country`s conventions and customs. 6. It gives the judiciary the freedom to control the executive branch that exceeds its powers.
7. The common good must be at the forefront. Criticism: Dicey explained the term rule of law in 1885. Since then, many changes have taken place. It therefore takes various forms because of the following conditions: 1. Certain privileges are granted to civil servants in the United Kingdom by the enactment of the Public Authorities Protection Act. 2. With the development of the concept of the welfare state, the role of the state has expanded. It confers decision-making power on administrative authorities, which sometimes rule on cases. 3. In urgent cases, fundamental rights shall be suspended by the executive. Modern concept of rule of law: The rule of law is a dynamic concept.
It cannot be understood as constituting a firm principle of law from which it is not possible to derogate. The concept of the rule of law was considered by the International Commission of Jurists, which met in New Delhi in 1959. The main conclusions are: 1. Rule of law – protecting and promoting the political and civil rights of individuals in a free society. 2.To creation of social, economic, educational and cultural conditions in which individuals can achieve their legitimate aspirations and dignity. 3.It must not interfere with religious beliefs or restrict freedom of expression or persons. 4.No discrimination against minorities. 5. Adequate safeguards against abuse of power by leaders. 6. There should be an independent judiciary with the certainty of a mandate free from legislative and executive interference.
7.The rule of law requires an independent legal profession. Rule of law in India: 1. The doctrine of the rule of law was unknown to ancient and medieval India. The king was the source of justice and the protector of all laws. He was considered above the law. 2. During British rule, the principle of the rule of law was neglected, although this principle was followed in Britain. The East India Company was interested in expanding its trade, revenues, and territorial expansion. The rule of law and fair justice have become less important. 3. As recently as 1694, the East India Company dismissed the Chief Justice of the Madras Admiralty Court, John Dollen, for the verdict against the Company on the pretext of accepting bribes.
She has always preferred civil servants of society as judges. Chief Justice Parker and Chief Justice Braddy II were also fired for refusing to subordinate their sentences to the wishes of the executive. 4. With the creation of the mayor`s courts under the Charter of 1726, judges began to work in the spirit of independence and the primacy of judicial law, which led to conflicts between judges and governors of the council. By the Charter of 1753, the judiciary was subordinated to the executive. 5. When the Supreme Court of Calcutta was established under the Charter of 1774, Chief Justice Impey acted in accordance with the rule of law. He was recalled to England when he came into conflict with the governor general. 6. Under the Crown, the Indian High Courts Act was passed in 1861 and the High Courts were largely competent. Legal commissions were set up with the aim of reforming legislation. The position of the judiciary improved considerably compared to the rule of the East India Company.
After independence: 1. The rule of law was welcomed by the authors of our constitution. The preamble ensures equality and equality of opportunity and the promotion of equality of opportunity for all. It grants citizens the most important fundamental rights. 2. Sections 12 to 35 of Part III shall be protected by the Supreme Court and Supreme Courts. 3. Article 14 of the Constitution provides: “The State shall not deny to any person equality before the law in the territory of India. However, it should be noted that there are few exceptions to the equality rule.
(4) Under section 361, the President or Governor of a State shall not be liable before any court for the exercise of the powers and duties of his office or for any act taken by him in the exercise of such powers and duties, provided that the conduct of the President may be reviewed on the basis of an indictment under section 61. which provided that any person could initiate proceedings against the governor of a state. 5. In accordance with article 20, paragraph 1, of the Constitution, no one may be convicted of a criminal offence, except for violation of a law in force at the time the alleged act was committed. 6. Article 21 emphasizes that no one shall be deprived of life or personal liberty unless this is done in accordance with the procedure laid down by law. 7. Article 14 provides that no debate may take place in Parliament on the conduct of a judge of the Supreme Court or of the Supreme Court in the performance of his duties, unless there is a request for an address to the President in which he prays for the removal of the judge as provided below.