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JURISPRUDENCE

CAT II

TAKE HOME ASSIGNMENT

“RULE OF LAW”

Submitted By: KAMENDRA RAY Submitted To: Mr. N D Guru

Semester: VIII Assistant professor , Law

Section: B NUSRL, Ranchi.

Roll No.: 328

National University of Study and Research in Law, Ranchi


The rule of law is an ambiguous term that can mean different things in different contexts. In
one context the term means rule according to Law. In other context the term means rule under
Law. Rule of Law cannot exist without a transparent legal system. “Our approach is that there
can be no Rule of Law unless there is access to the basic sources of Law.”

If we ask a simple question to any citizen, “Humare desh me kiska shasan hai” (who rules in
our state or by whom the State governed). They simply answer with the name of any Political
Party. But our constitution empowered that there should be rule of law. The Court carries a
special obligation to safeguard the rule of law. An independent judiciary system is the protector
of citizen’s rights against the arbitrary use of power by the state, individuals or any other
organization. There is separation of powers but in real sense, every branches are trying to
become superior among themselves. There is not actual check and balance against the arbitrary
rule but it is used for the supremacy and to protect their supremacy. There is always conflict
between legislature and judiciary for the supremacy of branches but not for the public welfare.
The judicial branch must stay out of the political decisions.

Judicial impartiality is not only fair to the individual litigants but also necessary to maintain
the separation of powers among different branches of the government. Judges decide cases on
the basis of party interest rather than on the basis of law and evidence presented in a given case
which reflects the check and balances necessary to make the separation of powers. We always
talk about the reform of criminal justice system, police system but never talk and criticise the
court order. The rule of contempt of court is like a draconian rule.1

The “politics," broadly plays at least some role in shaping judicial decision making. Now the
question arises how (and to what degree) politics influences judicial behaviour that is, the
nature of the political forces affecting the courts, and the mechanisms by which those forces
are brought to bear. It is said that a legal system in a developing country dominated by
legislative action .This raises once more the question of relation between the Rule of Law and
legislation. We do have a clear responsibility to stand up and speak out when the constitution
itself is being violated. It is no defence to a constitutional violation to say our state is unwilling
or unable to pay for constitutional government.2

1
1985, “Political Judges and the Rule of Law”, in his A Matter of Principle, Cambridge, Harvard University
Press, pp. 9–32
2
Aristotle, the Politics (c. 350 BC), Stephen Everson (trans.), Cambridge: Cambridge University Press, 1988.

2
The Rule of Law is valuable and important because it establishes an environment that is
favourable to liberty. We value the Rule of Law because it takes some of the advantage the
power that is necessarily exercised over us in a political arena. In different ways, being ruled
through law, means that power is less arbitrary, more expectable, more impersonal, less
dictatorial, and less coercive.3

The huge number of cases that are pending in the courts which are just remaining along and
not reaching their logical conclusion. Most of these cases are trivial matters. Court proceedings
are also delayed due to many cunning lawyers who hijack the court proceedings for their own
benefits and take advantage of the leniency and inexperience of the judges. "In a society not
adequately governed by the Rule of Law, human beings will be traded as goods." It is estimated
that one million people, mostly women and children, are trafficked around the world each year,
trapped into involuntary servitude and sexual slavery is a direct consequence of the absence of
Rule of Law.4

The most important demand of the Rule of Law is that people who have given authority should
exercise their power within a limiting framework of well-established public norms rather than
in an arbitrary. In the practical scenario the thing is different, they exercise discretionary
manner on the basis of their own preferences or ideology. It contends that the government
should operate within a framework of law and it should be also accountable through law for
the unauthorized action. The law should be the same for everyone, so that no one is above the
law, and everyone has access to the law’s protection. Legal institutions and their procedures
should be available to ordinary people to uphold their rights, settle their disputes, and protect
them against abuses of public and private power.

According to the report of Malimath committee “More than 80 per cent of reported crimes went
unpunished due to several reasons and the loopholes in the present criminal justice system and
there was urgent need to review the system and take corrective measures to improve the
conviction rates,”. The courts do not pay adequate attention to the loss suffered by the victim.5

3
Theuns Viljoen, CEO, LexisNexis Pacific
4
The Many Meanings of "Politics" in Judicial Decision Making Bradley W. Joondeph Santa Clara University
School of Law,
5
Need for reform of criminal justice system: Justice Malimath

3
There is need of judicial revolution. The main cause of failure of justice system is more burden
of judges due to actual number of judges are not in proportionate. The least working hour of
the court and unnecessary holiday of court is also not accessing justice for every citizen.