Rule of Law vs Rule by Law

Source: Indian Express

Relevance: Points can be used in the essay paper and in your answers for GS Mains.

Synopsis: Chief Justice of India (CJI)’s views on what is meant by the term ‘law’ and how safeguarding constitutionalism is a shared responsibility.

What is meant by ‘law’?

• Law, in most general sense, is a tool of social control that is backed by the sovereign. But such a definition of law makes it a double-edged sword. It can be used not only to render justice but it can also be used to justify oppression.
• A law cannot really be classified as a “law” unless it imbibes within itself the ideals of justice and equity.
• An “unjust law” might not have the same moral legitimacy as a “just law”. But it might still command the obedience of some sections of the society to the detriment of others.

Rule by law vs Rule of law

The British colonial power used the law as a tool of political repression, enforcing it unequally on the parties, with a different set of rules for the British and for the Indians. It was famous for “Rule by Law”, rather than “Rule of Law”, as it aimed at controlling the Indian subjects.

• Thus, rule by law indicates that decisions are forced upon a citizenry while rule of law means a just application of the law for everybody, keeping in mind that the law doesn’t go against basic precepts of humanity.

Safeguarding constitutionalism – a shared burden

The importance of the judiciary shouldn’t blind us to the fact that the responsibility of safeguarding constitutionalism lies not just with the courts. All the three organs of the state, i.e., the executive, legislature, and the judiciary, are equal repositories of constitutional trust.

• The role of the judiciary and scope of judicial action is limited, as it only pertains to facts placed before it.
• This limitation calls for other organs to assume the responsibilities of upholding constitutional values and ensuring justice in the first place, with the judiciary acting as an important check.

What is Constitutionalism?

• It is an idea that calls for limitations or restraints on the powers available to the government.
• Constitutionalism recognizes the need for a government with powers but at the same time insists that limitations (checks and balances) be placed on those powers because unlimited power may lead to an authoritarian, oppressive, government i.e., arbitrary rule, which jeopardizes the freedoms of the people.
• Only when the Constitution of a country seeks to decentralize power instead of concentrating it at one point, and also imposes other restraints and limitations thereon, does a country have not the only constitution but also constitutionalism.